Fiske v. Zoning Bd. Of Review Of Town Of East Providence., M. P. No. 825.

• Citation: 50 A.2d 65
• Decision Date: 21 January 1947
• Docket Number: M. P. No. 825.
• Parties: FISKE v. ZONING BOARD OF REVIEW OF TOWN OF EAST PROVIDENCE.
• Court: United States State Supreme Court of Rhode Island

50 A.2d 65

FISKE

v.ZONING BOARD OF REVIEW OF TOWN OF EAST PROVIDENCE.

M. P. No. 825.

Supreme Court of Rhode Island.

Dec. 6, 1946.

Rehearing Denied Jan. 21, 1947.

See 50 A.2d 779.

Original proceeding on the petition of Edward A. Fiske against Zoning Board of Review of the Town of East Providence for a writ of certiorari to review the action of the board denying petitioner's application for certain exemptions or variations under the zoning ordinance wherein the writ was issued and record of board was certified.

Decision affirmed, writ quashed, and papers remitted to respondent board.

CONDON, J., dissenting.

Clarence N. Wolley, of Pawtucket, and Walter J. Hennessey, of Providence, for petitioner.

William C. H. Brand, of Providence, for respondent.

Sayles Gorham, of Providence, for remonstrants.

CAPOTOSTO, Justice.

This is a petition for a writ of certiorari to review the action of the zoning board of review of the town of East Providence, hereinafter referred to as the board, in denying the petitioner's application for certain exceptions or variations under the zoning ordinance of that town. The writ was issued and the record of the board was certified to this court.

It appears from the record that the petitioner, who operates a dairy business at the corner of Wilson and Washburn avenues in East Providence, in this state, is the owner of two lots on Wilson avenue, which lots are numbered 78 and 66 on assessors' plat 34 of that town. Wilson avenue runs approximately east and west. He bought lot 78 in 1921 and has used it in connection that the dairy business since that time. In 1926 the town adopted a zoning ordinance. Under this ordinance lots 78 and 66, the latter of which is next easterly to the former, were both included in a residence ‘A’ zone, the highest zoning use established by the ordinance. As lot 78 was then actually used for business, such use was permitted by the ordinance as a nonconforming use.

The petitioner bought lot 66 ‘about 1936.’ On this lot and approximately 60 feet from the easterly line of lot 78, there is an existing cement driveway, some ten feet wide, extending from Wilson avenue for a considerable distance into lot 66, a portion of which driveway has heretofore been rightfully used to serve a large one-family dwelling house, a two-car garage, a barn and several other small buildings on that lot. The dwelling house is occupied by the petitioner as his home. It is important to keep in mind that this driveway runs approximately north and south only, practically parallel with the division line between lots 78 and 66. In other words, this driveway does not now cut across lot 66 in a westerly direction to lot 78.

In 1944 the petitioner applied to the board for an exception to the zoning ordinance so that he might construct an addition, about 59 feet in length and 18 feet in width, to the easterly side of an existing dairy building on lot 78, which building was nine feet from the division line between lots 78 and 66. The southerly 18 feet of the proposed addition was to be approximately 90 feet from the northerly line of Wilson avenue. By the erection of the proposed addition, the nonconforming use on lot 78 would therefore be extended nine feet into lot 66.

After several hearings, at which the owners of neighboring property objected vigorously to the granting of the petition, their objections being based mainly on the grounds that the entire district was wholly residential and that the petitioner should not be permitted to enlarge his nonconforming use, the board granted the petition upon the condition that the petitioner ‘Shall only be allowed to use lot 66 from the present proposed addition running 9 feet parallel with lot 78 to Wilson Avenue.’ Fiske v. Zoning Board of Review, 70 R.I. 426, 40 A.2d 435, 437.

