Reynolds v. Zoning Bd. of Review of Town of Lincoln

• Decision Date: 04 June 1963
• Docket Number: No. 1494,1494
• Citation: 191 A.2d 350,96 R.I. 340
• Parties: James F. REYNOLDS v. ZONING BOARD OF REVIEW OF the TOWN OF LINCOLN. M. P.
• Court: Rhode Island Supreme Court

Page 350

191 A.2d 350

96 R.I. 340

James F. REYNOLDS v. ZONING BOARD OF REVIEW OF the TOWN OF LINCOLN.

M. P. No. 1494.

Supreme Court of Rhode Island.

June 4, 1963.

Gunning & LaFazia, Bruce M. Selya, V. James Santaniello, Providence, for petitioner.

Harry W. Asquith, Town Sol. for Town of Lincoln, for respondent.

ROBERTS, Justice.

After our decision in the above case was filed we granted the petitioner's motion for reargument, Reynolds v. Zoning Board of Review, R.I., 187 A.2d 667, 670, stating therein that reargument was to be limited to the question whether the board had 'the right to grant a variance without a showing of unnecessary hardship in this case.'

In our original decision we denied and dismissed the petition for certiorari and sustained the action of the board in granting an application for a variance from the enforcement of certain provisions of art IV of the zoning ordinance. These provisions prohibit the location of buildings within twenty-five feet of the lot line. The action of the board permitted the applicant to extend a building being erected to be used as a bowling alley to a point only ten feet from the lot line.

The petitioner's argument, as we understand it, is twofold. He first questions the authority of the board of review to grant a variance without a prerequisite finding of the unnecessary hardship contemplated in the enabling act, G.L.1956, § 45-24-19(c), and secondly, its jurisdiction to hear and determine an application to vary ordinance provisions which prescribe lot lines.

His first contention misconceives the nature of the board's decision. It grants relief from a literal enforcement of the provision of the ordinance which prescribes lot lines in commercial zones. In our original opinion we concluded that while lot-line limitations are frequently set out in the form of provisions of a zoning ordinance, they are not regulatory of the use of land as such regulation inheres in the concept of zoning. In Viti v. Zoning Board of Review, R.I., 166 A.2d 211, we considered the nature of the ordinance provisions which prescribed lot lines and said that these ordinance provisions 'are regulations governing a permitted use as distinguished from the limitations on the use which one may make of his property.' In other words, it is our opinion that there is a fundamental difference between zoning enactments that classify land uses and thereby designate the uses to which land may be put and the enactment of rules which are intended only to prescribe the manner in which such uses as are permitted may be exercised.

The true variance, for which provision is made in § 45-24-19(c) of the enabling act, is designed to preserve the constitutionality of the legislation. It is invoked to avoid the confiscatory effect that would follow a literal enforcement of some term of a zoning ordinance operating to deprive an owner of all beneficial use of his land. See Denton v. Zoning Board of Review, 86 R.I. 219, 133 A.2d 718. Where an owner of land asserts that the literal application of some provision of a zoning ordinance would be confiscatory by reason of its depriving him of all beneficial use thereof, the burden is on him to establish the confiscatory effect thereof by showing that unnecessary hardship will result from a literal enforcement of such provision.

It cannot be argued reasonably, except in some peculiar circumstance, that a provision of the zoning ordinance that merely prescribes lot-line restrictions must be found to be confiscatory by a board of review in order to give the owner relief therefrom. We are of the opinion that to impose a burden on a landowner of proving that degree of...