May-Day Realty Corp. v. Board of Appeals of City of Pawtucket

• Decision Date: 11 June 1970
• Docket Number: No. 727-,MAY-DAY,727-
• Citation: 267 A.2d 400,107 R.I. 235
• Parties: REALTY CORPORATION v. BOARD OF APPEALS OF the CITY OF PAWTUCKET. m. p.
• Court: Rhode Island Supreme Court

Page 400

267 A.2d 400

107 R.I. 235

MAY-DAY REALTY CORPORATION v. BOARD OF APPEALS OF the CITY OF PAWTUCKET.

No. 727-m. p.

Supreme Court of Rhode Island.

June 11, 1970.

As Amended July 2, 1970.

Francis R. Foley, Pawtucket, for petitioner

Victor J. Beretta, City Solicitor, Pawtucket, J. Ronald Fishbein, Providence, for respondent.

OPINION

JOSLIN, Justice.

This is a petition for a writ of certiorari to review a decision of the Zoning Board of Review of the City of Pawtucket denying the application of May-Day Realty Corporation for an exception or a variance from the zoning ordinance of that city to permit the construction of a 100-unit apartment building on land owned by May-Day and located in an RS district. The writ issued, and the pertinent records have been certified.

At the outset we reject the argument of remonstrants that the board lacked jurisdiction to act on this application because more than ten years ago it denied May-Day permission ¹ to construct apartment buildings on one of the two lots affected by this application. That argument depends for its validity upon the principle of administrative finality which in the zoning field bars successive applications for substantially similar relief unless a substantial or material change of circumstances has occurred in the interval between the two proceedings. Gilman v. Zoning Board of Review, 103 R.I. 612, 240 A.2d 159; Marks v. Zoning Board of Review, 98 R.I. 405, 203 A.2d 761. While the rule is sound, it is operative only if the relief sought in each case is substantially similar. In the earlier case May-Day applied for a permit to erect two ten-family apartment houses on one of the two lots here involved; now it desires to construct a single apartment building containing 100 units with underground parking for 125 automobiles. Obviously, the two are so dissimilar that the doctrine of administrative fimality is inapplicable.

The question of petitioner's entitlement to an exception requires but little discussion. In Pawtucket the zoning ordinance enumerates with respect to the several districts into which the city is divided those uses which are permitted, those which may be authorized by a grant of a special exception, and those which are prohibited. Because an apartment house of the type proposed is a prohibited use in an RS district, the board properly concluded that it lacked jurisdiction under the ordinance to grant a special exception for its construction. Colello v. Zoning Board of Review, R.I., 250 A.2d 520, 521. May-Day, while conceding that the board was powerless to act under the ordinance, argues nonetheless that it could have acted under an alternative source of power which it purports to find in G.L.1956, § 45-24-13 of the enabling legislation. ² That enactment, in petitioner's view, accomplishes a twofold purpose. It obliges local legislatures to authorize zoning boards in specified situations to make special exceptions to the terms of the ordinance, and at the same time it vests a zoning board with direct authority to grant an exception whenever the use applied for is reasonably necessary for the convenience or welfare of the public. It is to the latter source that May-Day adverts when it argues that the board could have acted notwithstanding the circumscribing provisions of the ordinance. That argument relies solely upon Baker v. Zoning Board of Review, 82 R.I. 432, 111 A.2d 353. That case, however, was decided under special enabling legislation; it is limited to its own facts; it is inapposite to cases like this which arise under the general enabling legislation. Rafanelli v. Zoning Board of Review, 103 R.I. 208, 210, 236 A.2d 262, 263.

Finally, there is the question of whether or not relief should have been granted on variance grounds. Customarily zoning boards incorporate their factual determinations and the legal principles upon which they rely in a written decision, which under our rules should be so prepared as to give the parties, the public and a reviewing court a clear understanding of the factual as well as the legal basis for the ultimate judgment. Here, the decision is not in writing, but instead, consists of a stenographic transcription of the comments of each board member with respect to the variance issue together with a recordation of their vote ³ on whether or not the permission applied for should be granted.

While we do not necessarily fault the board's substitution of a stenographically transcribed post-hearing commentary for a comprehensive written decision, we certainly neither recommend nor encourage the practice. The pitfalls are obvious, and the extemporanceous remarks of the board members in this case make this abundantly evident. The issue here, however, is not the form, but the content of the decision; and what we must decide is whether the board members resolved the evidentiary conflicts, made the prerequisite factual determinations, and applied the...