D. O. B. Properties, Inc. v. Bureau of Licenses of City of Providence

• Decision Date: 24 July 1959
• Docket Number: No. 1275,1275
• Citation: 90 R.I. 23,153 A.2d 563
• Parties: D. O. B. PROPERTIES, INC. v. BUREAU OF LICENSES OF CITY OF PROVIDENCE et al. M. P.
• Court: Rhode Island Supreme Court

Page 563

153 A.2d 563

90 R.I. 23

D. O. B. PROPERTIES, INC. v. BUREAU OF LICENSES OF CITY OF PROVIDENCE et al.

M. P. No. 1275.

Supreme Court of Rhode Island.

July 24, 1959.

Grande & Grande, William G. Grande, Corinne P. Grande, Providence, for petitioner.

William E. McCabe, City Solicitor, Harry Goldstein, Asst. City Solicitor, Providence, for respondents.

James H. Kiernan, Providence, intervenor.

POWERS, Justice.

This is a petition for a writ of certiorari to review the action of the bureau of licenses of the city of Providence in denying the petitioner's application for a license to operate a junk shop on property owned by it in said city. We ordered the writ to issue and pursuant thereto all pertinent records have been certified to this court.

It appears therefrom that on January 19, 1956 Anthony DiOrio and his brother Pasco DiOrio purchased a large parcel of real estate located on Manton avenue. The property consisted of approximately 250,000 square feet of land together with certain old mill buildings and other improvements. On March 25, 1957 D. O. B. Properties, Inc. was incorporated under the laws of this state, and on April 8, 1957 Anthony and Pasco DiOrio conveyed the property to petitioner and each received therefor fifty shares of stock in the corporation.

Thereafter on March 6, 1958 Anthony and Pasco as individuals filed an application for a license to operate a junk business on plat 80, lot 56, in compliance with the provisions of General Laws 1956, § 5-21-1, and chapter 18, section 1, of the revised ordinances of 1956. Lot 56 was part of the property and consisted of 185,722 square feet of land with certain buildings thereon. After a hearing on April 28, 1958 the application was denied by the bureau of licenses in accordance with the requirements of § 5-21-2, because of legal remonstrances by the owners or occupants of the greater part of the land within 200 feet of lot 56.

Subsequently, on July 18, 1958, petitioner conveyed to Anthony and Pasco DiOrio all of the property with the exception of a portion located approximately in the middle of lot 56. The portion retained by petitioner consisted of an area of approximately 30,000 square feet of land with certain buildings thereon. Thereafter on July 25, 1958 petitioner filed an application with the bureau of licenses for a license to conduct a junk business only on that portion of the property which petitioner had retained. The portion so retained was described in the petition for certiorari as 'a portion of Lot 56, Plat 80 at the rear of 999 Manton Avenue in said City, County and State and more particularly described in a plat plan filed with the said Bureau of Licenses.' It appears from the record that the area for which a license was sought consists of a portion confined to two small buildings on the land which contains approximately 30,000 square feet. It also appears that measuring the 200-foot radius lines from that portion would result in excluding as remonstrants under § 5-21-2 substantially all of the persons whose property abutted lot 56 and who had previously filed remonstrances against the granting of a license for the whole of lot 56.

In this proceeding we are concerned only with petitioner's application for a license to operate such business on the 30,000 square foot area. It appears that such area is located in an M-1 general industrial zone. It is undisputed that the uses permitted thereunder include a junk shop and junk yard if a license therefor is obtained from the bureau of licenses in accordance with the requirements of the pertinent city ordinance.

Hearings on such application were held on October 17 and December 12, 1958. Objections were filed by substantially the same persons who had previously objected to the granting of a junk license to Anthony and Pasco DiDrio for the entire area of lot 56. However, in so far as the portion of land for which petitioner sought the license now in question, most of the objectors did not own or occupy land within 200 feet thereof. In fact the greater part of the land within 200 feet thereof was owned by Anthony and Pasco DiOrio, the sole stockholders of petitioner. They naturally did not object to the granting of the license. Anthony DiOrio testified that at a stockholders' meeting held on July 21, 1958 petitioner's charter was amended to permit it to deal in scrap metal and junk; that petitioner conveyed a part of lot 56 to the DiOrio brothers for tax purposes and financial reasons; and that they would use the property so conveyed for 'warehousing and conducting a radiator business.'

On January 9, 1959 the bureau filed a decision denying the application. It based such decision substantially on the grounds that it would not be in the public interest to grant a junk license for this location because of the existence of numerous residences surrounding the lot...