Gaglione v. DiMuro

478 A.2d 573, 1984 R.I. LEXIS 576
CourtSupreme Court of Rhode Island
DecidedJuly 19, 1984
Docket83-451-M.P.
StatusPublished
Cited by36 cases

This text of 478 A.2d 573 (Gaglione v. DiMuro) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaglione v. DiMuro, 478 A.2d 573, 1984 R.I. LEXIS 576 (R.I. 1984).

Opinion

OPINION

MURRAY, Justice.

This is a petition for certiorari which seeks the review of a trial justice’s decision affirming the award of a zoning variance to certain landowners by the Zoning Board of Review of the City of Cranston (hereinafter zoning board). It presents one issue, whether the evidence presented to the respondent-zoning board in support of an application to develop a certain parcel of real estate was sufficient to justify the zoning board’s decision to grant these landowners the disputed variance. The facts pertinent to this appeal are set out below.

On January 7, 1983, Richard and Carmine Boscia (hereinafter the Boscias), filed an application for a variance with the zoning board. In their application, they sought relief through section 30-49 of the Cranston City Code 1 from the requirements of the zoning ordinances of the city of Cranston as it applied to property that they owned on Mayfield Avenue. 2 The specific development proposal submitted by the Boscias included a request to construct seventy townhouse condominium units on this land.

On February 9, 1983, a public hearing was held upon the Boscias’ application for *575 a variance. The Boscias presented the testimony of various expert witnesses in support of their condominium proposal. James Salem, a traffic engineer, testified that he had performed a traffic study of Mayfield Avenue and the surrounding area. He stated that the results of his study revealed that the development proposed by the Boscias would not significantly increase traffic or congestion in the area nor would it create additional safety problems.

Richard J. Cardarelli, a member of the American Institute of Architects, testified that he had developed a site plan for the Boscias’ Mayfield Avenue property. He stated that the proposed plan would conform to all the setback, height, and parking requirements for an A-8 zone. He also testified that there were adequate water, gas, and sewer facilities on Mayfield Avenue to supply the proposed development with its basic utilities.

Donald B. Colletti, president and treasurer of Bruce Allen Realtors, performed a real estate survey of the Mayfield Avenue property for the Boscias. The specific contents of his report were submitted to the zoning board in support of the Boscias’ application. Relevant excerpts from his report included the following.

“Due to the configuration of the subject property, individual single families would not be an appropriate use for the subject. Building a single family type of property on the subject site would be economically unfeasible because of the proximity to a business block abutting the subject property and therefore causing built-in locational obsolescence for a single family type of residence.
“It is my opinion, because of the inappropriateness of single family homes for the subject site, because of its configuration and other surrounding uses, that, if relief were granted, it would not be contrary to the public interest, and that due to the special conditions of the site, * * * a literal enforcement of the provisions of the Zoning Ordinance, would result in unnecessary hardship.
“In my opinion, if relief were granted, it would cause no injury to the public health, safety, or welfare; it would not alter the essential character of the neighborhood in which it is located, and it would not substantially injure the appropriate use of neighboring properties. Rather, relief would serve the public convenience and welfare by providing town house residential structures in a relatively residential area.
“In my opinion, the proposed use is an appropriate use and [I] would urge that relief be granted.”

On March 9, 1983, the zoning board granted the Boscias’ application for a variance to construct multifamily units on their Mayfield Avenue property. In its decision, the zoning board modified the terms of the original development project. It reduced the number of condominium units that could be built on the site to fifty-six, required the planting of shrubs and the installation of a five-foot fence along the rear property line, and directed that all buildings be set back at least thirty-five feet from the rear property line.

On March 25, 1983, petitioner filed his appeal in the Superior Court from the decision of the zoning board. In his complaint, petitioner alleged that he owned property within a 400-foot radius of the Boscias’ Mayfield Avenue property. 3 He further alleged that the zoning board’s decision adversely effected the use and enjoyment of his property and was clearly erroneous. On August 16, 1983, a trial justice of the Superior Court affirmed the decision of the zoning board upon the grounds that it was not clearly erroneous and was based upon reliable, probative, and substantial evidence.

*576 It is well settled that to obtain a variance from a permitted use of property, a landowner must prove that “rigid insistence upon the property being devoted to a use permitted by the zoning regulations will deprive [him] of all beneficial use of his property and will therefore be confiscatory.” Goodman v. Zoning Board of Review of Cranston, 105 R.I. 680, 683, 254 A.2d 743, 745 (1969) (citing Bilodeau v. Zoning Board of Review, 103 R.I. 149, 235 A.2d 665 (1967)). This rule demonstrates that “unnecessary hardship,” as defined in G.L. 1956 (1980 Reenactment) § 45-24-19(c), 4 “exists only when all beneficial use has been lost and the grant of a variance becomes necessary to avoid an indirect confiscation.” Rhode Island Hospital Trust National Bank v. East Providence Zoning Board of Review, 444 A.2d 862, 864 (1982) (citing Denton v. Zoning Board of Review of Warwick, 86 R.I. 219, 221-22, 133 A.2d 718, 719 (1957)).

Additionally, to obtain a variance, an applicant must demonstrate by probative evidence that a literal application of the terms of the ordinance would deprive him of all beneficial use of his property. Coupe v. Zoning Board of Review of Pawtucket, 104 R.I. 58, 59, 241 A.2d 821, 822 (1968). “[A] mere showing of a more profitable use that would result in a financial hardship [to the owner] if denied does not satisfy the requirements of our law.” Rhode Island Hospital Trust National Bank v. East Providence Zoning Board of Review, 444 A.2d at 864.

We have also held that statements of economic unfeasibility that are mere conclusions and are unsupported by financial statements or cost data do not constitute probative evidence.

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478 A.2d 573, 1984 R.I. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaglione-v-dimuro-ri-1984.