H. J. Bernard Realty Co. v. Zoning Bd. of Review of Town of Coventry, 1544

• Decision Date: 20 June 1963
• Docket Number: No. 1544,1544
• Citation: 96 R.I. 390,192 A.2d 8
• Parties: H. J. BERNARD REALTY COMPANY, Inc. v. ZONING BOARD OF REVIEW OF the TOWN OF COVENTRY. M. P.
• Court: Rhode Island Supreme Court

Page 8

192 A.2d 8

96 R.I. 390

H. J. BERNARD REALTY COMPANY, Inc. v. ZONING BOARD OF REVIEW OF the TOWN OF COVENTRY.

M. P. No. 1544.

Supreme Court of Rhode Island.

June 20, 1963.

Kirshenbaum & Kirshenbaum, William Young Chaika, Providence, for petitioner.

James F. Murphy, Town Solicitor for the Town of Coventry, Joseph G. Miller, Providence, for respondent.

POWERS, Justice.

This is a petition for certiorari seeking to quash a decision of the Coventry zoning board of review denying the petitioner's application for a variance or exception from rear yard lot-line regulations. The application was duly published in the Pawtuxet Valley Daily Times and a hearing held thereon February 6, 1963.

We issued the writ and pursuant thereto the respondent board duly certified the pertinent records to this court for our examination. It is established thereby that the petitioner corporation is the owner of land located at the corner of Tiogue and Pilgrim avenues in the town of Coventry, numbered 429 Tiogue avenue, and conducts a real estate and insurance business from an office building thereon which it desires to extend 16 feet in depth. The building is located in a commercial C-2 district which by article III of the zoning ordinance requires a minimum rear yard lot-line depth of 20 feet. An application was duly filed seeking to vary such requirement so as to permit construction of the proposed addition within 3 1/2 feet of the rear yard lot line. Because the building is not squared with the property line, the rear thereof with the addition constructed would vary from a minimum of 3 1/2 feet to 9 1/2 feet from the property line.

At the hearing before the board Henry J. Bernard testified for petitioner that the addition was needed to accommodate growth of the insurance business by providing office space for an increase in personnel. He further testified that the corporation owned sufficient land to permit the erection of the proposed addition on either side of the building and be within minimum lot-line regulations. To do so, he added, would cut off daylight to the basement, which is presently being used, and reduce the area of land now used for parking. He admitted, however, that other basement windows could be provided to compensate for those lost if the proposed addition were moved from the rear to a side of the building.

Specifically asked, 'What would be the objection, the difficulty you have now if you went to this other side of the building where you have so much space?' Mr. Bernard replied, 'There wouldn't be difficulty, but we have got that extra room in back, why can't we use it?'

Irving A. Horton, owner of the premises to the rear of the office building, the only property owner directly affected by the proposed addition, testified that he had no objection to the proposal, adding that petitioner had agreed to construct a 'cedar type upright fence' along the lot line.

The board considered the evidence and in denying the application stated in its opinion: 'The applicant for the special exception from the provisions of this ordinance did not show to the satisfaction of the Board that such relief would not be contrary to the public interest. It is the unanimous opinion of the Board that the proximity of the proposed addition to the lot line in question would not serve the best interests of the community.'

It is petitioner's contention that the decision is arbitrary and constitutes an abuse of the board's discretion. It argues that the board based its decision on the provisions of art. VIII, secs. 1 and 2, of the zoning ordinance and misconceived the applicable law as laid down in several decisions of this court.

Article VIII, secs. 1 and 2, provide as follows:

'Section 1. Burden on Applicant

'The applicant for a variance from the provisions of this ordinance shall show to the satisfaction of the Board that such relief will not be contrary to the public interest and that owing to special conditions a literal enforcement of the provisions of this ordinance would result in unnecessary hardship.'

'Section 2. Unnecessary Hardship

'The unnecessary hardship which an applicant seeks to avoid shall not have been imposed by any action of the applicant since the enactment of this ordinance. Such hardship shall arise from special conditions or features of the land in question rather than the physical or economic conditions of the applicant.'

The petitioner urges that the board construed 'unnecessary hardship' as loss of all beneficial use which, it argues, this court held not to be the test in seeking relief from minimum lot-line regulations. Viti v. Zoning Board of Review, R.I., 166 A.2d 211; Reynolds v. Zoning Board of Review, R.I., 187 A.2d 667; DeFelice v. Zoning Board of Review, R.I., ...