Sweck v. Zoning Bd. of Review of North Kingstown
| Decision Date | 06 April 1950 |
| Docket Number | No. 939,939 |
| Citation | 72 A.2d 679,77 R.I. 8 |
| Parties | SWECK et ux. v. ZONING BOARD OF REVIEW OF NORTH KINGSTOWN. M. P. |
| Court | Rhode Island Supreme Court |
Thomas J. Barry, Boston, Mass., William H. Leslie, Jr., Wakefield, for petitioners.
James H. Donnelly, Town Solicitor, Providence, for respondent.
This is a petition for certiorari praying for a review and reversal of the decision of the respondent board denying petitioners' application for a variance under the zoning ordinance of the town of North Kingstown. Pursuant to the writ the pertinent records have been certified by the board to this court.
The following facts appear therein. In 1938 the petitioners became the owners of an old dilapidated house on Ferry Road in Saunderstown in the town of North Kingstown. Nothing was done with that property until October, 1948 when the petitioners applied for and obtained a permit from the building inspector to rebuild the house 'on original foundation, 22' X 58'' for a 'Residence.' Acting under such permit they tore the house down and began to erect an entirely new one.
According to the zoning ordinance of North Kingstown, which was adopted July 28, 1947, petitioners' premises were then in an AA zone where a two-family dwelling was prohibited. When work on the building had reached a certain point, residents of the neighborhood complained to the building inspector, through the town solicitor, that apparently the petitioners were erecting a two-family dwelling. Upon ascertaining that such was petitioners' intent and purpose, the inspector ordered them to stop all further construction, after the building was closed in to protect it from the weather, until they had applied for and received permission from the zoning board to erect such a dwelling. Thereafter on May 10, 1949 petitioners filed an application with the board requesting a variance from the ordinance to erect a two-family dwelling, alleging as grounds for such request that they purchased the property with the understanding that the premises 'could be used for two family purposes' and that if they were restricted to a one-family dwelling it would be unfair to them as they would not be protected in their investment.
At the hearing before the board on June 27, 1949 the petitioners and objectors were represented by counsel. Over fifty property owners in that area opposed the granting of the application either by personal appearance or by remonstrances in writing to the board, while the petitioners alone appeared in support thereof. The latter's claim that prior to their purchase of the premises in 1938 the house had been used as a two-family dwelling was the subject of conflicting testimony. The record further shows, without denial by the petitioners, that the new building was not located on the 'original foundation' as the building permit prescribed, but that the foundation thereof had been considerably extended, at least on one side.
The board denied petitioners' application on the grounds among others that from the board's own knowledge the grant of the variance was unsuitable to the character of the district and would depreciate the value of other property; that in securing the building permit the petitioners had failed to inform the building inspector that they intended to construct a two-family house; that the foundation for the new construction had been changed by them without authority; that 'the Board was convinced on the testimony that the house had not been used--at least in the past twenty years--as a two-family dwelling'; and that, all circumstances considered, the petitioners had not shown hardship if they were made to comply with the requirements of the zoning ordinance.
Petitioners' fundamental argument before us is that the zoning ordinance was invalid because of alleged deficient notice and advertisement before its adoption. This point...
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