May-Day Realty Corp. v. Board of Appeals of City of Pawtucket, MAY-DAY

• Decision Date: 19 April 1961
• Docket Number: No. 1342,MAY-DAY,1342
• Citation: 169 A.2d 607,92 R.I. 442
• Parties: REALTY CORP. v. BOARD OF APPEALS OF the CITY OF PAWTUCKET. M. P.
• Court: Rhode Island Supreme Court

Page 607

169 A.2d 607

92 R.I. 442

MAY-DAY REALTY CORP. v. BOARD OF APPEALS OF the CITY OF PAWTUCKET.

M. P. No. 1342.

Supreme Court of Rhode Island.

April 19, 1961.

Corcoran, Foley & Flynn, Francis R. Foley, Pawtucket, for petitioner.

John A. O'Neill, City Sol., Pawtucket, for respondent Board of Appeals.

Melvin L. Zurier, Providence, for remonstrants.

PAOLINO, Justice.

This is a petition for a writ of certiorari to review the decision of the zoning board of review of the city of Pawtucket denying the petitioner's application for an exception to or a variance from the zoning ordinance of that city for permission to erect in a residence A district two ten-family apartment houses on land owned by the petitioner. Pursuant to the writ the pertinent records have been certified to this court.

It appears therefrom that the land in question is a tract of vacant land containing in excess of 58,000 square feet and described as lot numbered 852 on assessors' plat No. 66. It is somewhat rectangular in shape, with a frontage of 129.55 feet on Alfred Stone Road and 119 feet on Ridge street, having a depth of 457.42 feet on one side and 477.64 on the other. Under the zoning ordinance a residence A district is the highest class zone. Although a greenhouse and part of Swan Point Cemetery are located in the immediate vicinity of petitioner's land, the character of the neighborhood is essentially residential, the houses therein consisting for the most part of one-family dwellings.

The petitioner, as we have already stated, desires to use its land for the erection of two apartment houses, one facing Alfred Stone Road and the other facing Ridge street. The plans indicate that the proposed structures would consist of U-shaped buildings and that parking areas would be provided. An apartment house is not a permitted use in a residence A district under the pertinent zoning ordinance. The petitioner, therefore, filed the instant application for an exception under sec. 26.18(8)(a) and (b) of the ordinance or a variance under G.L.1956, § 45-24-19, subd. c.

After a hearing the board entered a written decision denying the application. It expressly found that the proposed use would not be in harmony with the character of the neighborhood nor appropriate to the uses permitted in said district and that the property in question was suitable for the uses for which it was zoned.

The petitioner contends that in denying it a variance, the board was arbitrary and abused its discretion. It argues that the evidence clearly shows that because of the peculiarly long and narrow shape of the land in question it is suitable for no purpose other than the proposed apartment buildings, and that consequently a literal enforcement of the ordinance would deprive it of all beneficial use of its land or of a substantial portion thereof.

We do not agree with such contention. There is a conflict in the evidence on the question whether it would be feasible to subdivide petitioner's land into a number of smaller lots for the uses permitted in said district. There is also conflicting evidence on the question whether the cost of doing this would be...