Shalvey v. Zoning Bd. of Review of City of Warwick

• Decision Date: 25 May 1965
• Docket Number: No. 1543,1543
• Citation: 99 R.I. 692,210 A.2d 589
• Parties: Thomas C. SHALVEY, Jr., et al. v. ZONING BOARD OF REVIEW OF the CITY OF WARWICK. M. P.
• Court: Rhode Island Supreme Court

Page 589

210 A.2d 589

99 R.I. 692

Thomas C. SHALVEY, Jr., et al. v. ZONING BOARD OF REVIEW OF the CITY OF WARWICK.

M. P. No. 1543.

Supreme Court of Rhode Island.

May 25, 1965.

Hendel, Strauss & Surdut, Raymond J. Surdut, Providence, for petitioners.

James R. Morriss, City Sol., Warwick, for respondent Zoning Board of Review.

Temkin, Merolla & Zurier, Amedeo C. Merolla, Carl B. Lisa, Providence, for remonstrants.

ROBERTS, Justice.

The record returned to this court pursuant to a writ of certiorari issued under G.L.1956, § 45-24-20, discloses that in October 1962 an administrative officer of the city of Warwick, namely, the building inspector, issued four permits which purported to authorize the applicant therefor to erect a multifamily dwelling and to install heating and plumbing facilities therein located on certain house lots in the city of Warwick. At the time the permits were issued multifamily dwellings were a permitted use on the lots in question. On October 22, 1962 petitioners took an appeal to the zoning board from the issuance of each such permit. After conducting a hearing on the merits with respect to one such permit on December 6, 1962, the board continued hearing on the remaining appeals to January 15, 1963, reserving decision on the appeal that had been heard. On January 15, 1963 the petitioners filed with the board a motion to deny the permit issued in each case 'On Ground Of Change In Zoning Ordinance.' The board denied these motions after consideration.

At the same time, to wit, January 15, 1963, the board issued a decision in writing on each of the appeals pending before it, finding in each such decision that petitioners had not established any of the grounds upon which the appeals were originally based. The board also found that in issuing the building permit under consideration the building inspector had 'acted within his power in issuing Building Permit No. C-09812 under the ordinances in effect at the time of the issuance of said permit; therefore, be it resolved that this appeal be denied on those grounds.' The three remaining appeals were likewise denied for want of proof of the grounds on which they originally were taken and because 'a building permit had been issued previously by the Building Inspector within his power under the ordinance in effect at the time of the issuance of said permit * * *.' It is from these decisions of the board that petitioners now seek a review under the writ of certiorari provided for in the statute. Being of the opinion that the validity of the issuance of the building permit will, in effect, control our decision as to the validity of the issuance of the other permits here under consideration, we will, in discussing the issues raised, refer only to that permit, intending, however, that whatever conclusions are reached by us will apply to the issuance of the remaining permits challenged by petitioners.'

Two facts essential to a determination of the issue here raised are not in dispute. The first is that at the time of the issuance of the permit the erection of dwelling houses providing for occupancy by two or three families was a permitted use on lots located in an A-7 district. The second is that subsequent to the issuance of the permit, to wit, on December 20, 1962, the city council enacted an amendatory ordinance wherein it provided that only dwellings to be occupied by one family could be erected on lots in such an A-7 classification. The date upon which this amendatory ordinance became effective is, in our opinion, without materiality in the circumstances of this case.

An examination of the record persuades us that the respondent board rested its decision on a conclusion that at the time the permit issued the use that was authorized therein was a permitted use under the ordinance and one to which the landowner was entitled as of right. The board made no finding that the landowner had, in reliance on the permit issued, proceeded to the construction of the buildings in question or to incur obligations relating to the use authorized in the permit. In these circumstances we can infer only that the board assumed that the issuance of the permit conferred upon the permittee a vested right to make such a use of the land and that such a right, once acquired, could not be restricted or revoked by a subsequent amendment to the ordinance prohibiting the use authorized in the permit. This is a misconception of the law relating to the viability of such permits.

This court has not passed on the question of whether an amendment to a zoning ordinance that eliminates in a particular district a use that theretofore had been a permitted use, to which a landowner was entitled as of right, operates to restrict or revoke a permit authorizing the prior use issued when that use was lawful. This issue was present in two cases heard by this court but was decided in neither of them.

In Harrison v. Hopkins, 48 R.I. 42, 135 A. 154, a building permit had issued authorizing the erection of a two-family dwelling, a permitted use at the time of the issuance thereof. Subsequently an amendment to the ordinance eliminated such use, and, construction being only partially completed, the building inspector revoked the permit on the ground that the authorized use had become illegal. This court concluded that a refusal to permit the owner to complete the dwelling constituted unnecessary hardship and proceeded to grant his prayer for a variance without deciding the question of the effect of the amendment of the ordinance on the validity of the permit. In Elmcrest Realty Co. v. Zoning Board of Review, 78 R.I. 432, 82 A.2d 846, permits issued authorizing the erection of dwelling houses on three undersized lots, which were revoked by the board of review on an appeal taken from the issuance thereof. This court held that the appeal was not taken within a reasonable time because substantial construction work on the dwellings had been completed at the time it was taken. The court, applying the doctrine of laches by analogy, reversed the board's decision, preserving the validity of the permits that had been illegally issued in the first place.

However, we consider these decisions significant because the court rested the decision in each on the fact that construction undertaken in reliance upon the permits constitutes a factor to be given weight on the question of whether the permittee had acquired an equity in the use authorized in the permit that justified its preservation from revocation by reason of the amendment to the ordinance in the Harrison case, or its unlawful issuance in the Elmcrest Realty Co. case. Recognition of this factor, in our opinion, suggests this court's acceptance of the proposition that the holder of a permit authorizing a use lawful when it was issued may, by acting in good faith in reliance thereon, acquire an interest in the use authorized which may not be divested or impaired by a subsequent amendment to the zoning ordinance making that use unlawful. There remains, however, the important question as to the circumstances under which the rule becomes effective.

There appears to be considerable confusion among the cases which purport to pass on the question as to when one to whom a building permit was lawfully issued for a use then permitted under the zoning ordinance acquires a vested interest in the use therein authorized that will withstand the operative effect of subsequent legislation amending the ordinance so as to prohibit that use. The consensus, however, is that where one has lawfully obtained such a permit authorizing a permitted use and proceeds in good faith to initiate construction in reliance on the permit or to incur expenditures for such construction, he acquires a right to the authorized use that is immune to impairment or revocation by the enactment of an amendatory ordinance excluding that use. The right so acquired and protected is described in Eggebeen v. Sonnenburg, 239 Wis. 213, 1 N.W.2d 84, 138 A.L.R. 495, as operating to exempt the permittee's property from rezoning once he initiates construction under the permit. Whether this is an apt concept of the nature of the right that accrues to the permittee, it reflects the nature of the protection that the permittee should in justice and equity be given.

The basic rule...