Dawson v. Zoning Bd. of Review of Town of Cumberland

• Decision Date: 13 February 1964
• Docket Number: No. 1556,1556
• Citation: 97 R.I. 299,197 A.2d 284
• Parties: Henry C. DAWSON et al. v. ZONING BOARD OF REVIEW OF the TOWN OF CUMBERLAND. M. P.
• Court: Rhode Island Supreme Court

Page 284

197 A.2d 284

97 R.I. 299

Henry C. DAWSON et al. v.ZONING BOARD OF REVIEW OF the TOWN OF CUMBERLAND.

M. P. No. 1556.

Supreme Court of Rhode Island.

Feb. 13, 1964.

James Cardono, Pawtucket, for petitioners.

Frank O. Lind, Jr., Town Solicitor of Town of Cumberland, for respondent.

ROBERTS, Justice.

This petition for certiorari was brought to review the action of the respondent board denying the petitioners' application for an exception to permit a building in a residential zone to be used as a funeral home.Pursuant to the writ the pertinent records have been certified to this court.

It appears therefrom that petitioners are the owners of a parcel of land located on High street at the corner of Lavallee Drive in the town of Cumberland, on which is located the building in which petitionerHenry C. Dawson proposes to conduct his business as a funeral director.The lot has a frontage of 100 feet on High street and a depth of 300 feet on Lavallee Drive and contains approximately 30,000 square feet.It is conceded that High street, also known as the Diamond Hill Road, is one of the main thoroughfares of that town.The petitionerHenry C. Dawson, a funeral director of twenty-five years' experience, testified that funeral corteges, which usually average about twenty cars, will be formed within the confines of the property and that he plans to construct a parking lot at the rear of the building to accommodate from seventy to one hundred cars.A realtor testified on behalf of petitioners that the proposed use would not diminish substantially the value of surrounding properties and would serve the public convenience and welfare.

The petitioners seek specifically an exception under the terms of Article Nine, Section 1, of the ordinance, which provides in pertinent part: 'When in its judgment, the public convenience and welfare will be substantially served, and the appropriate use of neighboring property will not be substantially or permanently injured, the Zoning Board of Review may, in a specific case, after public notice, at a hearing, and subject to appropriate conditions and safeguards, authorize special exceptions to the regulations herein established, as follows: * * * 3.Approve in any district an application for any use or building which Zoning Board of Review finds (a) to be in harmony with the character of the neighborhood, appropriate to the use or buildings permitted in such district, and possessive of a reasonable tendency towards promoting the public convenience, the public welfare, or the public health; (b) where such use or building is reasonably necessary for the convenience or welfare of the public.'

This court has held that a board of review, in passing upon an application for an exception, is required to make findings as to the effect of it, if granted, on the convenience and welfare of the public and upon the appropriate use of surrounding properties.In Hazen v. Zoning Board of Review, 90 R.I. 108, 155 A.2d 333, we held that a board of review may not act affirmatively on an application for an exception where it found that to grant it would be contrary to the public convenience and welfare or would substantially injure the appropriate use of neighboring properties.In Monforte v. Zoning Board of Review, R.I., 176 A.2d 726, 729, this court considered similar provisions and said: 'Under these provisions the board is required to make a finding prior to the grant of the exception as to whether the exception, if granted, would substantially serve the public convenience and welfare.It is our opinion that if such finding is that a grant of the proposed exception would not substantially serve the public convenience and welfare, the board is without authority to act...