Goldstein v. Zoning Board of Review of City of Warwick

• Decision Date: 09 March 1967
• Docket Number: No. 1794,1794
• Citation: 101 R.I. 728,227 A.2d 195
• Parties: Norton H. GOLDSTEIN et al., d/b/a Times Development Company v. ZONING BOARD OF REVIEW OF the CITY OF WARWICK. M.P.
• Court: Rhode Island Supreme Court

Page 195

227 A.2d 195

101 R.I. 728

Norton H. GOLDSTEIN et al., d/b/a Times Development Company v. ZONING BOARD OF REVIEW OF the CITY OF WARWICK.

M.P. No. 1794.

Supreme Court of Rhode Island.

March 9, 1967.

[101 R.I. 734] Charles Butterfield, Jr., Providence, for petitioners.

James R. Morriss, City Sol., Howard R. Haronian, Asst. City Sol., for respondent Board.

OPINION

POWERS, Justice.

This is a petition for certiorari to review the action of the respondent board of review denying the petitioners' application for an exception or variance from the terms of the zoning ordinance. The writ issued and in compliance with its mandate the respondent board duly certified the records in the cause to this court for our examination.

It appears therefrom that petitioners are the owners of a parcel of land designated as lot 92 on assessor's plat 271 which contains approximately 32,000 square feet. The land fronts on the easterly side of Greenwich avenue for 171.71 feet and is irregular in shape. It is bounded on the north by Jewett street and on the south by a Howard Johnson restaurant. Directly across Greenwich avenue is a large Apex shopping complex and the state is constructing a center island on Greenwich avenue as a result of its relocation of East avenue to empty traffic off route 95, which traffic will converge at the junction of East, Main and Greenwich avenues to the south of the subject property. There is presently located a vacant house and garage on the front portion of the lot which is zoned residence A7.

The petitioners proposed to remove said house and garage to the rear portion of the lot so as to maintain the residential character of that portion and thus establish a buffer zone. The relief sought by way of a special exception, however, was to construct a gasoline service station fronting on said Greenwich avenue, dedicating 21,128 square feet to that use.

After the application was duly advertised and a public hearing held, three members of the board voted to grant the application while two members voted to deny it. As four members of the board voting to grant the application are required by the provisions of G.L.1956, § 45-24-19, the board notified petitioners that their application had been denied without stating the reasons for the action of those voting either in the affirmative or negative.

The petitioners contend that in light of the evidence adduced the action of the board was arbitrary, constituted an abuse of discretion and on the state of the record before us should be reversed, subject to such appropriate conditions and safeguards as the board may determine to be necessary. In support thereof they cite Robinson v. Town Council, 60 R.I. 422, 199 A. 308; Winters v. Zoning Board of Review, 80 R.I. 275, 96 A.2d 337, and Thomson Methodist Church v. Zoning Board of Review, R.I., 210 A.2d 138.

We think there is merit in this contention. This court has had occasion in the past to point out that by its very nature zoning interferes with and restricts the right of a property owner to devote his property to uses that would be proper at common law. City of Providence v. Stephens, 47 R.I. 387, 133 A. 614. Nevertheless, such interference and restrictions will be countenanced if the legislation or regulations out of which they arise constitute a valid exercise of the police power in that they tend to promote the public health, safety, morals and general welfare. Heffernan v. Zoning Board of Review, 50 R.I. 26, 144 A. 674.

However a limitation on the use of property which is not reasonably related to the public health, safety, morals and general welfare is confiscation and in violation of art. XIV of amendments to the United States constitution and represents a taking of private property for public use without just compensation in violation of art. I, § 16, of the Rhode Island constitution. City of Providence v. Stephens, supra.

So, too, in the application of a zoning ordinance to a particular piece of property there should be no confiscatory deprivation of the property owner's right to a desired use valid at common law, and it was for the purpose of avoiding an unnecessarily harsh restriction that the general enabling act made provisions for variances while ordinances adopted pursuant thereto made provisions for special exceptions.

In the instant cause petitioners applied for either a variance under the enabling act as reiterated in § 14-2-2 of the city ordinance or for a special exception as provided by § 14-2-3 of said ordinance. This latter provision reads: "In appropriate cases and subject to appropriate conditions and safeguards to make special exceptions to the...