Smith v. Zoning Bd. of Review of Town of Westerly

• Decision Date: 09 April 1973
• Docket Number: No. 1726-M,1726-M
• Citation: 111 R.I. 359,302 A.2d 776
• Parties: Isaac G. SMITH, Jr., et ux. v. The ZONING BOARD OF REVIEW OF the TOWN OF WESTERLY et al. P.
• Court: Rhode Island Supreme Court

Page 776

302 A.2d 776

111 R.I. 359

Isaac G. SMITH, Jr., et ux. v. The ZONING BOARD OF REVIEW OF the TOWN OF WESTERLY et al.

No. 1726-M.P.

Supreme Court of Rhode Island.

April 9, 1973.

Thornton, Thornton & Naccarato, James D. Thornton, Vincent J. Naccarato, Westerly, for plaintiffs-respondents.

Thomas J. Capalbo, Westerly, for petitioners, P. Edward Capalbo and Gemma A. Capalbo.

OPINION

PAOLINO, Justice.

This is a petition for certiorari requesting this court to review a Superior Court judgment reversing a decision of the Westerly Zoning Board of Review which upheld the issuance of a building permit for a shopping center on certain land owned by the petitioners. ¹

Before reciting the travel of this case we believe it will be helpful to describe the land which is the subject matter of this cause. The petitioners, P. Edward Capalbo and his wife Gemma A. Capalbo, are the owners of certain real estate in the town of Westerly designated as lots 1, 2, 29 and 30 on a map entitled 'Map of Building Lots formerly belonging to the Orlando Smith Est. now belonging to Edward W. Smith, surveyed and drawn by G. t. Lanphear, C.E. 1873, revised 1950.' All of the lots are adjacent and contiguous to each other and abut each other. They form a large tract of land bounded on the west by Granite Street, on the north by Cross Street, on the east by Longvue Avenue and on the south of lots 29 and 30 by property owned by Isaac G. Smith, Jr. and Gertrude Smith, hereinafter referred to as the remonstrants in this action.

The petitioners acquired these lots in four separate transactions from June, 1963 to January, 1970, subsequent to the passage of the Westerly zoning ordinance, ch. 266, passed July 19, 1962 and entitled: 'An Ordinance in Amendment of Chapter 22, entitled 'Zoning' as amended.' These lots are shown as separate lots on the Smith plat and on the tax assessor's plat of Westerly. They were assessed separately and taxed separately.

Lots 1 and 2 are located in a B-2 district, a business zone. Lot 29 is entirely in an R-2 residential district.

Lot 30 is a split lot, a portion of it being in the B-2 district and another portion in the R-2 district. The district boundary line shown on the official zoning map is situated a distance of 75 feet westerly from the westerly boundary line of Longvue Avenue, and runs southerly from Cross Street a distance that is in dispute between the parties. This district boundary line divides the B-2 district and the R-2 district and is situated 5 feet westerly of the boundary line between lots 29 and 30, and lies in lot 30.

Isaac G. Smith, Jr. and Gertrude Smith, the remonstrants, own land adjacent to petitioners' lots 29 and 30. This property comprises lots 31 and 32 on the Smith plat.

The travel of the case is as follows. On August 6, 1971, Dr. P. Edward Capalbo filed an application with the Westerly building inspector for a permit to build a shopping center on the land described above according to plans submitted with the application. The application describes the street location as 'Granite & Cross Streets' and the plat and lot numbers as 'Map of Orlando Smith Est. Lot No(s). 1, 2, 29 & 30.'

On August 12, 1971, a building permit, signed by the Westerly building inspector and approved by the zoning inspector, was issued to P. Edward Capalbo authorizing the erection of a shopping center on 'Lot No(s). 1-2-29 & 30' on the Smith plat. The permit provided that the building operations were to be done in accordance with the application on file in the building inspector's office and subject to all the provisions of the building ordinances of the town of Westerly.

On August 20, 1971, the remonstrants appealed the decision of the building inspector to the Westerly zoning board of review. The board held a hearing thereon, and thereafter, on November 17, 1971, filed a decision upholding the grant of the building permit, but provided that there be no exits or entrances on Longvue Avenue. The board made the following finding of facts:

'1. The official zoning map of the Town of Westerly is that map on file in the office of the Town Clerk in said Westerly.

'2. That the decision of the Zoning Inspector was based in part on a purported copy of said official map which said copy in fact differs in dimension from the official zoning map.

'3. That P. Edward Capalbo and Gemma A. Capalbo are the owners of said lots 1, 2, 30 and 29, having acquired each lot in separate transactions from January 10, 1966 thru on or about January 15, 1970.

