Town of Warren v. Frost

• Decision Date: 12 March 1973
• Docket Number: No. 1782-A,1782-A
• Citation: 111 R.I. 217,301 A.2d 572
• Parties: TOWN OF WARREN v. Robert M. FROST et ux. ppeal.
• Court: Rhode Island Supreme Court

Page 572

301 A.2d 572

111 R.I. 217

TOWN OF WARREN v. Robert M. FROST et ux.

No. 1782-Appeal.

Supreme Court of Rhode Island.

March 12, 1973.

[111 R.I. 224] Pasquale T. Annarummo, Town Sol., Warren, for plaintiff.

Edwards & Angell, Richard M. Borod, Providence, for defendants.

OPINION

ROBERTS, Chief Justice.

This is an action to enjoin the defendants from allegedly violating the zoning ordinance of the town of Warren by conducting commercial and business activities on land zoned for residential uses only. The complaint was filed on September 24, 1970, presumably pursuant to the provisions of G.L.1956 (1970 Reenactment) §§ 45-24-6 and 45-24-7. The matter was heard by a justice of the Superior Court, who, on June 14, 1971, rendered a decision in favor of the plaintiff town. Judgment was entered thereon on September 14, 1971, and the defendants are now in this court prosecuting an appeal from that judgment.

The record discloses that on May 6, 1961, Donald G. Tripp, defendant's predecessor in title, made application for a variance under the pertinent provisions of the statute. ¹ The variance sought referred to lots 317, 319, 321, and 324 on assessors' plat 13D, which at that time were zoned for residential C uses. The tract in question was described in the application as 'vacant marshland' and is located on the shore of the Kickemuit River at Read Avenue in the town of Warren.

The applicant sought a variance from the terms of the ordinance that would permit him to engage in commercial activities on the premises, including 'boat repair, construction, storage, sale of boats and accessories and related services.' The applicant further stated in the application that he proposed by way of site alterations the 'construction of drainage ditches to drain area and to permit small boats to dock therein and also (the) construction of a cement or cinder block building with rail way.' It further appears that Mr. Tripp submitted to the board of review a sketch of the proposed building, showing its dimensions.

Mr. Tripp's application was considered by the board of review at a meeting held on June 14, 1961, the minutes of which disclose that the application was granted. The minutes read: 'An application from Donald G. Tripp for a variance from residential C to business D to construct a building for boat repair, construction, storage, sale of boats and accessories and other related services was granted.' After the grant of the variance, until 1967, Mr. Tripp engaged in commercial activity on the land, including the storage, repairing and rebuilding of boats. The proposed building was not erected on the land and no permit for the construction of such a building was sought. The land was sold to the present defendants on September 20, 1967, and it is not disputed that the commercial and business use of the land has continued.

The town contends that the trial justice did not err in finding that the variance granted Tripp in 1961 was conditioned on the construction of the building referred to in the application. The question is, then, whether the board of review disclosed an intention to condition the grant on the erection of such building by its reference thereto within the terms of the grant.

In the first place, the enabling legislation provides that a board of review, in granting an exception or a variance, may, inter alia, 'make such order, requirement, decision or determination as ought to be made.' Section 45-24-19. Clearly, this provision of the statute confers upon a board of review authority to impose reasonable conditions upon the grant of a variance. Guenther v. Zoning Board of Review, 85 R.I. 37, 125 A.2d 214 (1956); Woodbury v. Zoning Board of Review, 78 R.I. 319, 82 A.2d 164 (1951).

However, nowhere in the record does it appear that the board in express terms imposed any conditions on the grant of the variance. The plaintiff directs our attention to the testimony adduced through Theodore W. Price, who owned land across the street from the Tripp land, apparently urging that this was evidence that would support a reasonable inference of an intention of the board to condition the grant. Mr. Price testified that Mr. Tripp had informed him that he was going to erect a building on the land and wanted to know how Price felt about it. Price testified, in substance, that he told Tripp that he was against it and he didn't think it was a proper place for such a building. The testimony of Price, while probative of the intention of Tripp with respect to the erection of a building at the time he sought the variance, will hardly support a finding that the board intended to impose such a condition on the grant of the variance. We are persuaded that the testimony of Price was not susceptible to a reasonable inference that the board conditioned the grant.

We attach particular significance to the total absence of any evidence in the record that the activities to be carried on by Tripp under the variance were of such a nature that they necessarily would be restricted to the interior of the proposed structure. There is nothing expressed in the grant of the board or in the evidence offered at the hearing that would support a finding that some or all of these activities would be permitted only if carried on within the structure referred to in the application.

The plaintiff town directs our attention to Strauss v. Zoning Board of Riview, 72 R.I. 107, 48 A.2d 349 (1946), apparently for the purpose of persuading us that the condition relating to the erection of the building inhered in the terms of the variance. However, we are unable to perceive in what manner plaintiff gains anything by the holding in that case. In Strauss the argument was made that the conditions on the issuance of an exception were inherent in the terms thereof. This court, however, rejected the concept of inhering conditions and held that such conditions on a grant permitting a use of the land would be effective only when...