Saini v. Zoning Bd. of Review of City of Warwick

• Decision Date: 15 February 1965
• Docket Number: No. 1645,1645
• Citation: 207 A.2d 47,99 R.I. 269
• Parties: Romeo SAINI et ux. v. ZONING BOARD OF REVIEW OF the CITY OF WARWICK. M. P.
• Court: Rhode Island Supreme Court

Page 47

207 A.2d 47

99 R.I. 269

Romeo SAINI et ux. v. ZONING BOARD OF REVIEW OF the CITY OF WARWICK.

M. P. No. 1645.

Supreme Court of Rhode Island.

Feb. 15, 1965.

Donald P. Ryan, Frank W. Storti, Providence, for petitioners.

James R. Morriss, City Sol. of City of Warwick, Howard R. Haronian, Asst. City Sol., for respondent.

ROBERTS, Justice.

This petition for certiorari was brought to review a decision of the zoning board of review of the city of Warwick denying an application for an exception or variance permitting the applicants to erect a commercial building on a lot located on Warwick avenue in that city presently zoned in part for residential use and in part for general business use. The writ issued, and pursuant thereto the respondent board has certified the pertinent records to this court.

It appears therefrom that the applicants are the owners of lot 123 on assessor's plat 290 which, being irregular in shape, has a frontage on Warwick avenue of 50 feet and extends easterly for a distance of about 160 feet to Aborn street, having a frontage of 80 feet on the latter highway. The record discloses further that the portion of the lot that abuts on Warwick avenue is zoned for general business use but that the easterly portion thereof, which contains more than half of the total area, is zoned for residential uses. It further appears that a dwelling house is located on the portion of the lot zoned for business use and that no structure is located on the portion zoned for residential use.

The applicants allege that the dwelling house has deteriorated to a degree that would warrant its being razed and seek permission by way of a variance or an exception to erect a commercial building on the portion of the lot zoned for residential uses. The proposed building would house three retail shops or stores, and the portion of the lot zoned for business, which abuts on Warwick avenue, would be used for off-street parking facilities. It is stated in the application that the division of the lot by the terms of the ordinance into two inconsistent use districts results in unnecessary hardship and warrants the grant of a variance. An exception is also sought by specific reference to sec. 14.2.4.2 of the ordinance which authorizes the grant of an exception for the 'extension of a building or use into a more restricted district immediately adjacent thereto.'

The board conducted a hearing on the application on May 26, 1964, in the course of which testimony was addused in behalf of the applicants, which included the testimony of a real estate expert. Testimony was also received from objectors to the granting of either a variance or an exception. The record does not disclose that the board made an inspection of the premises or that, in denying the application, they acted pursuant to knowledge which they might have concerning the premises in question. Immediately following the hearing the board denied the application by enacting a resolution, which reads in pertinent part: 'Whereas the Board feels that to grant this petition would be an encroachment into the residential area and would be contrary to the spirit of the ordinance, and Whereas the Board feels this would not be for the convenience and welfare of the general public; therefore, be it resolved that this petition be denied on those grounds.'

We are persuaded after an examination of the board's decision that the variance in this case was denied for the same reason that the variance was denied in the recent case of Kraemer v. Zoning Board of Review, R.I., 201 A.2d 643. The board in that case denied an application on the ground that 'it would not be in keeping with the spirit of the ordinance to allow a general business use in a Limited...