'4. That said lots 1 and 2 lie totally in a B-2 zoning district.

'5. The B-2 zone extends into Lot 30 a distance of 62 feet-the remaining portion of said lot 30 lies in an R-2 zoning district a distance of 13 feet.

'6. Said Lot 29 lies totally in an R-2 zoning district.

'7. That no testimony was presented at the hearing by appellants that they were the persons aggrieved and thus entitled to take an appeal.

'8. That a shopping center is not a permitted use in an R-2 zone.'

On the basis of such findings the board held that, under ch. 266, sec. IX of the Zoning Ordinance of the Town of Westerly, petitioners '* * * may extend for fifty (50) feet and use said 50-foot extension as B-2 property from the easterly termination of the B-2 zone.'

The board based its decision on the following provision in sec. IX of ch. 266 which reads:

'Where a lot lies in more than one district, the regulation of either district shall apply, except that, uses permitted in one district may not extend more than 50 feet into the other district.'

On November 19, 1971, remonstrants appealed to the Superior Court for Washington County by filing a complaint in accordance with the provisions of G.L.1956 (1970 Reenactment) § 45-24-20. In their reasons of appeal they challenge the legality of the board's decision on numerous grounds, including the following: the decision is in violation of the provisions of the Westerly zoning ordinance, ch. 266, as amended, and in excess of the authority granted to the board by the ordinance; the finding of fact that remonstrants were not aggrieved persons in light of the evidence was an error of law; the decision was arbitrary and capricious; the board failed to properly apply the provisions of sec. IX of ch. 266; and the board failed to take into account the evidence from the official zoning map that the B-2 zoning district extends southerly from Cross Street in lot 30 only a distance of 75 feet.

In their prayers for relief remonstrants did not seek a total revocation of the permit granted nor a complete reversal of the board's action. They merely prayed for relief from those parts of the decision which they claimed were unlawful. They did not object to the board's decision with regard to the exits and entrances on Longvue Avenue. They sought the following specific relief, namely, that the permit as to that portion of the building, off-street parking and use in violation of the zoning ordinance be revoked; that petitioners be ordered to remove from the premises that portion of any structure or improvement on said premises in violation of the ordinance; ² and that pending the Superior Court hearing and adjudication, petitioners be enjoined from proceeding with any further construction and use for business purposes on any portion of lots 29 and 30.

The case was heard before a justice of the Superior Court. The record consists of numerous exhibits and the testimony of several witnesses who were called by the opposing parties. It appears from the record that the shopping center has been substantially completed, that a part of the building is on lot 30, and that parking spaces for motor vehicles are set up on various parts of the premises, including lots 29 and 30. The evidence is both confusing and conflicting. There is a conflict in the evidence as to how far southerly from Cross Street the district boundary line dividing the B-2 district and the R-2 district runs. There is also a dispute as to whether the land in question is one lot or four separate lots. Additionally, there is a dispute as to whether sec. IX of ch. 266 and sec. 21 of ch. 22 are applicable here.

After the hearing the trial justice filed a written decision reversing the decision of the board. Relying on our opinion in D'Almeida v. Sheldon Realty Co., 105 R.I. 317, 252 A.2d 23 (1969), she held that remonstrants were persons aggrieved within the contemplation of § 45-24-20 and therefore entitled to file an appeal in the Superior Court. After discussing her duties under § 45-24-20, she reviewed the record before the board, including its decision, and she also reviewed the exhibits and testimony presented in the Superior Court.

With respect to the district boundary line which divided the B-2 and R-2 districts she observed that an examination of the official zoning map clearly shows that it commences 75 feet west of Longvue Avenue. This fact is not in dispute. Then, relying on the testimony of Clarence K. Dion, who was called as a witness by remonstrants, the trial justice found that the district boundary line proceeds southerly from Cross Street for 80 feet, then proceeds west for 75 feet, and then goes southerly for a distance not material here. She noted that Mr. Dion is a registered engineer and that he drew the official zoning map of the town of Westerly.

The trial justice next discussed the split-lot provision in sec. IX of ch. 266 of the Westerly zoning ordinance. It was apparent to her, she said, that the board treated the land in question as four separate parcels. However, since petitioners argued in the hearing before her that the land in question was, in fact, one large parcel, she said she would treat both propositions even though she considered the land in question as four separate lots.

In considering the land as one parcel, the trial justice said:

'If the land is treated as one parcel, the building starts west of the boundary line in a business district and extends easterly...