Flynn v. Zoning Bd. of Review of City of Pawtucket

• Decision Date: 09 June 1950
• Docket Number: No. 941,941
• Citation: Flynn v. Zoning Bd. of Review of City of Pawtucket, 73 A.2d 808, 77 R.I. 118 (R.I. 1950)
• Parties: FLYNN v. ZONING BOARD OF REVIEW OF CITY OF PAWTUCKET. M. P.
• Court: Rhode Island Supreme Court

Page 808

73 A.2d 808

77 R.I. 118

FLYNN v. ZONING BOARD OF REVIEW OF CITY OF PAWTUCKET.

M. P. No. 941.

Supreme Court of Rhode Island.

June 9, 1950.

Corcoran, Foley & Flynn, Joseph F. Flynn, Stanley Bednarczyk, Pawtucket, for petitioner.

Crowe & Hetherington, Pawtucket, for respondent.

FLYNN, Chief Justice.

This is a petition for certiorari seeking to have this court reverse a decision of the respondent board granting an application for an exception or variance from the provisions of the zoning ordinance of the city of Pawtucket so as to permit certain land located in a residential zoning district to be used for retail business purposes. Pursuant to the writ the respondent board has certified to this court the records pertaining to the decision, including a transcript of evidence taken at the hearing on the application.

It appears that Frank F. Crook, hereinafter called the applicant, is the owner of a large unimproved parcel of land situated on Newport avenue in the city of Pawtucket. The land fronts on the easterly side of Newport avenue about 715 feet and extends back easterly therefrom about 600 feet on Waterman street which bounds it on the north and about 500 feet on Gates street which bounds it on the south. This whole parcel, containing approximately 419,532 square feet, is located in a residence B district under chap. 312, sec. 4.A., of the zoning ordinance of the city of Pawtucket approved February 22, 1928.

The following uses are permitted in such district: '(1) Any use permitted in this ordinance in any Residence A District. (2) A detached house for two housekeeping units only, or a semi-detached house for two housekeeping units only. (3) Apartment house, boarding house, or hotel, as defined in the Building Ordinance. There shall be no display advertising exhibited except a small announcement sign on the building, and no public restaurant or dining room except as an accessory use. (4) A gasoline filling station or a stable, if approved by the Board of Review. (5) An aeroplane landing field, airship hanger, and accessory buildings and structures, if approved by the Board of Review.' (Italics ours.)

Apparently for more than ten years this general neighborhood has been developing increasingly and solely for residential purposes. Only three nonconforming uses are located within an extensive surrounding area and apparently they were in existence before the ordinance was adopted. There is a retail shopping district at the corner of Newport avenue and Armistice boulevard which is about 1000 feet to the north of applicant's land.

The applicant requested an exception or variance to permit a large portion of the above-described parcel of land to be used for the building of three one-story retail stores with provision for the privilege of parking about 340 automobiles between the buildings and in the rear thereof. The land thus proposed for a retail business use measure 715 feet on Newport avenue and extends back easterly 200 feet on Waterman and Gates streets respectively and contains about 143,000 square feet in area. According to the proposed plan one store would be located on Newport avenue approximately in the center and a similar store would be built on that avenue at each side of the land. The application also contained a request for permission to group these three buildings into one large building in the center if later this was desirable.

At a hearing on the application duly held by the board, no person appeared in favor of granting it except the applicant's attorney who explained the accompanying plan for redevelopment and the proposed use. However, several owners of dwelling houses in the same zoning district and in the immediate neighborhood appeared to oppose the granting of the application. Their objections were based upon different grounds, as for example, among others, that the application in effect sought a rezoning of the residence B district; that it was spot zoning for the applicant, which was not open to the other owners; that it would increase traffic hazards on Newport avenue and the side streets, especially in the season when racing was held at nearby Narragansett Park; that it would unreasonably transform the general character of the neighborhood into a business area with large parking facilities, thus depreciating the value of the existing dwellings and making the section undesirable for residential purposes as originally intended and zoned; and that it effectually would cause a breaking down of the residential zoning restrictions and thus defeat the purpose of the act.

The board thereafter visited certain neighborhood retail store developments in parts of Providence, Rhode Island, and Brookline, Massachusetts, and upon consideration by unanimous vote granted the application 'with the following restrictions: (1) The single story buildings will be grouped into one building equidistant from Waterman Street and Gates Street; (2) That a barrier be erected along the westerly line of Benjamin Street continued, the barrier to be approved by the Board.'

The petitioner here is one of the remonstrants who personally appeared at the hearing and opposed the granting of the application. He specifically alleges in the petition and now contends that the provisions of the zoning ordinance, sec. 16, subsec. (8), under which the respondent board purported to act in granting an exception, is invalid and void on the ground that it is an improper redelegation of legislative power by the city council to the board; that the board therefore was without jurisdiction to grant this application for an exception because in effect it requested a permit to rezone from residence to business a large district containing the equivalent of twenty-eight standard size house lots as shown on the surrounding plat, whereas such a change in the zoning district could properly be made only by the city council in the exercise of its legislative power in accordance with the enabling act; and that even if the board is assumed to have jurisdiction the decision, whether on the basis of an exception or variance, is not supported by evidence, is contrary to the general purpose and other provisions of the act, and therefore is arbitrary and an abuse of discretion.

The respondent contends first, that the petitioner is not an aggrieved person entitled to have a review of this decision; secondly, that the provision of the ordinance in question, if properly construed, is a valid delegation of authority to the respondent board to act within general limitations; and finally, that its decision is supported by evidence and is not arbitrary or an abuse of discretion.

In relation to respondent's first contention, neither the enabling act nor the zoning ordinance describes precisely who is an aggrieved person for the purpose of bringing a petition for certiorari to have such a decision reviewed by this court. But generally speaking the owner of property, the use of which naturally would be affected adversely by a decision granting an exception or variance, is considered to be an aggrieved person having a right to such a review. Madden v. Zoning Board of Review, 48 R.I. 175, 136 A. 493. See also Buckminster v. Zoning Board of Review, 69 R.I. 396, 33 A.2d 199, and M. & L. Die & Tool Co. v. Board of Review, R.I., 71 A.2d 511. In the instant case it appears that petitioner lives in his own house which is located within a street or two of applicant's land and is in the same established residential zoning district. In our opinion the nature and extent of the proposed change is such that it naturally and reasonably would affect the value and use of property in the immediate vicinity. The petitioner therefore is an aggrieved person having a right to claim a review of the board's decision.

The question raised by respondent's second contention is whether sec. 16, subsec. (8), of the ordinance is a valid grant of power by the council to the respondent board. This is the first time, so far as we are informed,...