Staller v. Cranston Zoning Bd. of Review, 1711

Citation100 R.I. 340,215 A.2d 418
Decision Date27 December 1965
Docket NumberNo. 1711,1711
PartiesMorris STALLER et al. v. CRANSTON ZONING BOARD OF REVIEW. M. P.
CourtRhode Island Supreme Court

Robinson & Mascia, Shayle Robinson, Joel Robinson, Providence, for petitioners.

Jeremiah A. Jeremiah, Jr., First Asst. City Sol., for respondent. 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. 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 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 remonstrant at the hearing before the board, first contend that the applicants were without legal standing to apply for an exception or a variance for the reason that neither had any right, title or interest in all of the land to which the application related. They rely on Tripp v. Zoning Board of Review, 84 R.I. 262, 123 A.2d 144, where we held that a person without any incident of ownership in a parcel of land cannot be deprived of its beneficial use. Tripp followed Dimitri v. Zoning Board of Review, 61 R.I. 325, 200 A. 963, and has since been followed in Parise v. Zoning Board of Review, 92 R.I. 338, 168 A.2d 476, and Cranston Jewish Center v. Zoning Board of Review, 93 R.I. 364, 175 A.2d 296.

In our judgment the contention is sound at least as it relates to a variance. Because the propriety of the grant of an exception can be determined on another ground, we refrain from expressing any view as to whether the applicants had standing to seek that kind of relief. 1 Here we have a large tract of land, a portion of which is owned by one applicant and the remainder by the other. There is evidence, to be sure, that the costs of developing the combined parcels are so prohibitive as to have the practical effect of removing the land from the market for residential purposes. There is nothing, however, in the record establishing that each applicant would be deprived of all beneficial use of his or its individual holding if restricted to developing it for residential purposes.

With the record in this state, for us to uphold the board would be to indulge in the anomaly of permitting Benjee, which by hypothesis has not established entitlement to a variance for its separate tract, to obtain...

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  • Ray Reedy, Inc. v. Town of North Kingstown
    • United States
    • Superior Court of Rhode Island
    • June 8, 2009
    ...result in an incongruous use of the property with the surrounding neighborhood. See, e.g., Staller v. Cranston Zoning Board of Review, 100 R.I. 340, 340, 215 A.2d 418, 418 (1965) (abuse of discretion for zoning board to approve a special use permit to site a thirty-two unit apartment buildi......
  • Ray Reedy, Inc. v. Town of North Kingstown, C. A. WC 2007-0664
    • United States
    • Superior Court of Rhode Island
    • June 8, 2009
    ...result in an incongruous use of the property with the surrounding neighborhood. See, e.g., Staller v. Cranston Zoning Board of Review, 100 R.I. 340, 340, 215 A.2d 418, 418 (1965) (abuse of discretion for zoning board to approve a special use permit to site a thirty-two unit apartment buildi......
  • Ray Reedy, Inc. v. Town of North Kingstown
    • United States
    • Superior Court of Rhode Island
    • June 8, 2009
    ...result in an incongruous use of the property with the surrounding neighborhood. See, e.g., Staller v. Cranston Zoning Board of Review, 100 R.I. 340, 340, 215 A.2d 418, 418 (1965) (abuse of discretion for zoning board to approve a special use permit to site a thirty-two unit apartment buildi......
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    • June 8, 2009
    ...... Kingstown Zoning Board of Review (the "Board"),. which denied the ... (quoting Cranston Print Works Co. v. City of. Cranston , 684 A.2d 689, ... neighborhood. See , e.g. , Staller v. Cranston Zoning Board of Review , 100 R.I. 340, ......
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