Packham v. Zoning Bd. of Review of City of Cranston

• Citation: 238 A.2d 387,103 R.I. 467
• Decision Date: 21 February 1968
• Docket Number: No. 145-M,145-M
• Parties: Muriel S. PACKHAM v. ZONING BOARD OF REVIEW OF the CITY OF CRANSTON. P.
• Court: United States State Supreme Court of Rhode Island

Page 387

238 A.2d 387

103 R.I. 467

Muriel S. PACKHAM v. ZONING BOARD OF REVIEW OF the CITY OF CRANSTON.

No. 145-M.P.

Supreme Court of Rhode Island.

Feb. 21, 1968.

[103 R.I. 473] Burton Salk, Joel Robinson, Providence, for petitioner.

Jeremiah S. Jeremiah, Jr., Asst. City Sol., Cranston, for respondent.

OPINION

ROBERTS, Chief Justice.

This is a petition for certiorari brought to review a decision of the zoning board of review of the city of Cranston granting permission to erect a gasoline service station on a parcel of land presently zoned C-2 for commercial uses located on Narragansett boulevard in that city. The writ issued, and pursuant thereto the respondent board has returned the record in the case to this court. It appears therefrom that the premises under consideration are located at 1052-1054 Narragansett boulevard and are identified as lots 443 and 444 on assessor's plat No. 2 of the city of Cranston. In the application, the applicant is the Sun Oil Company of Terminal Road, Providence, while the owner of lot 444 is stated to be "Sun Oil Company" and the owner of lot 443 "Sun Oil Co. (By Agreement)." The application is executed only by the Sun Oil Company.

There is evidence in the record adduced through one Milton C. Matteson, a representative of Sun Oil Company, that lot 443 is owned by a person he identified only as "Asadoorian" and that Sun proposes to acquire this lot if the board grants the exception here applied for. In short, it is clear from the record that at the time of the application, Sun Oil Company was the owner of lot 444 and the only applicant for the exception, and that the exception was intended to apply to lots 444 and 443, if granted.

It appears from the record that the board made an inspection of the two lots and observed that the present gasoline station located on lot 444 is small and has limited off-street parking facilities; that the old dwelling house located on lot 443 is badly in need of repair; that the commercial uses in the immediate neighborhood include several markets, a dry cleaning establishment, a doughnut shop, and a gasoline station; and that the flow of traffic on Narragansett boulevard is steady and heavy but not congested. The board then went on to find that the proposed use would be in harmony with the character of the neighborhood and appropriate to the uses and buildings authorized in the district; that it would serve the convenience and welfare of the public; that the appropriate use of neighboring property would not be substantially or permanently injured; and that the granting of the application would be in the spirit of the ordinance and do substantial justice. Upon these findings the board voted to grant the exception covering both lots 444 and 443.

In this court the prime issue is whether the board had authority to grant an exception applicable to lot 443, the record not disclosing that Sun was the owner of lot 443, or whether in the circumstances Sun had standing to apply for a change in the zoning regulations applicable to lot 443.

The respondent board concedes that at the time of the application, title to lot 443 was not in the applicant Sun but was in one Satenig Asadoorian, but argues that there was in existence at that time an agreement to purchase the Asadoorian property, that is, lot 443, if the exception were granted. In the transcript there is testimony tending to establish that the Sun Oil Company intended to purchase lot 443 upon approval of its application for an exception by the respondent board.

It must be noted that this is not a case involving an application for a variance pursuant to § 45-24-19(c), wherein the applicant is without some right, title, or interest in the land under consideration. The want of standing in the applicant in such cases to apply for such relief rests upon the theory that hardship within the meaning of the provisions of the enabling act cannot be incurred by a person who is without some right, title, or interest in the property to which the application relates. Tripp v. Zoning Board of Review, 84 R.I. 262, 123 A.2d 144. See Staller v. Zoning Board of Review, 100 R.I. 340, 215 A.2d 418.

We have, however, passed on some aspects of the problem of the standing of one to apply for an application for an exception prescribed in an ordinance who is without right, title, or interest in the land to which an application would apply. We are not aware that any of these cases was decisive of that issue.

The respondent appears to place some reliance on the decision of this court in Dunham v. Zoning Board, 68 R.I. 88, 26 A.2d 614. In that case a public utility had applied for an exception that would permit the erection of new plant facilities on land not owned by it but with respect to which it held an option to purchase. However, the record...