Lindberg's, Inc. v. Zoning Bd. of Review of City of East Providence
| Decision Date | 06 March 1970 |
| Docket Number | No. 830-M,830-M |
| Citation | 106 R.I. 667,262 A.2d 628 |
| Parties | LINDBERG'S, INC. v. ZONING BOARD OF REVIEW OF the CITY OF EAST PROVIDENCE. P. |
| Court | Rhode Island Supreme Court |
Donald A. McDonald, East Providence, for petitioner.
Joseph T. Little, Asst. City Solicitor, William F. Fidalgo, East Providence (on behalf of Shell Oil Co.), for respondents.
This petition for certiorari was brought pursuant to the provisions of G.L.1956, § 45-24-20, seeking a review of a decision of the Zoning Board of Review of the City of East Providence wherein a special exception was granted permitting the applicant to erect and operate a gasoline service station on three lots of land located at the intersection of Pawtucket and Ferris Avenues. The writ issued, and the respondent has returned the pertinent records to this court.
It appears from the record that the Shell Oil Company, as lessee, and others, as the owners of these lots, made application for a special exception to erect the service station on lots 1, 2, and 3 on Assessor's Plat 37, which tract is presently zoned C-2 commercial uses. It further appears that a gasoline service station had been operated on lot No. 1 for several years but that the operation thereof was discontinued some months prior to the instant application. The application seeks relief expressly under the provisions of sec. 32-29(c)(2) of the zoning ordinance wherein the board is empowered to hear and decide special exceptions. In sec. 32-8 of the ordinance a gasoline service station is a permitted use in a C-2 district only by way of a special exception.
The respondent argues that in granting the exception here under consideration the board did not abuse its discretion. It contends that a gasoline service station is a permitted use in a C-2 district and that the provisions of sec. 32-23 of the ordinance are merely regulatory of the manner in which that use may be implemented. Relying on Westminster Corp. v. Zoning Board of Review, 103 R.I. 381, 238 A.2d 353, respondent contends that the board had authority to permit a deviation from those provisions of the ordinance which are regulatory of the alleged permitted use. It is true that, in cases involving ordinance provisions which are merely regulatory of a permitted use, a board of review may permit deviations therefrom upon a showing that a literal enforcement of such regulatory provisions would have an effect so adverse as to preclude the full enjoyment by the owner of the land of the permitted use.
We cannot agree, however, that a gasoline service station is a permitted use in a C-2 commercial district under the pertinent ordinance. It is clear from the language of the ordinance that a gasoline service station is a conditionally permitted use in a C-2 district, and is granted only upon a showing that any conditions precedent to the grant thereof prescribed in the ordinance have been satisfied. It is settled that the standards set out in an ordinance prescribing conditions to be met, with respect to the grant of an exception prescribed therein, are conditions precedent to an exercise of the discretion of the board which must be satisfied prior to any affirmative action. Melucci v. Zoning Board of Review, 101 R.I. 649, 226 A.2d...
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Town of Brighton v. Griffin, 85-136
...ceased operations for six months or longer. The Supreme Court of Rhode Island faced a similar question in Lindberg's, Inc. v. Zoning Board of Review, 106 R.I. 667, 262 A.2d 628 (1970). In that case, Shell Oil Company sought a permit for a gasoline service station to be operated on three lot......
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