The Taking Issue 



town comprehensive plan was undergoing revision, which was unchallenged. Similarly, 

 the sewer tie-in moratorium enforced joindy by South Kingstown and Narragansett, and a 

 building moratorium put in place by Narragansett during its comprehensive plan updating 

 process have met widi success. The effect of an aquifer protection-related construction 

 moratorium now in force in Burrillville is less clear. Although proposed construction in 

 aquifer protection zones must meet certain standards applied by the town planning board, a 

 chemical plant has been permitted to locate in the recharge area. 



The Need for Oaritv of Definition 



Turnpike Realty raised issues which have been central to the outcome of a recent Rhode 

 Island case, Gara Realty. Inc. v. The Zoning Board of Review of South Kingstown, et al. 



1 In the Gara Realty case, in which a landowner sought relief firom town zoning restrictions 

 governing the setback of an ISDS firom a waterway, the Rhode Island Supreme Court 

 reviewed several issues: whether less restrictive state (DEM) requirements superceded the 

 town ordinance; whether the review board had applied an erroneous standard for review; 

 whether the decision of the review board was substantially outweighed by the evidence; 

 and whether the review board had violated the petitioner's rights under the U.S. and Rhode 

 Island Constitutions. 



While affirming the Town's authority to exceed DEM's minimum ISDS standards, the 

 Supreme Court reversed the Superior Court, ruling that the petitioner should be granted 

 relief. The decision was based on the contention that the landowner had met die burden of 

 proof necessary to justify the type of relief which should actually have applied, given the 

 nature of the zoning ordinance itself. Specifically, the court ruled that Gara Realty must be 

 granted an exemption fix)m the 150- foot setback requirement since it was eligible for a 

 "deviatioR" of the zoning setback requirement 



Two key concepts are illustrated here: the importance of definition of "permitted use" 

 and the need for governments to clarify relief available. With regard to the definition of 

 permitted use, the town had established single-family dwellings as permitted by zoning, 

 leaving open die presumption that ISDS would be an accompanying permitted use on 

 property zoned residential. Thus the petitioner did not need to seek a variance for "a 

 purpose not ordinarily permitted," requiring proof of deprivation of all beneficial use of 

 property, but was instead eligible for a "deviation," defined as die type of relief available 

 from restrictions governing a permitted use, such as area or setback restrictions. 



If the town had established the construction of an ISDS within a 150 foot setback from a 

 waterbody as a prohibited use that would only be allowed as a special exception, the ruling 

 might well have been different. The town of Narragansett, for example, has recentiy 

 established zoning overlay districts which prohibit use of ISDS under given conditions. 



^ Gara Realty v. Zoning Board of Review of South Kingstown . 



233 



