49 RI Bar J., No. 1, Pg. 15 (September, 2000). Zoning Relief: Why Not Both a Variance and a Special-Use Permit.

AuthorROLAND F. CHASE, ESQ.

Rhode Island Bar Journal

Volume 49.

49 RI Bar J., No. 1, Pg. 15 (September, 2000).

Zoning Relief: Why Not Both a Variance and a Special-Use Permit

Zoning Relief: Why Not Both a Variance and a Special-Use PermitROLAND F. CHASE, ESQ.Roland F. Chase is of counsel to the Newport firm of Miller Scott & Holbrook, and an adjunct professor in the School of Justice Studies, Roger Williams University. He is the author of the "Rhode Island Zoning Handbook" and numerous articles on zoning law and consumer law.

Your client has a wonderful idea for a new kind of coffee shop down on the waterfront, and she's found a good location. All you need to do for her is apply to the zoning board for a special-use permit, which should be a slam dunk because all the neighbors have seen the plans and they think it's great.

However, there is one other little problem. The parking lot is not quite big enough for the required 12 parking spaces, so you'll have to ask the zoning board for a dimensional variance too. But she's only short one parking space... how could the zoning board say no?

The board could say no, perhaps, because one of the members, or the solicitor advising the board, had read Newton v. Zoning Board of Review of the City of Warwick.(fn1) In that case the Rhode Island Supreme Court, in a brief opinion by Chief Justice Weisberger, ruled that a dimensional variance(fn2) cannot be granted in conjunction with the issuance of a special-use permit.(fn3)

But why? That seems like such an arbitrary rule, especially when applied to the facts of your client's case. If the standards set out in the zoning ordinance for granting a special-use permit are satisfied,(fn4) and denying the requested dimensional variance would cause your client to suffer more than a mere inconvenience,(fn5) then why should the zoning board be barred from giving her both forms of zoning relief?

In the Newton case, the applicants sought to construct a six-unit multi-family dwelling on an undersized lot in the City of Warwick. The multi-family use was authorized by special-use permit, but because the lot was so small the applicants also needed relief from several dimensional requirements of the ordinance. The Supreme Court gave two reasons for refusing to allow the applicants to combine the special-use permit with the requested dimensional variances.

FIRST NEWTON RATIONALE

First, the Court emphasized the provision in the Warwick Zoning Ordinance requiring the zoning board, in granting a special-use permit, to find that "the special use meets all of the criteria set forth in the subsection of this ordinance authorizing such special use." Because it was undisputed that the applicants could not meet several of the dimensional requirements, the Court held that the board could not grant the special-use permit.

In effect, the Court in Newton was saying this: One of the requirements for a special-use permit is that all dimensional requirements must be met; because you cannot meet the dimensional requirements, you are not entitled to the special-use permit. You cannot relax those dimensional requirements by getting a dimensional variance-in effect, piggy-backing a dimensional variance on top of a special-use permit-because that would effectively allow a special-use permit to be granted for little more than the applicant's inconvenience, without meeting the standards established by the city council for a special-use permit.

As authority for this rationale, the Newton Court cited Northeastern Corp. v. Zoning Board of Review,(fn6) which it said had "held in effect that a dimensional deviation could not be granted in a situation in which a use was permitted by way of a special exception."(fn7)

Although the Court did make this statement in Northeastern,(fn8) its actual holding was much narrower. In that case the applicant sought a special exception to build a "boatel" on a navigable saltwater pond on Block Island and also asked for a variance from parking requirements. However, the Court did not reject the Viti rule because these two forms of relief were requested; it said that rule had no application to the establishment of the boatel use because the zoning ordinance authorized boatels in a business district "provided that the lot...contains a minimum of 40,000 square feet of land." Since the parcel in question only contained 32,000 square feet, the applicant did not meet the basic requirement for the use requested and therefore the...

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