51 RI Bar J., No. 4, Pg. 15 (January, 2003). Nonconforming Uses: Who Can Tell Whether They Even Exist?.

• Author: ROLAND F. CHASE, ESQ.

Rhode Island Bar Journal

Volume 51.

51 RI Bar J., No. 4, Pg. 15 (January, 2003).

Nonconforming Uses: Who Can Tell Whether They Even Exist?

Nonconforming Uses: Who Can Tell Whether They Even Exist?ROLAND F. CHASE, ESQ.Roland F. Chase is of counsel to the Newport firm of Miller Scott & Holbrook and an adjunct professor at Roger Williams University's School of Justice Studies. He is the author of the Rhode Island Zoning Handbook and articles on zoning and consumer law.Hard cases make bad law, as the saying goes, and RICO Corp. v. Town of Exeter(fn1) seems to be one of the harder ones the Rhode Island Supreme Court has decided in recent years, at least in the area of zoning.

In RICO, the Supreme Court held that zoning boards do not have jurisdiction to determine the existence of a nonconforming use. That may come as surprising news to zoning lawyers who have been regularly asserting or challenging the existence of claimed nonconforming uses before zoning boards.

How did the Court come to this conclusion? And what does it mean for the future? This article explores those questions by first examining the RICO case and then taking a look at prior case law.

The facts in RICO bordered on the bizarre. In asserting his right to a nonconforming use, the landowner, who later sold the property to RICO Corporation, said he ran a sand and gravel business on a small part of his land in 1972, a year before the town enacted a licensing ordinance regulating earth removal operations. However, later he testified that he began his sand and gravel operation in 1974, the year after the ordinance was enacted.(fn2)

He did not apply for a license under this ordinance, and when the town enacted its first zoning ordinance a few years later, his property was zoned to prohibit earth removal.(fn3)

Nevertheless, this did not prevent him from continuing to remove sand and gravel from the property. As the Supreme Court noted:

...about twelve years after the town's earth removal licensing ordinance was enacted, and over eight years after the town's zoning ordinance was enacted, Marcel for the first time decided to go to the town clerk's office and request an earth removal license.... It appears, however, that he did so without complying in any significant manner with the necessary prerequisite license application requirements contained in the earth removal licensing ordinance, or in compliance with the town's zoning ordinance. The town clerk, on September 26, 1985, for no discernably valid reason, granted and issued him an earth removal license for a term not to exceed thirty-six months.(fn4)

The Court went on to point out that the town clerk appeared to have "completely ignored not only the license filing requirements of the town's earth removal ordinance, but also the town's zoning ordinance."(fn5) Moreover, said the Court, subsequently the owner, in order to sell the property to RICO Corporation, "somehow was able to obtain a document entitled 'Zoning Certificate' from the town's zoning inspector," which purported to confirm the existence of a current "Gravel Bank License" that conformed to the town's zoning ordinance - even though the zoning ordinance prohibited earth removal on the property and the only license ever obtained for the business had expired two months earlier!(fn6)

Armed with this zoning certificate, RICO Corporation...