Weaver v. United Congregational Church

• Decision Date: 07 July 1978
• Docket Number: No. 76-397-M,76-397-M
• Citation: Weaver v. United Congregational Church, 388 A.2d 11, 120 R.I. 419 (R.I. 1978)
• Parties: Joseph O. WEAVER et al. v. UNITED CONGREGATIONAL CHURCH et al. P.
• Court: Rhode Island Supreme Court

Page 11

388 A.2d 11

120 R.I. 419

Joseph O. WEAVER et al. v. UNITED CONGREGATIONAL CHURCH et al.

No. 76-397-M.P.

Supreme Court of Rhode Island.

July 7, 1978.

[120 R.I. 425] Ralph D. Morrison, Newport, for petitioners.

William R. Harvey, Edward B. Corcoran, Newport, for respondents.

OPINION

WEISBERGER, Justice.

This zoning case is before us on a petition for certiorari. The petitioners seek review of a Superior Court judgment affirming actions taken by the Newport Zoning Board of Review (the board) regarding the use of certain land in Newport.

The petitioners are owners of land in the neighborhood of the property under consideration. That property consists of a tract of land and two buildings, a church and a parish house. ¹ The buildings are adjoining and are connected by stairways, but they have separate walls. The property is presently owned by the United Congregational Church (the church), one of the respondents to this petition, and is located in an R-10 district zoned for one- and two-family dwellings under the Newport Zoning Ordinance.

The church proposes to sell the property to respondent Lawrence Allen who is chief executive officer of two educational film companies. Mr. Allen's intention is to divide the property into two lots of different sizes. The larger lot would include the church building and would conform to the area and frontage requirements of the Newport Zoning Ordinance for an R-10 district. The smaller lot would contain the parish house and would fall short of both the area and the frontage requirements. After subdividing the lot, Mr. Allen further intends to convey the larger lot with the church building to the Newport Restoration Foundation. He would then retain only the smaller lot and the parish house which he would use for film storage and for offices from which to conduct his mail-order film rental business. These uses are commercial and are not permitted in an R-10 district.

Because the proposed subdivision of the land would create an undersized lot and the proposed use of the building on that lot is not a permitted use, respondents sought the board's approval before carrying out their plans.

The board held a public hearing on the proposed uses. Based on the testimony presented at that hearing, the board found that the parish house was not suited for residential use, that it could not be converted to such use without prohibitive expense, and that there was no market for the church and parish house as a unit. The board also found that the proposed use of the parish house would be compatible with the existing neighborhood and would not have a detrimental effect on the neighborhood or on the public welfare. The board thus decided to permit the division of the lot and to allow the use of the parish house for the film rental business. This permission was granted subject to the condition that the church building and the larger parcel on which it is located be conveyed to the Newport Restoration Foundation.

The petitioners appealed this decision to the Superior Court where a justice reviewed the record and upheld the board's decision approving the subdivision and granting the variance. Judgment was entered affirming the board's decision. The petitioners then sought the present writ of certiorari to review that judgment.

The first point raised by petitioners is that the reviewing justice erred in holding that the board had jurisdiction to approve the division of this lot. In our view, petitioners misconstrue the justice's decision. We read it as stating, and correctly so, that no approval under the subdivision statute, G.L.1956 (1970 Reenactment) chapter 23 of title 45, is necessary to subdivide this lot. Sections 45-23-1 and 2 vest jurisdiction to control the division of a lot into two lots in a city's plan commission (which, in Newport, is the board) only when the subdivision is done "in such a manner as to require provision for a street." Since the two new lots would both front on existing streets, the proposed subdivision here would not "require provision for a street," and would therefore not require approval by the board in its capacity as plan commission. Taylor v. Marshall, R.I., 376 A.2d 712, 715 (1977); Slawson v. Zoning Board of Review, 100 R.I. 485, 492, 217 A.2d 92, 96 (1966).

The petitioners next contend that respondents failed to present sufficient evidence to the board to support their request for a variance for the parish house. They argue that the record does not indicate that a literal application of the zoning ordinance would cause respondents "unnecessary hardship" so as to require the granting of a variance under § 45-24-19(c).

In order to show unnecessary hardship, respondents were required to prove to the board that a rigid insistence upon the property being devoted to a use permitted by the zoning regulations would deprive them of all beneficial use of the property and would therefore be confiscatory. Goodman v. Zoning Board of Review, 105 R.I. 680, 683, 254 A.2d 743, 745-46 (1969); accord, Bilodeau v. Zoning Board of Review, 103 R.I. 149, 152, 235 A.2d 665, 666-67 (1967). Under the Newport ordinance, an R-10 district is zoned for, among other...