Heffernan v. Zoning Bd. of Review of City of Cranston
| Decision Date | 13 February 1929 |
| Docket Number | NO. 486.,486. |
| Parties | HEFFERNAN v. ZONING BOARD OF REVIEW OF CITY OF CRANSTON. |
| Court | Rhode Island Supreme Court |
Petition for certiorari by Herbert J. Heffernan against Zoning Board of Review of City of Cranston to review a decision of the Board. Petition denied and dismissed, and decision of Board approved.
Edward M. Sullivan and John J. Sullivan, both of Providence, for petitioner.
Daniel P. Macdonald, City Sol., of Cranston, for respondent.
The above-entitled cause is a petition for a writ of certiorari to review a certain decision of the respondent board.
The decision was one denying the application of the petitioner that the respondent authorize an exception or variation of the zoning regulations of the city of Cranston which would permit the petitioner to erect a building for business purposes upon land belonging to the petitioner in Cranston, which land under the provisions of the zoning ordinance is included in a residential district.
The application is before us for the second time. In our former opinion (Heffernan v. Zoning Board of Review, 49 R. I. 283, 142 A. 479), we have set out at length the essential facts in the case. The application of the petitioner is not based upon a claim of right, but is made in reliance upon the provisions of the zoning ordinance, which gives to the respondent discretionary power to authorize the exception or variation which the petitioner seeks. When the application was before the respondent board for the first time, the board was of the opinion that it was without jurisdiction to grant the application. Upon review we held that decision to be erroneous, and remitted the matter to the respondent with direction to grant a hearing to the petitioner, and then to make a decision upon the merits of the application. This the respondent board has done and has denied the application. The petitioner is again before us seeking a review.
In our former opinion we endeavored to point out to the petitioner the nature of the essential issue presented to us upon his petition for a review of the board's determination upon this application, which was addressed solely to the respondent's discretion, and we there tried to indicate the distinction between that issue and one which would arise upon a claim of right on the petitioner's part. In disregard of our former opinion, the argument before us of counsel for the petitioner was largely based upon the claim of an infringement of the petitioner's constitutional rights, in the establishment of a zoning regulation which prevented the use of the petitioner's property for business purposes.
We have held that the Enabling Act of the General Assembly (Gen. Laws 1923, c. 57, Pub. Laws 1923, c. 2315), in reliance upon which the zoning ordinances of the various cities and towns have been adopted, was not unconstitutional in so far as it authorized the division of a municipality into separate districts for residential, business, and industrial uses; and that an ordinance, which reasonably conformed with those permissive provisions of the act, constitutes a proper exercise of the delegated police power of the state. City of Providence v. Stephens, 47 R. I. 387, 133 A. 614.
The zoning ordinance of Cranston grants discretionary power to the respondent board to authorize in a special case such a variance in the application of the provisions of the ordinance as will not be contrary to the public interest and will prevent unnecessary hardship, "so that the spirit of the ordinance shall be observed and substantial justice done." In considering an application for such variance, the board must treat the provisions of the ordinance as constitutional and reasonable, and should regard the particular provisions under consideration before it as, in general, representing the public interest. The expressions "contrary to the public interest" and "unnecessary hardship" must be given a reasonable interpretation. As the provisions of the ordinance represent a declaration of public interest, any variance would in some measure be contrary thereto. In this connection, the words "contrary to the public interest" should be interpreted to mean what in the judgment of a reasonable man would unduly, and in a marked degree, conflict with the ordinance provisions. As to the words "unnecessary hardship," it may be said that each of the restrictions of the ordinance upon what would otherwise be a lawful use of one's property might be termed a "hardship" to the...
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