*1 Motion denied. F, Factor, Sheehan, plaintiffs.

John Alfred J. Mc- Ward, Novogroski, Charles McGovern & Coffey, Govern, for defendant. Review of vs.

Michael Chirico City of Warwick. 2, 1964.

JUNE Joslin, J., Roberts, Condon, JJ. Powers C. Present: for certiorari review petition C. This is a J. Condon, city zoning board of Warwick the action petitioner’s application denying provisions section pursuant compliance and in there- the writ We issued 14.2.3 thereof. *2 the with board has made due return of the and all records in papers pertaining proceedings to its the matter. petitioner owner lot 44 on plat is the of assessor’s westerly situated on the side of Warwick in the city avenue He gasoline of Warwick. desires to the lot for a use service in light station addition to the sale of re- where, gasoline, pair performed. Although work the lot heavy not therein commercial district such a use is allowed express without the the board. Under permission special exceptions sec. 14.2.3 the board is authorized to make the of the to terms ordinance “where the is rea- sonably necessary for the convenience and welfare of the public.”

At hearing the before the board the applicant testified of his lot support petition irregular shape the was and for that reason he had been to anyone unable interest it. It purchasing appeared also testimony his Texaco willing buy was the lot for gasoline station and possible only it was the purchaser except person that one wanted it a “hamburger place” for but also wanted put up tioner to a building.

A petitioner’s realtor testified in behalf the effect that he had the for property listed period years sale two and had any person been unable interest other to pur- subject chase it uses under the ordinance. In the realtor “highest the and best use” of lot would be a station and that the one which proposed Texaco to build not would neighboring devaluate on property but would enhance its value and greatly improve the area. surrounding On the basis testimony petitioner’s attorney argued that to> deny ap- plication deprive petitioner would be to “of the most bene- objectors ficial use” of the lot. There were no at the hear- but the ing board reserved decision to make a further in- vestigation of the premises.

Thereafter the board filed a decision wherein it stated After exception. weighing denying

several reasons knowledge own of the testimony and relying upon gas lot located and of number sta- area where the miles, of 2.3 within a distance tions Warwick avenue an- prove was insufficient to the evidence concluded necessary for the convenience welfare other station was site conditions there unusual public; were no ideally many suited for uses lot involved; and that It further found heavy in a commercial district. exception would result de- requested denial of full use of his and beneficial priving the applicant *3 permitted heavy those other uses there were land since commercial district. of those reasons

The contends that none is suf- petitioner the With refer- application. denial his justify ficient to argues he that reason, to above-mentioned ence the first gasoline of other stations within the existence of a number force on lot is without the issue vicinity the his of another would be of whether allowance the to-the public. welfare of the As second the convenience and duty he no that that had to show reason, he contends such for and welfare the convenience exception the duty board’s to show that that it public, but was sup- based on evidence exception was denying the finding its ground. portive of that accuracy third reason challenges the petitioner copy plat a mere reference to the claims that “that there are or conclusively might demonstrates

map shape conditions” involved unusual site some out points testimony he In this connection lot. prospective purchas- to interest it impossible shows that irregular shape. As to fourth because of the lot ers may well be true that the lot is reason, he concedes in the but permitted district,- of the uses many for suitable years unsuccessfully for two trying that after argues he purchaser find a should this be deemed reasonable basis from granting exception an the ordinance. petitioner’s We have set out length contentions at some because it would statement appear their mere petitioner misconception resting upon has of the obligation applicant exception for an under sec. 14.2.3. That sec tion “In board, appropriate authorizes cases and subject to appropriate safeguards conditions and to make special exceptions to the terms of where the reasonably necessary for the convenience and presented welfare of the Whether public.” the case by the application appropriate is an one and whether the exception necessarily will serve convenience and welfare are matters which applicant prove must satisfaction of the board. This he has not done.

There no petitioner’s evidence the record that lot is for the reasonably suited uses a heavy com- mercial irregular district. shape Its not been shown to be an obstacle adaptability to its uses. Nor do»we any find tends to prove the need for another station the area. The fact *4 tioner has been after years persistent unable two of effort subject to sell the lot to the does not justify uses grant the of an therefrom exception to enable him to con- a only prospect summate sale to the he found willing purchase provided to the lot could for be used station.

He something must than to do more entitle him to existing relief from the zoning restrictions. He must show exception reasonably that “the for necessary is the conven- public.” ience and the welfare of In our the presented possessed evidence tioner no of such effect and the board therefore did not abuse its discretion denying application competent his lack of ' ' support to it.

248

The petition dismissed, for certiorari and the denied writ and quashed, heretofore issued is the and pa- records pers certified to are ordered sent back the board with our decision endorsed thereon. J., dissenting. under our enabling

Roberts, When act a legislature zoning local enacts a provides ordinance and exceptions prior therein for and requires to its terms granting finding thereof make a as to if exceptions, granted, whether such would serve the welfare making finding of such public, convenience competent legally virtually on the basis of evidence is to precedent condition an exercise board of its au- thority exceptions. Zoning Hazen Board to make v. Review, I. In 90 R. 108. v. Monforte of Review, R. 729, I. A.2d 447, 726, 176 this court said that provision ordinance when under such an finds “that a board not exception substantially would grant proposed the board with- welfare, serve convenience and application on authority affirmatively out to act exception.” prece>- condition follow, however, It not that such a does can be established only of an dent competent legally evidence that by showing the basis needs or desires of personal or further the some supply it will community. In group of individuals individual or R. Zoning Board I. Realty Corp. v. Center clearly that the en- 350, this court stated 347, 189 A.2d contemplate exceptions to the abling act does not terms granted on the indi- basis of a are exceptions “it intended that rather needs but vidual par- it was shown that relieve a made where existing restric- from the burden of of land parcel ticular adversely affect would thereon placed tions *5 zoning enactments.” validity to give that interests that posits my conviction stated that we therein view zoning ordinance otherwise of provision construe jurisdiction would raise a question serious as board to act at all the premises. provided

