Harrison v. Hopkins
| Decision Date | 03 December 1926 |
| Docket Number | No. 465.,465. |
| Citation | 135 A. 154 |
| Parties | HARRISON v. HOPKINS, Inspector of Builddings, et al. |
| Court | Rhode Island Supreme Court |
Petition by John Harrison, Jr., for writ of certiorari, under Pub. Laws 1923, c. 430, § 2, directed to Spencer B. Hopkins, Inspector of Buildings, and another. Petition granted.
See, also, 134 A. 926.
Rosenfeld & Hagan, of Providence, for petitioner.
Elmer S. Chace, City Sol., and Francis D. McManus, Asst. City Sol., both of Providence, for respondents.
BARROWS, J. Petitioner obtained a writ of certiorari directed to Spencer B. Hopkins, inspector of buildings, and to the zoning board of review of the city of Providence. Pub. Laws 1923, c. 430, § 2.
Upon hearing, this court quashed the writ so far as it applied to Hopkins, the inspector of buildings, a mere ministerial officer, and heard the case against the zoning board of review. We found that petitioner was seeking to quash the decision of the zoning board of review refusing to permit a variation of the zoning ordinance in favor of petitioner. This variation was permissible by said section 2 granting powers to the board, as follows:
"To authorize upon appeal in specific cases such variance in the application of the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done."
Petitioner, whose lot contained 4,972 square feet, sought the privilege of completing the erection of a partly built two-family dwelling house in what, at the time of the petition, was the dwelling house A 1 district, wherein an area of 4,500 square feet was required for each family. He based his petition on the alleged hardship to him arising from a change in zoning lines during construction. This change brought into the A 1 district petitioner's land which, at the time he received his permit to build, was in the B 1 district, in which 2,000 square feet per family was the requirement. Finding after examination of his petition that it was one addressed to the judicial discretion of the zoning board of review, we examined the record to discover the facts upon which that board relied. The only evidence appearing was a remonstrance signed by neighbors within a radius of 100 feet of the proposed building. This remonstrance alleged that petitioner, before starting construction, knew of the pendency of a petition to change the zone lines, that after a change he had failed to complete his building within the time required by law, and had thereby forfeited his right to proceed, that it now readily could be changed into a one-family building, that it was out of harmony with the other buildings in the neighborhood, all of which were one-family houses, and that a two-family dwelling house would depreciate the value of neighboring property. Three of the signers personally appeared lie-fore the board. No sworn testimony was taken nor was record or other evidence offered showing what statements were made to the board. Assuming that the board had facts before it upon which to base its decision, we had and could have no way of knowing those facts, and it was not possible intelligently to review without taking testimony the action of the board, as required by statute. Pursuant to the statute (see Rescript November 10, 1026), we set a time at which petitioner and respondents could present oral testimony before us. In accordance with our order, the parties appeared and presented before this court sworn testimony. The authority to take such testimony in these proceedings was by virtue of the zoning statute. Under the statute, the court is permitted to take new testimony, if it deems the same to be necessary, and to "reverse or affirm wholly or partly or [may] modify the decision brought up for review."
From the foregoing recitals, it is apparent that the court's decision may at times and in this case must be based upon evidence other than that before the zoning board of review. It is clear that the question now before us is not the narrow one, whether the board properly exercised its discretion on the facts before it. By the introduction of new testimony, the inquiry has been broadened into whether the facts now on the record warrant the court in making a variation in the requirements of the zoning act in favor of petitioner. We are not longer concerned with the discretion exercised by the board. Our own discretion must be exercised on the altered facts.
The facts before us are that petitioner got a permit for the erection of a two-family house on the southerly side of Calla street on April 24, 1925. At that time petitioner's land was within the B 1 district. Petitioner started work within the period fixed by city ordinance, and in the late fall a washout caused a portion of the cellar wall to cave in. The wall was rebuilt, and on December 2 the brick wort on the foundations was started. Cold weather...
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Delbonis Sand & Gravel v. Town of Richmond
...permit issued for a formerly permitted use. Shalvey, 99 R.I. at 695, 210 A.2d at 591-92. We analyzed two cases, Harrison v. Hopkins, 48 R.I. 42, 135 A. 154 (1926), and Elmcrest Realty Co. v. Zoning Board of Review of Warwick, 78 R.I. 432, 82 A.2d 846 (1951), in which permits were issued, co......
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Goldstein v. Zoning Board of Review of City of Warwick
...that the exception be granted subject to such appropriate conditions and safeguards as the board shall deem necessary. See Harrison v. Hopkins, 48 R.I. 42, 135 A. 154, and Regnier v. City Council, 91 R.I. 387, 162 A.2d This is not to say, however, that affirmative relief must necessarily be......
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Shalvey v. Zoning Bd. of Review of City of Warwick
...when that use was lawful. This issue was present in two cases heard by this court but was decided in neither of them. In Harrison v. Hopkins, 48 R.I. 42, 135 A. 154, a building permit had issued authorizing the erection of a two-family dwelling, a permitted use at the time of the issuance t......
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Sweck v. Zoning Bd. of Review of North Kingstown
...of Review, R.I., 66 A.2d 369. See also Caldarone v. Zoning Board of Review, 74 R.I. 196, 60 A.2d 158. Petitioners, citing Harrison v. Hopkins, 48 R.I. 42, 135 A. 154, further contend that considering the amount expended by them for construction in reliance upon the permit from the building ......