M.B.T. Const. Corp. v. Edwards

• Decision Date: 07 July 1987
• Docket Number: No. 85-73-A,85-73-A
• Citation: 528 A.2d 336
• Parties: M.B.T. CONSTRUCTION CORP. v. Frank C. EDWARDS et al.
• Court: Rhode Island Supreme Court

Page 336

528 A.2d 336

M.B.T. CONSTRUCTION CORP. v. Frank C. EDWARDS et al.

No. 85-73-A.

Supreme Court of Rhode Island.

July 7, 1987.

Kathleen Managhan, Patrick Hayes, Corcoran Peckham & Hayes, Newport, for plaintiff.

MaryJo Carr, Newport, for defendant.

OPINION

SHEA, Judge.

This matter is before the Supreme Court on an appeal from a declaratory judgment entered in the Superior Court. The trial justice declared invalid a portion of the zoning code of the city of Newport governing nonconforming uses destroyed by fire. The city officials (the defendants) have appealed from that judgment. We affirm.

The plaintiff is the owner of a five-unit condominium located at 9 1/2 Narragansett Avenue, Newport, Rhode Island. In July of 1982 the property suffered a major fire leaving all five units uninhabitable. A major portion of the building was razed after the fire, and plaintiff did not request a permit to rebuild, until after March 1984 "because it was without the necessary funds to undertake this reconstruction work." The building inspector and the director of planning for the city of Newport refused permission to rebuild, relying on §§ 1276.03 and 1276.07 of the Newport zoning code. Thereafter plaintiff brought an action for declaratory judgment in the Superior Court, seeking a declaration that these sections of the zoning code were illegal, null and void, and ultra vires of G.L. 1956 (1980 Reenactment) § 45-24-10.

We shall first address defendants' argument that plaintiff could not seek relief in the Superior Court by way of a petition for declaratory judgment until it had exhausted its administrative remedies. It argues that plaintiff should have first appealed the denial of its application by the building inspector to the zoning board of review under § 45-24-16. We disagree.

If plaintiff was seeking a reversal of a ruling by the building inspector based on an erroneous interpretation of the ordinance, which relief the board of review has the power to grant, then the exhaustion-of-administrative remedies rule would have required an appeal to the board. That is not the case before us, however. Here plaintiff seeks a ruling about the validity and enforceability of § 1276.07 itself. The board does not have the authority to consider that question. As this court held in Frank Ansuini, Inc. v. City of Cranston, 107 R.I. 63, 73, 264 A.2d 910, 915-16 (1970),

"the instant plaintiff asserts patent invalidity, and the determination of that question is for the courts. See State v. Goldberg, 61 R.I. 461, 1 A.2d 101. Again, unlike the situation in Nardi, it would have been futile for the instant plaintiff to have appealed to the board of review, since that agency lacked authority to declare as being a nullity a provision of the regulations which, like the board of review itself, was a creature of the municipal legislature. See Arc-Lan Co. v. Zoning Board of Review, 106 R.I. 474, 261 A.2d 280. In such circumstances, the courts will not deny judicial relief on the ground that one invoking its protection has first failed to do that which would be futile. See 73 C.J.S. Exhaustion of Administrative Remedies in General, § 41, and the cases therein cited."

The principal issue before us concerns the validity of § 1276.07 of the Newport zoning ordinance. ¹ That section of the ordinance provides in pertinent part that any building constituting a nonconforming use that is destroyed by fire or other casualty to an extent of up to but not more than 80 percent of its replacement value shall not be rebuilt unless the reconstruction of the nonconforming use is started within the twelve-month period following the date of the loss. The reconstruction must be pursued diligently until it is completed and must be completed within twenty-four months of the casualty.

The parties agree that the application for permission to rebuild was submitted to the building inspector more than twelve months after the fire. They also agree that the reason the application was not submitted earlier was plaintiff's lack of money needed to undertake the reconstruction work.

The building inspector rejected the application under two subsections of § 1276. Section 1276.03 provides that a nonconforming use of a structure or land, once abandoned, will not be resumed or replaced by another nonconforming use. Section 1276.07 as stated prohibits the resumption or replacement of a nonconforming use unless reconstruction is undertaken within twelve months of a casualty loss. The plaintiff argues that the twelve-month limitation fixed by the city council in its ordinance is invalid in that it exceeds the authority given the council in the enabling legislation.

The enabling legislation, § 45-24-10 reads as follows:

"Pre-existing uses saved.--No ordinance enacted under the authority of this chapter shall prevent or be construed to prevent the continuance of the use of any building or improvement for any purpose to which such building or improvement is lawfully devoted at the time of the enactment of such ordinance."

In A.T. & G., Inc. v. Zoning Board of Review of North Smithfield, ...