A A.T. & G., Inc. v. Zoning Bd. of Review of N. Smithfield
In A A.T. & G., Inc. v. Zoning Bd. of Review of N. Smithfield, 113 R.I. 458, 322 A.2d 294 (1974) the issue was whether the municipality's rule--that discontinuance of an existing nonconforming use occurred automatically at the passage of one year's time--comported with the delegation permitting municipalities to deny permits to rebuild upon finding a discontinuance. 113 R.I. 458, 322 A.2d 294.
The Court stated that although the passage of time is relevant, "'the decisive test is whether the circumstances surrounding such cessation of use are indicative of an intention to abandon the use.'" Id. at 464, 322 A.2d at 297.
In limiting the discontinuance inquiry to the passage of time alone, the "local legislature . . . acted ultra vires of its authority in that it abridged in the ordinance a right granted by the enabling act." 113 R.I. at 463, 322 A.2d at 296.