Buckminster v. Zoning Bd. Of Review Of City Of Pawtucket. Cushman, s. 796, 797.

• Decision Date: 23 July 1943
• Docket Number: Nos. 796, 797.,s. 796, 797.
• Citation: 33 A.2d 199
• Parties: BUCKMINSTER et al. v. ZONING BOARD OF REVIEW OF CITY OF PAWTUCKET. CUSHMAN et al. v. SAME.
• Court: Rhode Island Supreme Court

33 A.2d 199

BUCKMINSTER et al.

v.ZONING BOARD OF REVIEW OF CITY OF PAWTUCKET.

CUSHMAN et al.

v.SAME.

Nos. 796, 797.

Supreme Court of Rhode Island.

July 23, 1943.

Certiorari proceedings by Rollin Buckminster and others and by Elizabeth L. Cushman and others, to review a decision of the Zoning Board of Review of the City of Pawtucket granting the application of Charles B. Lennon to locate and operate a funeral home at a certain address in that city.

Decisions affirmed.

Hurley, Moriarty & Connly, George Hurley, Walter V. Moriarty, and John W. Moakler, Jr., all of Providence, for petitioners.

Clarence N. Woolley, of Pawtucket, and Walter J. Hennessey, of Providence, for respondent.

CAPOTOSTO, Justice.

These are two petitions for writs of certiorari to review a decision of the Pawtucket zoning board of review granting the application of Charles B. Lennon to locate and operate a “funeral home” at 209 Central avenue in that city. The writs were issued and the papers of the board in the matter were duly certified to this court. Since both petitions raise identical questions, we will hereinafter treat them as if only one petition were before us for consideration.

The case was argued in this court on December 2, 1942 and, on January 28, 1943, we remanded the papers to the board for the purpose of clarifying and completing its decision in accordance with our opinion of that date. Buckminster v. Zoning Board of Review of the City of Pawtucket, R.I., 30 A.2d 104. In compliance with such direction the board amended its decision and, on March 11, 1943, the papers were returned to this court. On April 30, 1943, the parties were allowed to present such further argument in support of their respective contentions as they deemed necessary under the amended decision.

Unless otherwise indicated, all boundaries, distances, directions and locations hereinafter mentioned have been determined by us from a plat in evidence before the board. We therefore speak in approximate terms as to such matters.

The property in question is located at the southwest corner of Central avenue and Orchard street. It has a frontage of 125 feet on the southerly side of the former street and of 60 feet on the westerly side of the latter. Central avenue is a main highway running easterly from Pawtucket to Seekonk, Massachusetts. Orchard street is a side street, about 425 feet long, which enters, but does not cross, Central avenue from the south. The house on the premises just mentioned has ten rooms. Attached to the house and connecting therewith is a three-car garage, which is entered from Central avenue. Lennon and his wife alone live in this house, they having no children. He applied for an exception to the zoning ordinance so that he might carry on his business of an undertaker from his residence. The petitioners here own property or reside in that neighborhood.

Lennon's property is in a district classified under the zoning ordinance as a Residence B district. Therein, besides the uses permitted in a dwelling house district, the following are the permitted uses: Apartment house, boarding house or hotel, with certain restrictions; a gasoline filling station, stable, or an aeroplane landing field, airship hangar and accessory buildings and structures, if approved by the board of review.

The plat in evidence shows the westerly boundary line of an area zoned for business to the east of the southwest corner of Central avenue and Orchard street, where Lennon's property is located. The distance from this corner to that boundary line, as one proceeds easterly along the southerly side of Central avenue, is 350 feet. In between these two points are three dwellings, an apartment house, a church and a store. Next to the store is a gasoline filling station, which is in the area zoned for business. The distance from a point on the northerly side of Central avenue opposite the above-described corner to the above-mentioned boundary line on that side of of the highway is 410 feet. Nine dwellings for one or more families are located between these two points. Immediately to the east of said boundary line there is a vacant lot 50 feet wide, and adjoining thereto there is a “Contractor's Yard”, with garage, carpenter shop and office building. The remainder of the neighborhood in the immediate vicinity of Lennon's property consists of dwelling houses of the character hereinbefore described.

Acting under the authority of our zoning statute, now general laws 1938, chapter 342, the city of Pawtucket adopted in 1928 the zoning ordinance involved in this case. Section 16 of the ordinance establishes a board of review, with power, after notice and hearing, to determine and vary, in a specific case and subject to appropriate conditions and safeguards, the application of the regulations established by the ordinance, in harmony with the general purpose thereof, which, as stated in section 1 thereof, is to promote the public health, safety, morals and general welfare. Paragraph 8 under section 16 gives the board power to “Approve in any district an application for any use or building deemed by the said Board to be in harmony with the character of the neighborhood and appropriate to the uses or buildings permitted in such district.”

Lennon and one Edward F. Butler, who was in the real estate business, testified at the...