Goodman v. Zoning Bd. of Review of City of Cranston

• Court: Rhode Island Supreme Court
• Writing for the Court: JOSLIN
• Citation: Goodman v. Zoning Bd. of Review of City of Cranston, 254 A.2d 743, 105 R.I. 680 (R.I. 1969)
• Decision Date: 16 June 1969
• Docket Number: No. 591-M,591-M
• Parties: Elliot R. GOODMAN et ux. v. ZONING BOARD OF REVIEW OF the CITY OF CRANSTON. P.

Page 743

254 A.2d 743

105 R.I. 680

Elliot R. GOODMAN et ux. v. ZONING BOARD OF REVIEW OF the CITY OF CRANSTON.

No. 591-M.P.

Supreme Court of Rhode Island.

June 16, 1969.

Kelly & Butterfield, Charles Butterfield, Jr., Providence, for petitioners.

Jeremiah S. Jeremiah, Jr., Asst. City Solicitor, Cranston, for respondents.

Monti & Monti, Francis A. Monti, Marcaccio & Marcaccio, Thomas L. Marcaccio, Jr., Providence, amicus curiae.

OPINION

JOSLIN, Justice.

This petition for a writ of certiorari was brought by remonstrants to review a decision of the zoning board of the city of Cranston granting the applicants both an exception and a variance and thereby permitting them to construct and operate in a C-1 district a complete automobile dealership facility, a use which will include activities some of which are permitted in a C-4 district and others of which are authorized only in a C-5 district. ¹ For the past 44 years the premises to which the application relates have been devoted to the conduct of a nursery business. That use, permitted under the ordinance only in a C-4, C-5 or S-1 district, is nonconforming in the C-1 district where the property is located.

In the view we take of this case an extensive reference to the evidence developed at an extended hearing is unnecessary. It is sufficient to observe by way of background that Forest Hills Nurseries, Inc. is the owner of the premises, and Ford Leasing Development Company has an option to purchase the property 'for a sum in excess of $500,000 and less than $600,000.' Both corporations joined in the application. The tract to which the application relates is irregularly shaped; it contains approximately 313,000 square feet, and fronts for about 400 feet on Reservoir Avenue, a six-lane, 80-foot-wide heavily traveled highway; and it is abutted on the west by the Pocasset River. Because the property is low-lying and in some areas below the grade of adjoining streets it is subject to flooding from the river.

The board's grant of an exception is susceptible to summary disposition. It acted pursuant to section 30-49(m), ² and granted the exception after first finding that the conditions precedent prescribed by the ordinance had been established and that the proposed complete automobile dealership facility would be no more harmful or objectionable in the general neighborhood where the premises are located than is the existing nonconforming nursery. Since then, however, and prior to the case being argued here, the ordinance was amended and the provision permitting a nonconforming use to be changed to one no more harmful or objectionable was deleted. The effect of that amendment was to negate and render nugatory the board's action since this court reads zoning ordinances as they are written when the case comes here for review, rather than as they were written when the board acted, A. Ferland & Sons v. Zoning Board of Review, R.I., 251 A.2d 536; Tantimonaco v. Zoning Board of Review, 100 R.I. 615, 218 A.2d 480.

That the act was amended is without any significance on the variance question since the board's authority to grant that kind of relief stems from the enabling legislation, rather than from the zoning regulations enacted by the local legislature. Coderre v. Zoning Board of Review, R.I., 230 A.2d 247; Gardiner v. Zoning Board of Review, 101 R.I. 681, 226 A.2d 698.

When we examine the variance grant we need go no further than the enabling legislation requirement which imposes upon an applicant for that kind of relief the burden of establishing that, owing to special conditions, a literal enforcement of the zoning ordinance regulations will result in unnecessary hardship. See G.L.1956, § 45-24-19(c). That requirement has many times been defined and explained. It presupposes that a rigid insistence upon the property being devoted to a use permitted by the zoning regulations will deprive its owner of all beneficial use of his property and will therefore be confiscatory. Bilodeau v. Zoning Board of Review, R.I., 235 A.2d 665; R-N-R Associates v. Zoning Board of Review, 100 R.I. 7, 210 A.2d 653; Kraemer v. Zoning Board of Review, 98 R.I. 328, 201 A.2d 643.

To establish the prerequisite hardship these applicants were required to prove that the property could not be beneficially utilized or profitably operated if used as a nursery or for any other purpose allowed in a C-1 district. Griffin v. Zoning Board of Review, 98 R.I. 233, 200 A.2d 700; Cole v. Zoning Board of Review, 97 R.I. 220, 197 A.2d 166; Strauss v. Zoning Board of Review, 72 R.I. 107, 48 A.2d 349. To show that some other use not allowed in a C-1 district might be more profitable or that the return would be more favorable if the relief sought were granted is not enough. Vican v. Zoning Board of Review, R.I., 238 A.2d 365; Sundin v. Zoning Board of Review, 98 R.I. 161, 200 A.2d 459. The only evidence the applicants offered to satisfy their burden was adduced from an officer of Forest Hills Nurseries, Inc., and from a real estate expert who appeared on their behalf.

The corporation officer testified that the property was no longer large enough to supply the needs of his company's business. That business, he said, had vastly expanded over the 44 years it had been in existence, and he went on to say that to meet those increased needs the company was also operating from a 300-acre tract in another part of the state. He concluded that '* * * it is economically unfeasible to operate and grow any crops on seven acres of business property.' That statement, obviously intended to establish that undue hardship will result if the use of the premises is restricted to permissive possibilities, does not achieve its purpose. It is nothing more...