Marks v. Zoning Bd. of Review of City of Providence

• Decision Date: 20 October 1964
• Docket Number: No. 1578,1578
• Citation: 98 R.I. 405,203 A.2d 761
• Parties: Lena MARKS et al. v. ZONING BOARD OF REVIEW OF the CITY OF PROVIDENCE. M. P.
• Court: Rhode Island Supreme Court

Page 761

203 A.2d 761

98 R.I. 405

Lena MARKS et al. v. ZONING BOARD OF REVIEW OF the CITY OF PROVIDENCE.

M. P. No. 1578.

Supreme Court of Rhode Island.

Oct. 20, 1964.

Abraham Marks, Providence, for petitioners.

William E. McCabe, City Sol., Harry Goldstein, Assistant City Sol., for respondent.

JOSLIN, Justice.

This is a petition for a writ of certiorari brought to review a decision of the zoning board of review of the city of Providence granting an application for a variance in the terms of the zoning ordinance. Pursuant to the writ the respondent board has certified the pertinent records to this court.

The only question we need consider is the power of the board to reverse a decision made approximately eighteen months earlier denying a petition for a variance or exception affecting the same premises.

In Day v. Zoning Board of Review, 92 R.I. 136, 167 A.2d 136, we held and in Churchill v. Zoning Board of Review, R.I., 201 A.2d 480, we reaffirmed our position that a zoning board, on a subsequent application brought by the same applicant for substantially similar relief, is without power to reverse its prior decision in the absence of a material change in circumstances intervening between the two decisions.

The conclusion we reached was premised upon giving finality to proceedings in zoning matters. That conclusion has its roots in the principle that persons affected by a decision in zoning matters ought not to be twice vexed for the same cause and are entitled to have their rights and liabilities settled by a single decision upon which reliance may be placed.

We did not in Day and Churchill, nor do we now, foreclose the jurisdiction of a zoning board to hear successive applications relative to the same premises nor did we then, nor do we now, decide that a zoning board is powerless to reverse an earlier final determination. Such an extension of the principle of finality in administrative proceedings would deprive a zoning board of some of the flexibility of action with which it has been endowed by the legislature. Moreover, a strict rule of res adjudicata in zoning matters could have unfortunate consequences such as denying a landowner once refused relief the right to a reconsideration of an application based upon intervening circumstances resulting in a deprivation of all beneficial use of his property. Such an undesirable result could have serious constitutional implications and would do violence to the expressed legislative will authorizing zoning boards to vary the terms of zoning ordinances in hardship cases.

The power to reverse an earlier determination, however, is a qualified one and is not to be exercised unless there has been a substantial or material change in circumstances intervening between the two decisions. A reversal of a prior denial of relief should ordinarily be predicated upon a factual situation differing materially from that existing at the time of the earlier decision and the occurrence of a substantial change in conditions is generally a condition precedent to the exercise of jurisdiction.

Whether the condition precedent has been satisfied is, in the first instance, for the board to determine on the legal evidence before it. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 129 A.2d 619. On that issue, just as on the other issues wherein the exercise of the board's discretion is sought, the burden of proof is on the...