Staller v. Cranston Zoning Bd. of Review, No. 1711

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: JOSLIN; PAOLINO; CONDON, C. J., and POWERS
• Citation: 100 R.I. 340,215 A.2d 418
• Parties: Morris STALLER et al. v. CRANSTON ZONING BOARD OF REVIEW. M. P.
• Decision Date: 27 December 1965
• Docket Number: No. 1711

Page 418

215 A.2d 418 100 R.I. 340 Morris STALLER et al.
v.
CRANSTON ZONING BOARD OF REVIEW. M. P. No. 1711. Supreme Court of Rhode Island. Dec. 27, 1965.

[100 R.I. 345] Robinson & Mascia, Shayle Robinson, Joel Robinson, Providence, for petitioners.

Jeremiah A. Jeremiah, Jr., First Asst. City Sol., for respondent.

[100 R.I. 340]

Page 419

JOSLIN, Justice.

This is a petition for a writ of certiorari to review a decision of the zoning board of review of the city of Cranston granting Benjee Realty Inc., hereinafter referred to as Benjee, permission to use a 335,000 square-foot tract of land located in a Dwelling C zone for the construction of a thirty-two unit apartment building. The writ issued and the pertinent records have been certified to this court.

Before proceeding either to the fact or the merits, we first dispose of some of the procedural aspects of the case. [100 R.I. 341] The applicants, Benjee and Antonio Meschino, stated on the printed form of application provided by the board that they relied for relief on sections 27B and 27C of the zoning ordinance. There is, however, no section 27C and section 27B concerns the office of the deputy or assistant to the inspector of buildings. The applicants undoubtedly intended to rely on sec. 30-28, paragraphs (b) and (c), of the ordinance and their error in designation probably stemmed from an unawareness that some of the sections of the zoning ordinance have recently been renumbered by the city council. See Cranston City Code 1964. The mistake went to form rather than substance and did not prejudice petitioners. Taft v. Zoning Board of Review, 76 R.I. 443, 71 A.2d 886. In the circumstances, we consider the application as if the section relied on were 30-28, paragraphs (b) and (c).

An additional difficulty suggested by petitioners is that the board in its decision referred only to the corporate and not to the individual applicant. Because of the view we take of the case, we disregard that defect, if indeed it be one, and consider the decision as if the board had in fact granted the requested permission to both applicants.

The final procedural problem arises because the board granted both an exception and a variance. Although recently in Titus v. Zoning Board of Review, R.I., 206 A.2d 630, we indicated doubt as to the validity of that practice, we will nonetheless, without intending thereby to recede from the view expressed in Titus, pass on both asspects of the decision.

We turn now to the merits. The applicants are the owners of separate but adjoining parcels of real estate which if considered as a single tract has an area of approximately 12 acres. They jointly applied for a variance or exception for the southeasterly 335,000 square feet of their combined real estate holdings and hereinafter any reference to their holdings or land will be to the smaller parcel. The front portion of their land abuts on Pontiac avenue and is owned by Benjee[100 R.I. 342] and title to the rear part, which has no direct access to a public highway, is in Meschino and his wife. Neither applicant has any right, title or interest in the land of the other. And the evidence as to whether Meschino's stock interest in Benjee, and it is doubtful whether he has any, is so self-contradictory, indefinite and inconclusive as to preclude a finding that the two applicants in fact constitute but a single interest.

The petitioners, who are the owners and occupants of a residence in the neighborhood and one of whom appeared as a...