A. Ferland & Sons, Inc. v. Zoning Bd. of Review of City of East Providence, 462-M

• Decision Date: 24 March 1969
• Docket Number: No. 462-M,462-M
• Citation: 105 R.I. 275,251 A.2d 536
• Court: Rhode Island Supreme Court
• Parties: A. FERLAND & SONS, INC. v. ZONING BOARD OF REVIEW OF the CITY OF EAST PROVIDENCE. P.

Page 536

251 A.2d 536

105 R.I. 275

A. FERLAND & SONS, INC. v. ZONING BOARD OF REVIEW OF the CITY OF EAST PROVIDENCE.

No. 462-M.P.

Supreme Court of Rhode Island.

March 24, 1969.

[105 R.I. 280] William F. Fidalgo, East Providence, for petitioner.

Stephen R. Walsh, City Sol., East Providence, for respondent.

OPINION

ROBERTS, Chief Justice.

This petition for certiorari was brought to obtain a review of the action of the zoning board of review of the city of East Providence denying the petitioner's appeal from a refusal on the part of the city building inspector to issue a building permit to erect an eight-apartment building on lots 104 and 332 of assessor's plat 69 of that city. The writ issued, and pursuant thereto the respondent has certified to this court the record in the cause.

The record discloses that petitioner on May 22, 1964, filed an application for an exception or special permit to erect a multi-apartment dwelling in a residence A zone. At that time an apartment building was a conditionally permitted use in such zone. On May 24, 1965, the board, finding that a grant of the relief sought would substantially serve the public convenience and welfare and would not substantially or permanently injure the appropriate use of surrounding property, granted the exception. It was subject to several conditions, one of which was that '* * * work commence within six (6) months from the granting of this petition.' On June 7 a number of remonstrants prosecuted an appeal to the supreme court from the decision granting the exception.

It is important to note that on November 29, 1966, while the appeal was pending, the city council amended the zoning ordinance changing the use classification of the lots in question to R-3, in which areas multiple dwellings are not a permitted use and are not the subject of an exception. It further appears that on May 1, 1967, this court, on its own motion, dismissed the appeal of the remonstrants for want of prosecution. On March 19, 1968, petitioner applied to the building inspector for the issuance of a building permit pursuant to the special exception that had been granted it, basing this request on the dismissal of the remonstrants' appeal.

Subsequently the building inspector, upon the advice of the city solicitor, denied the request for the issuance of a building permit. The petitioner thereupon requested the zoning board of review to review the decision of the building inspector denying the issuance of the permit, pursuant to the provisions of § 45-24-19(a). On May 20 the board, apparently without hearing, held that the matter was one in which petitioner would be required to file a new application for relief under the ordinance.

The petitioner, while raising several contentions concerning failure to have notice with respect to the dismissal of the remonstrants' appeal in the supreme court, is here clearly appealing from the decision of the board of review denying its appeal from the refusal of the building inspector to grant the building permit. The right of petitioner here to the issuance of such building permit rests upon the validity, at the time of such request, of the special exception granted it in May 1965. If the effect of the amendment of the ordinance in 1966 was to nullify the exception granted in 1965, then petitioner's right to a building permit, which right derived from the grant of the exception, was revoked. The question then is: What was the effect of the 1966 amendment on this particular petitioner's rights?

In Shalvey v. Zoning Board of Review, 99 R.I. 692, 210 A.2d 589, this court for the first time considered the effect of a subsequent amendment of a zoning ordinance on uses that had accrued...