Toohey v. Kilday

• Court: Rhode Island Supreme Court
• Writing for the Court: WEISBERGER
• Citation: Toohey v. Kilday, 415 A.2d 732 (R.I. 1980)
• Decision Date: 04 June 1980
• Docket Number: No. 78-50-M,78-50-M
• Parties: William J. TOOHEY, in his capacity as City Solicitor of the City of Warwick v. Thomas J. KILDAY et al. v. Thomas M. MORGAN et al. P.

Page 732

415 A.2d 732

William J. TOOHEY, in his capacity as City Solicitor of the City of Warwick v. Thomas J. KILDAY et al. v. Thomas M. MORGAN et al.

No. 78-50-M.P.

Supreme Court of Rhode Island.

June 4, 1980.

William J. Toohey, City Sol., pro se, Thomas L. McDonald, Asst. City Sol., Warwick, for petitioner.

Manning, West, Santaniello & Pari, Joseph T. Pari, Paul M. Finstein, Providence, Frederick A. Costello, Warwick, for respondents.

OPINION

WEISBERGER, Justice.

This petition for certiorari was brought to review a Superior Court judgment affirming in part and reversing in part a decision of the Zoning Board of Review of the City of Warwick (the board). The board had denied the petitioners' application for a variance or special exception from the restrictions of a Warwick zoning ordinance. On appeal, the Superior Court found that the board had properly denied the variance requested but erroneously denied the exception. Acting on behalf of the municipality, the city solicitor petitioned the court for the issuance of a writ of certiorari to review that portion of the judgment which reversed the board's denial of the special exception. We granted the petition, Toohey v. Kilday, R.I., 386 A.2d 197 (1978), and issued the writ on March 29, 1978; pursuant thereto, all records pertinent to the matter have been certified to this court.

Respondents Thomas J. Kilday and Anthony C. Cunha, Jr., were the owners of a parcel of property designated as assessor's plat 266, lot 595, zone Residence A-10, and located on the easterly side of Greenwich Avenue on the corner of Natick Avenue in the city of Warwick, Rhode Island. In the spring of 1975, respondents filed an application with the zoning board seeking a variance or special exception to permit the erection of a one-and-a-half story building, a "raised ranch," in which the lower portion would be used as a physician's office and the upper story as an apartment for the physician's mother and mother-in-law. The application disclosed an intention to employ two part-time technicians in addition to a secretary, thus requiring a further exception to regulations governing physicians' offices in a residential area.

Under the Warwick zoning ordinance ¹ §§ 5.11-5.11.5, a physician's office in a residence is a permitted use in any residential zone as a home occupation "customarily conducted entirely within a dwelling." The ordinance requires, however, that the physician himself reside on the premises and further, that the home occupation utilize for professional purposes "not more than 20% of the gross floor area * * * (but) in any event not more than 300 square feet." Finally, the physician's office component must not involve more than one employee or regular assistant who does not reside in the dwelling unit used for the home occupation.

Following a hearing on June 24, 1975, the zoning board issued a decision denying respondents' request. Respondents thereupon appealed to the Superior Court for the County of Kent, in accordance with the provisions of G.L. 1956 (1970 Reenactment) § 45-24-20. On May 11, 1976, that court remanded the case to the zoning board for rehearing because of the admission by an associate city solicitor that only four of the five members of the board had attended the initial hearing. The initial decision rendered by less than a full board was therefore void.

At some point during the pendency of the original application, Dr. Thomas F. Morgan purchased the property from respondents Kilday and Cunha, built the proposed structure, and commenced his neurological practice in the lower section; his mother and mother-in-law settled into the upper half. By the date of the second hearing before the board, on July 27, 1976, Dr. Morgan had joined respondents as a petitioner on the application for a variance or exception. ²

Again denying the petition, the zoning board stated, as the particular reason for its rejection of the application for an exception, its finding that the applicant had not carried his burden of showing that the proposed use would not be inimical to the public health, safety, morals, and welfare. On motion of respondents, the two appeals were consolidated on December 9, 1976, for consideration by the Superior Court. Based upon the zoning board's record and upon memoranda submitted by the parties, the trial justice rendered a decision on January 23, 1978, in which he found that the board had erred in denying the exception in view of the reliable, probative, and substantial evidence of the whole record. ³ Our sole concern on the present petition for certiorari is whether the trial justice erred in reversing the zoning board's denial of respondents' application for a special exception.

