Doherty v. Town Council of Town of S. Kingstown, s. M. P. 676, 677.

• Decision Date: 08 July 1938
• Docket Number: Nos. M. P. 676, 677.,s. M. P. 676, 677.
• Citation: 200 A. 964
• Parties: DOHERTY et al. v. TOWN COUNCIL OF TOWN OF SOUTH KINGSTOWN. SAME v. ZONING BOARD OF REVIEW OF TOWN OF SOUTH KINGSTOWN.
• Court: Rhode Island Supreme Court

200 A. 964

DOHERTY et al.

v. TOWN COUNCIL OF TOWN OF SOUTH KINGSTOWN.

SAME

v. ZONING BOARD OF REVIEW OF TOWN OF SOUTH KINGSTOWN.

Nos. M. P. 676, 677.

Supreme Court of Rhode Island.

July 8, 1938.

Petitions for writs of certiorari by James A. Doherty and others against the Town Council of the Town of South Kingstown and against the Zoning Board of Review of the Town of South Kingstown to review the proceedings of the Town Council of the Town of South Kingstown in connection with the passage of an amendment to a zoning ordinance for that town and to review a decision by the Zoning Board of Review of the Town of South Kingstown, sustaining the action of a building inspector of that town in issuing a building permit.

Writs quashed.

Philip S. Knauer, Philip S. Knauer, Jr., and Knauer & Fowler, all of Providence, for petitioners. James 0; Watts, of Wakefield, for respondent Waters. Thomas H. Gardiner, of Providence, Town Sol., for respondents.

CAPOTOSTO, Justice.

>

These are two petitions for writs of certiorari heard together by agreement of the parties and with the consent of the court. Case M. P. No. 676 is brought to review the proceedings of the town council of the town of South Kingstown in connection with the passage of an amendment to the zoning ordinance for that town. Case M. P. No. 677 is brought to review the decision of August 6, 1937 by the zoning board of review of the town of South Kingstown, sustaining the action of the building inspector of that town in issuing a building permit to one Letitia K. Waters. The writs have issued and the records in both cases are before this court.

The town council is also the zoning board of review. The proceedings which the petitioners now question took place approximately during the same period of time but on different days, so that there is no confusion as to the capacity in which the respondent was acting in either of these cases. The two cases are separate and distinct from each other. Furthermore, our decision in M. P. No. 677, which raises the real issue between these parties, may dispose of both cases. In the circumstances, therefore, we will first direct our attention to that case and will consider M. P. No. 676 only in case it becomes necessary.

The petitioners' appeal from the ruling of the building inspector granting a building permit to Letitia K. Waters without certain restrictions was fully heard by the town council of the town of South Kingstown, sitting as a zoning board of review, which we will hereafter call "the board", on July 8, 20, 27, 29, 1937. The petitioners and Letitia K. Waters were represented by counsel at these hearings. The transcript of three hundred seventy-two pages before us shows that the board permitted both sides to introduce testimony with great liberality, without resort to strict rules of evidence. They apparently knew that further proceedings might follow their decision and therefore allowed a complete stenographic record to be made, so that the contentions of the parties and the action of the board in reference thereto might clearly appear in any such proceedings.

The record shows that the petitioners own a house on lot 36 on "plat of Matunuck Point, * * * 1925." The deed to that lot, dated June 17, 1927, contains a number of restrictions, the only ones pertinent in the instant case being the following: "1. Only one one-family residence * * * shall be erected on any one of the residence lots herein above described. * * * 4. The dwelling to be erected on each plot shall be placed back at least twenty-five (25) feet as an irreducible minimum from the front line of plot, piazza included, and at least seven and one-half (7 1/2) feet from the side lines of each adjoining plot, and at least ten (10) feet from any side or rear street line * * *." Letitia K. Waters and her husband, Frank G. Waters, were the owners of lots 33, 34 and 35 on the same plat, by deeds dated August 20, 1926, the two deeds to such lots containing the same restrictions just quoted. It would appear from the evidence that all the deeds conveying lots on this plat were subject to the same restrictions.

