Town of East Greenwich v. Day

• Decision Date: 28 July 1977
• Docket Number: No. 75-281-M,75-281-M
• Citation: 119 R.I. 1,375 A.2d 953
• Parties: TOWN OF EAST GREENWICH et al. v. William P. DAY et ux. P.
• Court: Rhode Island Supreme Court

Page 953

375 A.2d 953

119 R.I. 1

TOWN OF EAST GREENWICH et al. v. William P. DAY et ux.

No. 75-281-M.P.

Supreme Court of Rhode Island.

July 28, 1977.

[119 R.I. 7] Bradford Gorham, Providence, for petitioner.

F. Thomas O'Halloran, Providence, for respondent.

OPINION

JOSLIN, Justice.

William P. and Susan Day, husband and wife, are the owners of a three-story residence situated in a district zoned R-10 in the town of East Greenwich. A single-family house is a permitted use in that district, but a multi-family dwelling is prohibited. Notwithstanding, the Days purchased the premises in 1972 anticipating that they and their children would occupy the first two floors of the dwelling and that the third floor would be rented as an apartment. Their plan suffered a setback when the building inspector refused them a building permit and charged them with violating the ordinance by having allowed a tenant to occupy the third floor apartment. The Days appealed, first to the zoning board of review, which sustained the building inspector, and then to the Superior Court, which reversed the board's decision. Thereupon, the members of the zoning board and the Town of East Greenwich initiated certiorari proceedings in this court seeking review of the Superior Court judgment. We ordered the writ to issue without prejudice, however, to the Days' right to raise the question of whether the petitioners have standing. Town of East Greenwich v. Day, 115 R.I. 944, 348 A.2d 30 (1975).

Before going to the merits, we consider the standing question. It is settled that a zoning board lacks standing to request this court to issue its prerogative writ of certiorari for the purpose of reviewing a Superior Court judgment. Hassell v. Zoning Bd. of Review, 108 R.I. 349, 352-53, 275 A.2d 646, 649 (1971). Accordingly, the writ in this case, insofar as it depends for its validity on the board's standing to institute the proceedings, was improvidently issued.

Whether the town similarly lacks standing is a question which, in substance, was decided in City of East Providence v. Shell Oil Co., 110 R.I. 138, 290 A.2d 915 (1972). In that case we held that a municipality, acting through its solicitor, may invoke the aid of the Superior Court for the purpose of challenging a zoning board decision granting an exception or a variance. The respondents seek to distinguish the Shell Oil Co. case from this case on the ground that in the former the municipality was a party to the proceedings in the Superior Court, whereas here the town's first appearance in the case was as an applicant for certiorari in this court. That distinction is not viable. That a municipality may have first invoked judicial assistance at this, rather than at the Superior Court level of a zoning dispute, or that it may not even have appeared when the case was in the Superior Court in no way eradicates or even minimizes the threat that a decision in a zoning dispute may pose to the public interest in the preservation and maintenance of the integrity of the zoning laws. The Legislature has assigned the protection of that interest to the local government and has directed that it act through its solicitor. General Laws 1956 (1970 Reenactment) §§ 45-24-6 and 45-24-7. In this instance, the solicitor was specially appointed for the task because the person holding that position was disqualified on account of a conflict of interest. When the special appointee instituted this action, he was acting within the scope of the authority conferred upon a city or town solicitor by the Legislature and consequently had standing.

Turning to the merits, it is undisputed that the property under consideration was used as a two-family dwelling when the town's first zoning ordinance was adopted and that this permitted nonconforming use continued unbroken until late in 1967. From then until the Days purchased the property in 1972, it was owned successively by the Fuhrmann and Richardson families, each using it exclusively as a single-family residence.

The question before the board, then, was whether the nonconforming use was abandoned during the Fuhrmann-Richardson occupancy. In deciding that it had been, the board relied in part on the zoning ordinance provision that a legally nonconforming use that is discontinued for more than 2 years may not be renewed. That reliance was misplaced, for in A.T. & G., Inc. v. Zoning Bd. of Review, 113 R.I. 458, 463, 322 A.2d 294, 296 (1974), we held that, in enacting that kind of provision, a local legislature "was acting ultra vires of its authority in that it was attempting to abridge in the ordinance a right granted by the enabling act." We went on to say that "the cessation of a use for some period of time prescribed in an ordinance will not, standing alone, support a conclusion that the use had been terminated." Id. at 463, 322 A.2d at 297.

The petitioners, however, do not rest entirely on the board's dependence on the ordinance provision. They also contend that the board...