Both in his brief and in oral argument, petitioner displayed some confusion about the appropriate standard of review and pointed to our line of cases holding that a decision of a zoning board of review will be sustained on appeal if there is any legally competent evidence in the record to support it. See, e.g., Zimarino v. Zoning Board of Review of Providence, 95 R.I. 383, 387, 187 A.2d 259, 261 (1963). But as we delineated in explicit detail in Apostolou v. Genovesi, R.I., 388 A.2d 821 (1978), since 1969 when the Legislature amended § 45-24-20, we no longer review zoning board decisions directly by way of certiorari. The 1969 amendment altered the prior appellate review procedure to provide for an avenue of appeal from the zoning board to the Superior Court. 388 A.2d at 824. Hence, the general certiorari standard of review is inapplicable in the Superior Court, which must follow the statutory criteria set forth in § 45-24-20.

In reviewing the action of a zoning board of review, the trial justice "must examine the entire record to determine whether 'substantial' evidence exists to support the board's findings." DeStefano v. Zoning Board of Review of Warwick, R.I., 405 A.2d 1167, 1170 (1979); Apostolou v. Genovesi, 388 A.2d at 824-25. On certiorari to this court, we apply the "some" or "any" evidence test and review the record to determine whether legally competent evidence exists to support the findings of the court below. DeStefano, 405 A.2d at 1170; Dean v. Zoning Board of Review of Warwick, R.I., 390 A.2d 382, 386 (1978).

The relevant criterion against which both the zoning board and the trial justice, although with differing results, assessed the application for a relaxation of the home-office regulations was properly that of obtaining a special exception. ⁴ As a condition precedent to the grant of a special exception, an applicant must establish that the relief sought is reasonably necessary for the convenience and welfare of the public. ⁵ A zoning board of review, however, may not deny granting a special exception to a permitted use on the ground that the applicant has failed to prove that there is a community need for its establishment. Bonitati Bros. v. Zoning Board of Review of Woonsocket, 104 R.I. 170, 171, 242 A.2d 692 693 (1968); Nani v. Zoning Board of Review of Smithfield, 104 R.I. 150, 156, 242 A.2d 403, 406 (1958). To satisfy the prescribed standard, the applicant need show only that "neither the proposed use nor its location on the site would have a detrimental effect upon public health, safety, welfare and morals." Hester v. Timothy, 108 R.I. 376, 385-86, 275 A.2d 637, 642 (1971); Nani v. Zoning Board of Review of Smithfield. We agree with the trial justice's conclusion that the board's denial of the special exception in this case did not rest upon evidence sufficiently substantial to have warranted the board's action.

In support of his application, Dr. Morgan testified that his Greenwich Avenue office is located in the bottom half of the raised ranch and is limited to the practice of neurology. His office hours are scheduled for three afternoons a week; he sees five new patients on Tuesdays and Thursdays and four followup patients on Mondays. On working days, according to Dr. Morgan's testimony, there should normally be no more than the six cars for which his parking lot was designed, including his, his mother's, and his secretary's, although he noted that the lot had ample space for more cars, and that, on a few occasions, there had been as many as eight.

A qualified real estate expert, Philip A. Clarkin, Jr., testified on behalf of respondents. Mr. Clarkin described the raised ranch as having an "attractively decorated exterior," expensive landscaping, and a "modest size parking lot" on the side and rear of the house. When asked how he would "classify Greenwich Avenue in the immediate surrounding area," Mr. Clarkin said that Greenwich Avenue is a heavily traveled main thoroughfare which traverses a semi retail and professional type of neighborhood mixed with a substantial residential development. In the immediate vicinity of Dr. Morgan's lot, according to the real estate broker's testimony, there are an apartment building with twenty-two units, a dress shop, a nursery, and a two-family home. Several hundred feet to the north of the property, at the intersection of Greenwich Avenue and Route 5 (also known as Main Avenue), there are an all-service gasoline station and an Apex retail outlet. There is a physician's office within a few hundred feet south of the subject property. On the westerly side, there is a combination physician's residence/office. Finally, southwest of the instant raised ranch there is a retail/wholesale oil delivery company.

Mr. Clarkin testified that adjacent to Greenwich Avenue, "a main location highway" with a ...