It is clear from the evidence that the plat above mentioned comprises what was formerly the Little Comfort Farm, which embraced the whole of Matunuck Point, a tract of land extending northerly from its southerly boundary on the Atlantic Ocean into a body of water, with many coves, creeks, channels and inlets, which is commonly known locally as "Potter's Ponds" and is so designated in the ordinance under consideration. Segars Cove and Beach House Cove are included in "Potter's Ponds." A narrow neck of land, bounded on the south by the Atlantic Ocean and on the north by Beach House Cove, connects Matunuck Beach on the west with Matunuck Point on the east. The ocean shore of the former is a sandy beach, while that of the latter is rocky.

The maps in evidence, especially petitioners' exhibit 7 upon which they strongly rely, show that Matunuck Point is bounded on the west by the coves just mentioned and on the north and east by "Potter Pond." Petitioners' exhibit 7 is a "Compiled Map", prepared for the purposes of the hearing before the zoning board by Fred V. Waterman, a civil engineer, who testified for the petitioners at great length from this map. It shows all the lands and inland waters in the town of South Kingstown to the east of the districts or section commonly known as Matunuck Beach as far as the town line, some fourteen miles or more away from that district or section. According to petitioners' exhibit 7 "Potter Pond" has two channels in its southeastern portion, a southern and a northerly channel, which, after winding about independently of each other for some distance, finally converge into a common and tortuous watercourse running to the division line between the towns of South Kingstown and Narragansett. This watercourse then flows into Point Judith Pond, which runs into the Atlantic Ocean. It is to be observed that at the town line the common channel just mentioned is some distance north of the Atlantic Ocean.

The entire section of South Kingstown, commonly known as Matunuck Beach, is to the west of Matunuck Point. Petitioners' exhibit 7, as well as all the other maps in evidence, show that with the exception of the narrow neck of land above mentioned connecting this section with Matunuck Point, it is bounded on the east by Segars Cove and Beach House Cove. It is an older development and far more densely populated, especially by summer residents, than Matunuck Point. Buildings of all kinds were erected in this section.

In the words of petitioners' principal witness, who had considerable to do with the preparation and proposal of the building ordinance, the resulting conditions in that district were that "in certain areas there were two or three houses being put up on one lot; there were also several fires in that district which caused loss of property, and the beach was becoming more popular, more people were coming down, and it appeared that something should be done to keep that condition away from the beach." This witness and a few others, as members of or in cooperation with the town relations committee of the Matunuck Beach Improvement Association, were instrumental in drafting and proposing the building ordinance in the form that it was adopted by the town council, after a public hearing which was attended by the residents of Matunuck Beach but by very few, if any, residents of Matunuck Point.

This witness further testified that in drafting the zoning ordinance and the building regulations connected therewith, "the main talk was in reference to the regulations; there was very little consideration given to the boundaries * * *. We never discussed them as boundaries, as such, that's true." When asked why the eastern boundary in the zoning ordinance was put in as "Potter's Ponds", his answer was: "I really don't know."

The particular parts of the zoning ordinance and building regulations in question, passed June 8, 1931, are as follows: "Section 1. Section 12 of the Building Code is hereby amended to read as follows: 'Zone D That part of the Town of South Kingstown known as Matunuck Beach and bounded on the North by the Northern boundary of the Matunuck Park Plat, on the East by Potter's Ponds, so called, on the South by the Atlantic Ocean and on the West by the Matunuck Drift Road.' (italics ours) * * * Section 3. The Building Code is hereby further amended by adding * * *: Section 26. In Zone D the following regulations shall apply: (A) Open Space. In Zone D for every building erected for residence use, there shall be open space on the lot equal to at least 40% of the area of the lot. (B) Front Yard. In Zone D every such building shall have a front yard not less than 10 feet in depth along its principal street frontage and not less than 5 feet in depth along every other street frontage. (C) Side Yard. In Zone D every such building shall have a side yard along each lot line other than a street line or a rear line. The width of the side yard shall be not less than 5 feet for any such building two stories or less in height and not less than 8 feet for any such building more than two stories in height. (D) Rear Yard. In Zone D every such building shall have a rear yard having a depth of not less than 25 feet."

Omitting many details which have no material bearing on the question before us, the record shows that in May 1937, Letitia K. Waters started excavating a foundation for a house on lot 35 which lies immediately east of petitioners' lot 36. There is considerable conflict between the parties whether Mrs. Waters' house, which, according to the pictures in evidence, was actually boarded in when the petitioners' appeal was heard by the board, was a building two stories high or more than two stories high. Unless the zoning ordinance and the building regulations above quoted apply to Matunuck Point, this matter need not be...