Champagne v. Zoning Bd. of Review of Town of Smithfield, 1646

• Decision Date: 19 February 1965
• Docket Number: No. 1646,1646
• Citation: 99 R.I. 283,207 A.2d 50
• Parties: Armand J. CHAMPAGNE et al. v. ZONING BOARD OF REVIEW OF the TOWN OF SMITHFIELD. M. P.
• Court: Rhode Island Supreme Court

Page 50

207 A.2d 50

99 R.I. 283

Armand J. CHAMPAGNE et al. v. ZONING BOARD OF REVIEW OF the TOWN OF SMITHFIELD.

M. P. No. 1646.

Supreme Court of Rhode Island.

Feb. 19, 1965.

Francis J. Maguire, Providence, for petitioners.

Thomas F. Kelleher, Providence, for respondent board.

Kingsley L. Bennett, providence, for applicants.

POWER, Justice.

This petition for certiorari seeks to review the action of the respondent zoning board granting a special exception for the use of approximately six acres of land, located in a district zoned for farming, as camp sites and prays that the decision be quashed. The writ issued and pursuant thereto the appropriate papers were certified to this court.

It is established therefrom that Daniel W. and Corielynne E. Latham are the owners of a large tract of farm and wood land, consisting of 74 acres, designated as lot 6 on assessors plat 49 and fronting on Log Road. The Lathams, hereinafter called the applicants, had applied on March 18, 1964 for permission to devote a portion of the land for use as camp sites without specifying the number of sites to which the use would be devoted. At the conclusion of the hearing on this application on April 29, 1964, it was withdrawn without prejudice.

On May 14, 1964 application was again made, specifying the total number of proposed sites as twenty. Notice of a hearing on May 27, 1964 was duly published and the clerk of the board certified that written notice was mailed to adjacent property owners entitled to such notice under the ordinance. However, at the meeting on May 27 counsel for petitioner Donald M. Walker informed the board that his client had not received the required written notice. The petitioners contend this was fatal to the board's jurisdiction. We will consider such contention at a more appropriate juncture.

At the hearing applicant Daniel Latham testified that he and his wife had owned the land since 1938; that until 1948 it was used for dairy farm purposes; that since 1957 it had been put to recreational uses; that they had received a number of requests for the development of camp sites, including one from the Rhode Island Development Council; that the twenty sites would be confined to six acres, as shown on a plat plan introduced in evidence; and that flush toilets would be installed. He further testified that public convenience would be served; that adjoining property would not be impaired; and that the proposed use would not be contrary to public interest.

His testimony was supplemented by the introduction of a letter from the chief of the publicity and recreation division of the Rhode Island Development Council, a brochure from the Rhode Island Department of Agriculture and Conservation, Division of Forests, and several photographs together with a large map of the area in which the proposed camp sites would be located.

Several remonstrants objected on the grounds that the proposed use would depreciate the value of their property, constitute a nuisance, fire and traffic hazards and would attract irresponsible transients. Counsel for Walker, who claimed not to have received written notice, joined in these objections and argued that the special exception sought was not authorized under art. VI, sec. 2f, of the ordinance, which provides as follows:

'Recreation Uses. Permit in an F zone outdoor commercial recreation uses such as a golf course, camp for boys and girls, rod and gun club, and bathing beach, but not including the commercial recreation uses listed in Art. II Sec. 5a. In granting permission the Board may make regulations concerning hours of operation, parking, and other matters as it may deem necessary to prevent nuisance to nearby property.'

The first section of art. VI provides that before the board may authorize a special exception, the applicant shall show that the public convenience and welfare will be served and that the appropriate use of neighboring property will not be substantially or permanently injured.

After considering the evidence the board granted a special exception and it is apparent that they based their decision on the provisions of art. VI, sec. 2f. In doing so the board found that authorizing the use applied for would not be contrary to public interest or detrimental to adjacent property. They further found that 'the proposed use of said property would contribute to the economy of the State of Rhode Island in that proper tourist infiltration will be invited and also will assist in the preservation of a wildlife area, and * * * the operation of camp sites at the location in question will contribute beneficially to the economy of the Town of Smithfield * * *.' The board also directed 'that any directional signs shall be in good taste and in keeping with the area and that all State and Town regulations shall be strictly adhered to.'

The petitioners made several contentions in support of their position that the decision of the board is invalid and we shall consider them seriatim.

They argue first that the...