Titus v. Zoning Bd. of Review of City of East Providence

• Decision Date: 04 February 1965
• Docket Number: No. 1628,1628
• Citation: 99 R.I. 211,206 A.2d 630
• Parties: Frank E. TITUS, Jr., et al. v. ZONING SOARD OF REVIEW OF the CITY OF EAST PROVIDENCE. M. P.
• Court: Rhode Island Supreme Court

Page 630

206 A.2d 630

99 R.I. 211

Frank E. TITUS, Jr., et al. v. ZONING SOARD OF REVIEW OF the CITY OF EAST PROVIDENCE.

M. P. No. 1628.

Supreme Court of Rhode Island.

Feb. 4, 1965.

John P. Bourcier, Providence, for petitioners.

Sarkis Tatarian, City Sol., Joseph T. Little, Asst. City Sol., for respondent.

DelSesto & DelSesto, Christopher T. DelSesto, Jr., Providence, for applicant.

POWERS, Justice.

This is a petition for certiorari to review and quash the action of the respondent board in granting both an exception and a variance so as to permit the erection of a gasoline service station in a residential A district. In compliance with the writ the board duly certified the pertinent papers to this court.

It appears therefrom that sometime in January 1964, Patt East, Inc., a Rhode Island corporation, hereinafter referred to as the applicant, purchased a tract of land on the west side of Newport avenue in the city of East Providence. The land consists of three parcels laid out and delineated as lots numbered 555, 556, and 557 on assessor's plat 40. They have an aggregate area of 27,905 square feet and are bounded on the north by Roger Williams avenue, on the south by Vista Drive, and on the east by Newport avenue along which lots 555 and 557 have a frontage of approximately 197 feet.

It further appears that on February 10, 1964, the applicant applied for a variance pursuant to G.L.1956, § 45-24-19, and for an exception pursuant to secs. 32-3, 32-5, 32-7, 32-16 and 32-20 of the revised city ordinances. It claimed that the land had been vacant for many years and could not be used for any of the uses permitted in a residential A zone due to the commercial character of the surrounding neighborhood on Newport avenue and the high volume of traffic.

It should be noted that the property was included in a tract of land developed in 1955 by Alphage Ferland & Sons, Inc. as a residential development and designated 'Rumford Terrace.' A plat bearing such designation was accepted by the city and so recorded. However, the three lots in question were sold to the Assembly of God Church of Providence in May 1955 for the construction of a church, in connection with which a small parking lot was to be provided.

Thereafter the property was found to be unsuited for such purpose and Tidewater Oil Company negotiated to buy it if an exception or variance were obtained so as to permit the erection of a gasoline service station. An application made therefor was denied by the zoning board, and in affirming that decision this court found 'that the area in reality as well as in name was residential; that public welfare and convenience did not require the invasion of a residential area by a business or commercial use; and that there was genuine resistance to such invasion for reasons of health.' Assembly of God Church v. Zoning Board of Review, 91 R.I. 259, 264, 162 A.2d 554, 556.

The denial by the board in that instance is one of the grounds relied on by the instant petitioners in support of their appeal and will be considered infra.

Further, seasonable notice of the pendency of the instant application and of a hearing to be held thereon was published in the Providence Journal on February 13, 1964 and written notice was sent to all of the property owners entitled thereto. All such notices, as well as that given by publication, were signed by 'Kenneth S. Wilder, Zoning Clerk.' The petitioners contend that they were defective in that the city ordinance requires notice to be given by the building inspector. Their reasoning in this regard will likewise be considered at a more appropriate juncture.

It appears from the transcript of the hearing held February 24, 1964, that testimony was taken in behalf of and in opposition to the application and documentary evidence offered by the applicant received, as was a written petition bearing the signatures of seventy-seven remonstrants.

Robert H. Eder, president of the Rhode Island Oil Company, testified in favor of the application that his company intended to build a four-tank, three-bay, left-hand, canopied type station. The building would be constructed of smooth-finished, painted cinder blocks, and in conformity to minute specifications, a set of which was placed in the record for consideration by the board.

He testified: 'People do not go out of their way to go to a service station. They go to a station that is convenient. With this traffic here, with the removal of some of the transient traffic which now goes along Newport Avenue, when interstate 195 is completed the traffic flow along Newport Avenue will still increase year by year, but will be an orderly increase. With this type of traffic, and the type cars that go by, this station, in my opinion, is necessary along Newport Avenue.'

It was also his testimony that the service station in and of itself would not increase traffic along Newport avenue, but rather that service stations survive on the traffic which passes a given site for various reasons. During the course of his testimony a letter was introduced from Philip S. Mancini, the state traffic engineer, showing a steady increase in daily traffic from 14,700 in 1957 to 18,500 in 1963. Additionally, the plat plan introduced in connection with Mr. Eder's testimony disclosed that the state traffic engineer, in whom jurisdiction is vested, had authorized two curb cuts of thirty feet each in the curb along Newport avenue.

James C. Raleigh, a real estate expert with some sixteen years' experience, including work for the city of East Providence, a witness for the applicant, testified that he was familiar with real estate values in the area and, reviewing all of the uses permitted in a residential zone, that the land could not be devoted to any of such uses. This opinion was based on evidence to the effect that applicant had paid $36,000 for the land in question. Mr. Raleigh negated adaptability of the property to permitted uses on the ground that those other than residential were not realistically feasible considering the limited size of the property and that a residential use was out of the question because market values of neighboring residences were incompatible with a land value of $36,000. He illustrated this latter testimony by referring to a sale in 1962 for $13,500 of a nearby residence located on a 5,034-square-foot lot.

He testified that the building of the proposed station would not impair the value of neighboring property and gave concrete examples therefor.

A map prepared by him was introduced as an exhibit designed to point up the commercial character of the immediate area. It shows that the westerly side of Newport avenue, on which the property is located, is zoned business C north of Roger Williams avenue, as is the westerly side beginning at a point 700 feet south of Vista Drive. On the easterly side of Newport avenue, the area is zoned business C from a point 169 feet south of Vista Drive northerly to the city line, some 3,000 feet. Immediately across from the property are Scott Motors constructed in 1960 and Newport Motors constructed in 1961. Another commercial enterprise located on the easterly side of Newport avenue but constructed since 1957 is Burger Chef, a drive-in restaurant, just south of Vista Drive.

Added to the record by the applicant was a letter from William B. Collins, divisional manager of the New England Fire Insurance Rating Association. It stated that the construction of the proposed service station would have no effect on fire insurance rates applicable to surrounding property.

The petitioner Frank E. Titus, Jr., testified that there was no need for an additional service station at the proposed site; that it would constitute a traffic hazard; that a number of children live in the neighborhood; that noise, odor and flashing lights would constitute a nuisance; and that it would decrease the value of homes in the neighborhood.

His objections and reasons therefor were echoed by several other remonstrants. Among them was a resident whose property is located on the southwesterly corner of Newport avenue and...