The petitioner thereafter filed in this court a petition for a writ of certiorari to review this decision of the board alleging, among other things, that ‘The restriction of the Zoning Board of Review with respect to the access of said proposed and granted addition contained in its said decision * * * nullifies and renders valueless the right accorded to the petitioner to erect said proposed addition * * *.’ That petition for certiorari prayed that the portion of the decision of the board which in effect denied to the petitioner the use of the cement driveway be quashed and that there be inserted in place thereof the following language: ‘and said petitioner may have access to said proposed and granted addition by means of said present driveway located on said Lot 66 for all purposes for which said proposed addition may be used.’ In that case, petitioner's contention on this point was that the use of the cement driveway on lot 66, which driveway is directly involved in the instant case, was necessarily incidental to his application for the proposed addition and the granting thereof. That petition for certiorari was denied and dismissed by us without prejudice. Fiske v. Zoning Board of Review, supra. During the pendency of that case or immediately thereafter the petitioner built the new addition.

In his petition for an exception to the zoning ordinance in the case at bar the petitioner asks: (1) That he be allowed to use the cement driveway on lot 66 in connection with the dairy building and approach thereto from Wilson avenue as extended by the board into lot 66; and (2) that he further be allowed to use a portion of that lot, approximately 70 by 90 feet, for storing and parking trucks and other vehicles used by him or others in connection with the dairy business. The portion of lot 66 which the petitioner now desires to use for storing and parking trucks and other vehicles begins at a point in the westerly line of lot 66 approximately 90 feet northerly from Wilson avenue, thence northerly along said line about 93 feet to the northeasterly corner of lot 78, thence turning a right angle and running easterly 70 feet, thence turning and running southerly for about 90 feet, thence turning a right angle and running westerly 70 feet to the point of beginning.

We recall at this point that the cement driveway on lot 66 was originally 10 feet wide and about 60 feet easterly from the division line between lots 78 and 66. If widened to 20 feet, as requested, such driveway would be about 41 feet from the nine-foot strip of lot 66 which the board allowed the petitioner to use as a nonconforming use in connection with the new addition hereinbefore mentioned. If both of the exceptions requested by the petitioner in the instant case were granted, it would leave a portion of lot 66, approximately 90 by 41 feet, hereinafter referred to as area X for convenience, as a pocket between the easterly line of lot 78 as previously extended by the board for a nonconforming use and the westerly side of the cement driveway, which area would continue to be zoned for residential purposes under the ordinance.

We note at this point that the exception which the petitioner seeks with reference to the cement driveway is far broader than appears on first impression. In substance and effect he is not only asking for the use of the original cement driveway for commercial purposes, but he is also asking that he be permitted to enlarge that driveway to a width of 20 feet and to add an arm or extension thereto, running in a westerly direction across land of lot 66, now zoned for residential purposes, for a distance of about 41 feet to the new addition which he was permitted to build on that lot and to which he was granted an approach from Wilson avenue. If the cement driveway and the proposed widening and extension thereof were allowed to be used for commercial purposes, it would leave land of lot 66 zoned for residential use to the east of the cement driveway and to the north and south of the extension thereof, a circumstance which was well within the power of the board to consider.

Several hearings were held by the board on the petition and evidence was submitted. The petitioner's testimony was, in substance, that if he were allowed the use of the existing cement driveway with the proposed extension, he could conduct his growing business more expeditiously and without incurring great expense in the hiring of more help, in the rearrangement of a certain portion of the interior layout of the dairy, and in the construction of another driveway on the nine-foot strip of lot 66 from Wilson avenue to the southerly end of the new addition, which additional driveway, according to him, would add to the commercial aspect of the property. He further testified that Wilson avenue in the vicinity of the dairy would be freed from vehicular congestion if he were permitted to use the cement driveway as above indicated and were further allowed to use that part of lot 66 hereinbefore described for the storage and parking of trucks and other vehicles.

The owners of property in that vicinity again objected vigorously, in person, by attorney and by written communications to the board, to the granting of either of the exceptions sought by the petitioner. They urged, in general, that the entire district for a considerable distance had been and was wholly residential; that, when the petitioner bought lot 66, he knew that it was zoned for residential purposes; and that he should not now be permitted to further enlarge his nonconforming use, as each such enlargement would tend to change the provisions of the ordinance by means of exception...