A zoning way use of an exception is in use for its nature a the local which legislature may provide in order that “the public interests adjusted might and those of an owner fairly of land bei with- general out undue Buckmins- disturbance to the welfare.” Review, ter v. I. 401. In 69 R. of recognized case this court exception that the a device that permits the of on particular par- alleviation use restrictions land reasonably cels of that are not related to public in- police terests that warrant power the exercise of the under which such It imposed. were is clear that of the reduction degree the restriction imposed thus one lesser should also valid constitute a exercise of the police power, and such adjustment should be clearly made unless it shown con- trary public upon to those interests which police power is based. Realty Corp.

In Center v. Zoning Board su- pra, this court exceptions took the set view out in a zoning ordinance are intended to inure primarily to benefit of the owner of the burdened land and that ben- inuring efits therefrom to the are generally only grant consequence In exception.

we our stated “that an applicant conclusion when for an exception compliance establishes with the prece- conditions dent, particular shown that the granting of the exception would have results that would be interests, exception by a denial of such constitutes an discretion abuse vested therein.”

I perceive departing no reason for from our prior conclu- sion provided that where the for in a showing ordinance is conditioned it will reasonably or welfare substantially serve the and conven- will public, proof ience of the the absence of serve or exigencies convenience or desires individuals

250 finding by community preclude does been es- has precedent with the condition compliance that applicant where the true particularly tablished. This is use proposed that prove tending adduced evidence contrary to not be exception will way of for in such circumstances welfare, safety, or health, morals, purpose may granted be it that the is clear reasonably the land imposed on making the restriction it which power by the police exercise of with an consistent imposed. was only on in this case adduced was

Testimonial evidence neigh- that He himself testified applicant. behalf of the substan- is devoted land located in which the borhood unsuccessfully he had and that tially uses, to commercial for uses purchasers potential sought to sell A his'be- testifying zone. realtor heavy in a commercial character; that the area commercial half was stated not devalue sur- station would operation gasoline of a would enhance opinion, in his rounding property but, or increased traffic create generate that it would not' values; would result proposed use hazards; traffic and No remonstrants improved sidewalks: lighting and (cid:127)better or to contradict evidence was adduced appeared, and no behalf. petitioner’s supplied impeach testimony thus credibility; weight and question simply here one Were finding. the board’s would not disturb court,’ of course, this in the whether there is however, is question raised, finding of the board supporting the any record precedent not established as condition petitioner had exception would not validity. The record from which derives interests premises inspection the board made discloses gasoline of other stations operation aware Corp. v. Realty Center In along Warwick avenue. A.2d we at 671, R. I. 194 said showing then that evidence our “It page 673: -being-operated the vi that other stations are proposed is without force on cinity of the station *7 if exception, granted, the issue whether public.’’ to the convenience and welfare of the Zimarino Reasonably competent evidence, we noted -as Zoning Board v. R. I. A.2d 383, 259, 261, 95 187 “any incompetent is evidence that by being reason of devoid of force as to the pertinent issues.” Conceding knowledge by a board acquired of review during ah inspection legally competent constitutes may súpport findings, which it will not given by status this court unless récord what discloses acted-upon. presume observed and We"will-'not it acted on evidence of this character absent some disclo thereof in in Kelly sure the record. We'said v. Review, 94 A.2d 319, 322: “To sustain a R. I.

decision on basis of the acting knowledge the. board’s on ac quired by inspection, the record must contain some reason able disclosure as to knowledge acquired so and their action pursuant thereto.” There is this record no such -I disclosure, and am constrained to conclude that the find ing of the board -petitioner here failed to establish the condition precedent to a not sup ported by legally evidence. competent position I here take is not to- be understood im- as on posing a board of review the burden of proving the facts upon which it roaches decisions. What I rely here is simply the settled rule that the findings or decisions of such boards of review must rest u-pon reasonably competent evi- dence disclosed in the record. Where such evidence is to flow from the presumption that inspections attaches to these boards or -presumed from their expertise- in the admin- istration of zoning ordinances, record must -the disclose character of the observations or the conclusions which it derives. The absence of such disclosure the record here persuades me that the decision of the board constituted an Re Zoning Board Denelle v. See

abuse of its discretion. view, I. 89 R. 456. Tiernan, Beals, G. Chandler &

Gallogly, Beals tioner. Haronian, R. Morriss, Howard Solicitor, Oity R.

James respondent. City Solicitor, Assistant Jimmy’s Pizzaria vs. Politelli d.b.a. Vincent et al. Domenic Gianfrancesco 3, 1964. JUNE Joslin, J., Roberts, Condon, JJ. Powers and C. Present: *8 in equity complain- J. This a bill wherein the Roberts, alleged agreement prays specific ant performance