Carroll v. Zoning Bd. of Review of City of Providence

• Court: Rhode Island Supreme Court
• Writing for the Court: JOSLIN
• Citation: Carroll v. Zoning Bd. of Review of City of Providence, 248 A.2d 321, 104 R.I. 676 (R.I. 1968)
• Decision Date: 06 December 1968
• Docket Number: No. 448-M,448-M
• Parties: , 38 A.L.R.3d 159 Mary L. CARROLL v. ZONING BOARD OF REVIEW OF the CITY OF PROVIDENCE. P.

Page 321

248 A.2d 321

104 R.I. 676, 38 A.L.R.3d 159

Mary L. CARROLL v. ZONING BOARD OF REVIEW OF the CITY OF PROVIDENCE.

No. 448-M.P.

Supreme Court of Rhode Island.

Dec. 6, 1968.

Higgins & Slattery, William C. Dorgan, Providence, for petitioner.

Edward F. Malloy, Asst. City Solicitor, Providence, for respondent; Swan, Keeney & Jenckes, Harry W. Asquith, Harold W. Thatcher, Edmund J. Kelly, Providence, of counsel.

OPINION

JOSLIN, Justice.

This is a petition for certiorari to review the action of the respondent board granting Helen F. Stomberg and Texaco, Inc. permission to construct a gasoline station and service area on two lots both of which are located on Hope Street in the city of Providence.

The application if for an exception or a variance. It was filed by Helen F. Stomberg, joined in by Texaco, Inc., and applies to lots 134 and 154 on assessor's plat 93 both of which are in a C-2 general commercial zone. Lot 134 is owned by Texaco, Inc., and located thereon is a gasoline station, a legal nonconforming use; lot 154 although owned by Helen F. Stomberg, is subject to an option to purchase running to Texaco, Inc. It is occupied by a rambling two story frame building and is devoted to uses permitted in a C-2 zone. The relief requested is for permission to replace the existing gasoline service station with a new modern station to be situated solely on lot 134, and to raze the building on lot 154 so that the land may be used for underground gasoline storage tanks as well as for a service area for the adjoining station.

The threshold question is jurisdictional and concerns the notice ¹ which the board gave of the hearing to be held on the application. That notice by implication indicates that Helen F. Stomberg, rather than Texaco, Inc., is the owner of lot 135.

In zoning matters, just as in other legal proceedings, notice is a jurisdictional prerequisite. It is purposed upon affording those having an interest an opportunity to present facts which might shed light on the issue before the board, Perrier v. Board of Appeals, 86 R.I. 138, 144, 134 A.2d 141, 144, and upon assisting 'the board to do substantial justice to an applicant while preserving the spirit of the ordinance under consideration.' Mello v. Zoning Board of Review, 94 R.I. 43, 49, 50, 177 A.2d 533, 536. A proper fulfillment of those purposes demands '* * * notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873.

Our statute, G.L.1956, § 45-24-18, mandates that notice of the time fixed for the hearing be give to the public as well as to the parties in interest. Compliance with the mandate is a jurisdictional prerequisite. Radick v. Board of Review, 83 R.I. 392, 117 A.2d 84; Richard v. Board of Review, R.I., 129 A. 736. Merely to advise of the date, time, and place of a proposed meeting without more, however, is a mere gesture, and will be of little significance unless in addition some advice is given of the purpose for which the meeting has been called. To meet that requirement-and it is a due process requirement-the rule has developed that the notice, if it is to be adequate and sufficient, must in addition advise concerning the precise character of the relief sought and the specific property for which that relief is sought. Pascalides v. Zoning Board of Review, 97 R.I. 364, 197 A.2d 747; Mello v. Zoning Board of Review, supra; Abbott v. Zoning Board of Review, 78 R.I. 84, 79 A.2d 620.

The adequacy and sufficiency of the notice in this case turns on whether the impliedly inaccurate statement that Helen F. Stomberg, rather than Texaco, Inc., owned lot 134 was of sufficient consequence to vitiate an otherwise clear and definite identification of both the specific relief sought and the particular land to be affected. Certainly the error was minor. Although concededly a misstatement, it related neither to the purpose for which the meeting was being held nor to what was intended to be accomplished, and it cannot reasonably be said to have misled into inaction at the hearing before the board or to have left the public or any interested person in doubt concerning what was being proposed and what property was to be affected. Indeed, the contrary is the case because, notwithstanding the irregularity, the notice reasonably conveyed the required information and adequately afforded those interested a reasonable time to make their appearance. No more was required; no less would have sufficed to meet constitutional requirements.

That the original application contains errors and inaccuracies in addition to the misstatement which appeared in the notice need not be considered on the view we take of the case.

Leaving the question of jurisdiction and turning to the merits, we find that the application is for a variance or an exception. It specifies sections 23-A-3(a), 52-A-2, and 54-A-3 of the zoning ordinance as the provisions which authorize the grant of an exception for the construction of a gasoline service station in a C-2 general commercial zone. Those sections are patently inapposite as sources of the needed authority. Section 23-A-3(a) provides that

'A building or structure nonconforming as to regulations for use or lot area per dwelling unit shall not be added to or enlarged in any manner unless such building or structure, including such addition and enlargement is made to conform to the use and area per dwelling regulations of the zone in which it is located.'

Section 52-A enumerates the uses permitted in a C-2 general commercial zone and the enumeration does not include a gasoline service station; and section 54-A-3 lists an automobile service station (gasoline station) as one of the uses permitted in a C-4 heavy commercial zone. The board, even though its decision predicated relief upon these sections, not recognizes their lack of pertinency, and neither in its brief nor in its oral argument did it in any way rely upon them as a basis for its action. It looked instead principally to section 27-5 of the ordinance. That section permits a public service use to be established in any zone as a special exception and defines such a use in the following manner:

'5. Public Service-Including electric distributing substations, fire and police stations, telephone...