Taft v. Zoning Bd. Of Review Of City Of Warwick., 911.

• Decision Date: 25 February 1949
• Docket Number: No. 911.,911.
• Parties: TAFT et al. v. ZONING BOARD OF REVIEW OF CITY OF WARWICK.
• Court: Rhode Island Supreme Court

64 A.2d 200

TAFT et al.

v.ZONING BOARD OF REVIEW OF CITY OF WARWICK.

No. 911.

Supreme Court of Rhode Island.

Feb. 25, 1949.

Petition by Lewis A. Taft and others against the Zoning Board of Review of the City of Warwick for a writ of certiorari to review a decision of the board sustaining the granting of a building permit issued to applicant George Langford.

Petition granted, decision of board reversed and papers ordered sent back to the board.

Edmund J. Carberry, Jr., and Aram A. Arabian, both of Providence, for petitioners.

Hailes L. Palmer, City Sol., of Warwick, and Edward F. Hindle (of Edwards & Angell), of Providence, for applicant.

CAPOTOSTO, Justice.

This is a petition for a writ of certiorari directed to the zoning board of review of the city of Warwick, hereinafter called the board. The petitioners seek the review of a decision of the board sustaining the granting of a building permit issued to the applicant George Langford by the building inspector of that city, hereinafter called the inspector. The writ was issued and the board has duly certified the record in question.

By stipulation dated December 20, 1948, the parties agreed that the facts as outlined in the briefs of the respective parties are admitted. From the record of the board it appears that the petitioners and Langford are the owners of abutting premises in a class B residence district under the zoning ordinance. At the time of the adoption of that ordinance in 1945 there was on Langford's land a flat-roofed wooden building on a concrete foundation 26 feet long by 28 feet wide, which building, apparently a garage, has been used in more recent years for the storage of construction materials. On one side the front of the building is three fourths of an inch from the division line between the two properties and the rear thereof is three feet from that line. Langford's lot is 6091.21 square feet in area and has a frontage of 50 feet on Hollywood street.

Langford, intending to convert the building into a four-room dwelling, applied for the necessary permit to the inspector who, after examining the plans and viewing the premises, granted it on the ground that the contemplated improvements ‘would be an asset to the community.’ The plans are not part of the record before us but from a summary of the contemplated changes in respondent's brief it appears that Langford at least intended to replace the flat roof with a ‘peaked roof,’ install a ‘picture window’ in place of the doors, construct a front entrance to the building, and partition the inside thereof into four rooms.

The petitioners contend that the action of the board was arbitrary and without warrant of law on three main grounds: First, that Langford's premises as well as their own are subject to a plat restriction that no one-family house costing less than $4000 shall be built on any lot, whereas the estimated cost of Langford's house, as shown on the building permit, was $2000; secondly, that the changing of the roof on his building from a flat roof to a ‘peaked’ one would cause rain, snow and ice to be discharged upon petitioners' premises by reason of the close proximity of that building to the division line, thereby creating or tending to create a condition in the nature of a nuisance on their land; and, thirdly, that under the zoning ordinance neither the inspector nor the board had authority to grant to Langford such a permit as the one under consideration.

We note here that this is not the case of an appeal from a decision of the board on an application for an exception or variance under the zoning ordinance. In our judgment the controlling question before us is whether the building permit to Langford was lawfully issued for the purpose therein specified.

The ordinance in so far as pertinent is as follows. Section II provides: ‘No building or land shall be used and no building shall be erected or structurally altered except in conformity with the regulations herein prescribed.’ (Italics ours) Section VI applies to ‘Residence B Districts' in one of which Langford's building is located. It is prescribed in subsections (C), (D), (E) and (F) respectively of said section that each building ‘hereafter erected’ shall have a minimum lot area of 7000 square feet; a street frontage of 70 feet for each single family dwelling; a front yard not less than 25 feet; and, with certain exceptions not material here, a side yard not less than 8 feet in width along each lot line other than a front street line, side street line or rear line.

In support of the validity of the building permit the respondent urges two main contentions. First, it contends that the restrictions imposed by the above-mentioned subsections relate only to the erection of an entirely...