Hein v. Town of Foster Zoning Board of Review

632 A.2d 643, 1993 R.I. LEXIS 228, 1993 WL 444590
CourtSupreme Court of Rhode Island
DecidedNovember 3, 1993
Docket92-388-M.P.
StatusPublished
Cited by21 cases

This text of 632 A.2d 643 (Hein v. Town of Foster Zoning Board of Review) 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
Hein v. Town of Foster Zoning Board of Review, 632 A.2d 643, 1993 R.I. LEXIS 228, 1993 WL 444590 (R.I. 1993).

Opinion

OPINION

MURRAY, Justice.

This matter is before the court pursuant to our grant of a writ of certiorari. The Foster Zoning Board of Review (zoning board) denied the petitioners’ appeal of a decision of a building and zoning official and denied the petitioners’ application for a special exception. The petitioners now seek a review of the Superior Court judgment affirming the actions of the zoning board.

The parties failed to order a transcript in this case, and consequently the following facts have been derived from the trial justice’s decision, the record of the zoning board hearing, and the memoranda filed by the parties. The petitioners, Claire and Kenneth Hein (the Heins), residents of West Warwick, own a seventy-acre piece of property located on Moosup Valley Road in the town of Foster. The parcel of property in question is unimproved and lies in a zoned area designated agricultural-residential. At the time of their application to the zoning board, the Heins grew fruits and vegetables and maintained a small shed and a stationary trailer on the property.

In January 1990 the Heins petitioned the town of Foster for a permit to build a barn on the property. The barn would have been used to facilitate their crop growing, to store farm equipment, and to house animals that they wished to raise on the property. At the time of their initial request to Carl Saccoccio *645 (Saccoceio), a building and zoning official for the town of Foster, and their appeal to the zoning board, it was the Heins’ intention to raise sheep, goats, and buffalo on the property. The Heins have subsequently decided not to raise buffalo on the property.

It was Saecoccio’s position that, according to the town of Foster’s zoning ordinance (ordinance), the proposed barn would be considered an “accessory use,” and the existence of a structure on the property was a prerequisite to the creation of an accessory use. It was Saccoccio’s belief that a house must be constructed on the property before a permit could be issued for the barn. Accordingly Saccoceio denied the Heins the permit to build the barn but informed them that he would be able to grant the permit when a residence was under construction. Saccoceio also notified the Heins that a trailer located on the property violated the ordinance.

After receiving notification of Saccoccio’s decision, the Heins filed an appeal with the zoning board and petitioned the zoning board for a special exception. The zoning board unanimously denied the Heins’ appeal to construct the barn and their request for the special exception. On appeal the Superior Court justice affirmed the zoning board’s decision. The Heins claim that the trial justice erred by (1) not classifying the proposed use of the property as an accessory use, (2) concluding that the barn would not promote the public health, safety, morals, and general welfare of the town of Foster, and (3) misconceiving material evidence and making findings of fact that were clearly erroneous.

The Superior Court is vested with jurisdiction to review the decisions of a zoning board by G.L.1956 (1991 Reenactment) § 45-24-20. 1

“On certiorari to this court we consider whether the Superior Court justice acted within the authority of § 45-24-20. * * * This court does not weigh the evidence; instead we review the record to determine whether substantial evidence existed to support the Superior Court justice’s decision. * * * We do not reverse a Superior Court justice’s decision unless it can be shown that the justice ‘misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly wrong.’ ” OK Properties v. Zoning Board of Review of Warwick, 601 A.2d 953, 955 (R.I.1992).

The Heins first contend that their petition for a permit to construct a barn should have been granted because the barn is an accessory use contemplated by the ordinance. The Heins assert that the ordinance defines the term “accessory use” as “any use which is auxiliary to another use on the same premises.” The Heins believe that the ordinance permits an accessory use when any use is customarily incident to a permitted use. They contend that since their property is located in an agriculturally zoned area, they are permitted to grow crops and raise animals. Consequently they conclude that the barn would be an accessory use to the permitted use of agriculture. The zoning board rejected petitioners’ appeal of the denial of the permit because the zoning board interpreted “accessory use” as a use accessory to an existing structure.

Article 2, Section 12 (the district-use regulations), of the Town of Foster Zoning Ordinance outlines “accessory use” as “[a]ny use customarily incident to use permitted in the district and located on [the] same lot,” and “[a]ny use customarily incident to a use permitted in the district as a special exception and located on the same lot.” Article 9 (the definitions section) of the ordinance defines “accessory use” as “[a]ny use which is auxiliary to another use on the same premises. Examples: a garage accessory to a house on the residential lot, a repair shop in an auto sales agency and a parking lot serving a drug store.”

The zoning board determined that Saecoc-cio correctly interpreted the ordinance as requiring an existing dwelling before any accessory use could be granted. We have given a zoning board wide discretion to con *646 strue an ordinance where .terms were not adequately defined. See Davis v. Zoning Board of Review of Warwick, 93 R.I. 484, 488, 176 A.2d 735, 738 (1962). In Davis we had no information with which to construe the term “undeveloped sections” and allowed the zoning board wide discretion. Id. The circumstance here is not so severe as the one noted in Davis because we have a definition of the term “accessory use,” albeit not so clear as petitioner would like it, supplemented by specific examples. The trial justice found that although the ordinance may not clearly define the term “accessory use,” the term does imply use accessory to an existing structure. We believe that great weight must be attached to each example of an accessory use in the ordinance, for example, a garage to a house, repair shop to an auto sales agency, and a parking lot to a drug store. All the examples dictate existing structures. The Heins’ property did not have an existing structure as illustrated in the ordinance. Consequently we hold that the trial justice did not err in finding that the proposed construction of the barn, by definition, would not be an accessory use.

The Heins next challenge the trial justice’s holding affirming the denial of the special exception. According to article 1, section 5(c)(2), of the ordinance, the zoning board has the authority to grant special exceptions to the terms of the ordinance. To be in accord with the ordinance, a use designated as a special exception must meet three requirements. The use (1) must be compatible with the neighboring land uses, (2) must not create a nuisance, and (3) must not hinder the future development of the town.

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632 A.2d 643, 1993 R.I. LEXIS 228, 1993 WL 444590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hein-v-town-of-foster-zoning-board-of-review-ri-1993.