DeFelice v. Zoning Bd. of Review of Town of North Providence, 1475

• Decision Date: 27 March 1963
• Docket Number: No. 1475,1475
• Parties: Thomas L. DeFELICE et ux. v. ZONING BOARD OF REVIEW OF the TOWN OF NORTH PROVIDENCE. M. P.
• Court: Rhode Island Supreme Court

Page 685

189 A.2d 685

96 R.I. 99

Thomas L. DeFELICE et ux. v. ZONING BOARD OF REVIEW OF the TOWN OF NORTH PROVIDENCE.

M. P. No. 1475.

Supreme Court of Rhode Island.

March 27, 1963.

Edward M. McEntee, James R. Morriss, Providence, for petitioners.

Michael A. Abatuno, Town Solicitor for Town of North Providence, for respondent.

Kirshenbaum & Kirshenbaum, William Young Chaika, Providence, amicus curiae.

FROST, Justice.

This is a petition for a writ of certiorari brought by a husband and wife to review the action of the zoning board of review of the town of North Providence in granting a variance to Cosmo J. Ricci and his wife Laura, hereinafter referred to as the applicants, thereby permitting them to build an addition to an existing building. Pursuant to the writ the pertinent records have been certified to this court.

The applicants are the owners of a lot of land with a building thereon, numbered 1530, on the southwesterly side of Smith street and numbered 406 on assessor's plat 8. The lot has a frontage of 60.58 feet and extends back 85 feet on one side and 106.22 feet on the other side.

On October 10, 1961 the building inspector granted an application and issued a building permit to the applicants authorizing them to construct an addition to the existing dwelling house. The addition is on the front of the house and extends beyond the house on each side. Because the house is not parallel with the highway the westerly corner of the addition is 26.8 feet from the building line while the easterly corner is 10.5 feet from the building line. There is therefore a triangular portion of the addition which at the nearest point is 10.5 feet from the lot or street line. In other words a small triangular portion of the addition is within the 15-foot strip required to be between building and street line.

After receiving the permit the applicants proceeded with the construction of the addition. The foundation was laid and the addition bearded in when further work was halted by a restraining order obtained by petitioners. Thereafter on December 26, 1961 the applicants filed an application for an exception or variance seeking permission to build the proposed addition notwithstanding its encroachment somewhat on the 15-foot space required between the building and lot line. This application was heard January 25, 1962 and on February 2, 1962 the board granted a variance. Thereafter petitioners brought the instant petition.

The respondent board moved to dismiss the pending writ of certiorari on the ground that the decision of the board was a nullity because the issue presented therein was unnecessary and moot. On October 1, 1962 we denied the motion but without prejudice to its being again presented to this court at the final hearing of the petition on the merits.

The first question therefore is: Is the respondent entitled to have the writ quashed and the petition dismissed? On October 10, 1961 a building permit was issued. Work was promptly begun under the permit and was clearly visible to any passer-by. On November 24, 1961 a restraining order was issued by the superior court to halt further work on the building but not until forty-four days had passed since the issuance of the permit. The time within which an appeal may be taken from the issuance of a building permit is thirty days as provided by art. X, sec. 4, of the zoning ordinance, which reads in part as follows:

'Appeals to the Board may be taken by any party aggrieved or by any officer, department, board, or bureau affected by any order or decision of the Zoning Inspector concerning the provisions of this ordinance. Such appeal shall be taken within a reasonable time as provided in the rules of the Board by filing with the Zoning Inspector and with the Secretary of the Board a written notice of appeal specifying the grounds for the appeal. In no case shall this reasonable time exceed thirty days.'

Since petitioners, notwithstanding the open character of the work being done on the house, took no action to stop it for more than forty days, we are of the opinion that respondent would be entitled to have the writ of certiorari quashed in accordance with Maynard v. Vigeant, 42 R.I. 386, 108 A. 61, Elmcrest Realty Co. v. Zoning Board of Review, 78 R.I. 432, 82 A.2d 846, Nolfi v. Zoning Board of Review, R.I., 164 A.2d 695, and the recent case of MacGregor v. Zoning Board of Review, R.I., 180 A.2d 811, were it not for the fact that the applicants themselves were not without fault. It was discovered later that they were extending their building upon the 15-foot strip required to exist between the house and the street line and it was necessary for them to seek a variance from the board which they did. Under the circumstances we are of the opinion that respondent is not entitled to have its motion to dismiss granted and it is therefore denied.

We now come to a...