390 A.2d 382 | R.I. | 1978
This is a petition for certiorari to review a Superior Court judgment sustaining the action of the Board of Review of the City of Warwick (the board) in granting the application of George H. Dean, Inc.
The applicant George H. Dean, Inc. is the owner of a certain parcel of land situated at 2095 Elmwood Avenue and designated as lots numbered 469 and 673 on tax assessor’s plat No. 296. It is located in a “heavy commercial” district in which manufacturing and warehousing activities are not permitted uses.
In 1975 due to the growth of its business, the applicant
On August 21, 1975, the applicant applied to the board for an exception or variance from the use limitations of section 6.2.4 and the setback reqirements of sections 6.7.4 and 6.8.4 in order to extend its nonconforming use to accommodate the increasing demands of its business. Following proper notice to abutting and interested landowners, a hearing on the application was held by the board on September 24, 1975.
The petitioners appeared as remonstrants at the hearing. The petitioners George and Cora Dean own and reside on lot 615 which abuts the southern and part of the eastern sides of the applicant’s parcel. The petitioner Joyce Heathcote owns and resides on lot 475, which abuts the northern side of the applicant’s parcel. The proposed additions are to be built right up to the property lines between applicant’s parcel and lots 615 and 475. These remonstrants are concerned about the effect of the proposed additions on their residences, which are themselves nonconforming uses in a “heavy commercial” zone.
At the hearing, evidence was adduced that while the
On November 24, 1975, petitioners filed a complaint in the Superior Court pursuant to G.L. 1956 (1970 Reenactment) §45-24-20, seeking a reversal of the board’s decision. The Superior Court justice dismissed the appeal on July 1, 1976, after finding that the board had jurisdiction to grant the special exception and that the findings of the board were supported by competent evidence. We granted certiorari on September 9, 1976.
The petitioners’ first contention is that the board exceeded its jurisdiction in granting the special exception because it derived its power to act under section 14.2.3 of the zoning ordinance, which ordinance is an unlawful delegation of power to the board by the town council. However, the record indicates that the claim of improper delegation was not raised by petitioners in the complaint citing their reasons of appeal to the Superior Court,
Even if petitioners’ delegation challenge were properly before us, we would conclude that it is without merit. We have previously held that the language “reasonably necessary for the convenience and welfare of the public” in section 14.2.3
The petitioners also contend that the board’s finding that the proposed additions would not be inimical to the public health, safety, morals or welfare is unsupported by any competent legal evidence. We agree, not for the reasons cited by petitioners in their brief, but for those reasons set forth in our decision in Sun Oil v. Zoning Board of Review, 105 R.I. 231, 251 A.2d 167 (1969), which we regard as controlling on this issue. In that case a property owner sought to raze a gas station currently operated as a nonconforming use under the
The record before us reveals that the only witness who alluded in any way to the effect of the violation of the setback requirements by the proposed extensions was applicant’s real estate expert, Mr. Sheldon E. Rodman. On direct examination he testified in general terms that the proposed additions would not have an adverse effect on the surrounding community or substantially change its character. On cross-examination, however, he was questioned specifically concerning the effect of the violation of the side-yard requirements on lot 615:
“Q. And the proposed addition would bring that building right up to the lot line?
“A. Right.
“Q. And is it your testimony that that would enhance the value of 615; would it bring the building right up to the lot line?
“A. I don’t think that with the present zoning of lot 615, it would have a depreciating effect. This area here is above street level. (Indicated.) It’s a hill over here, but you have to get access through the area to this lot. (Indicated).
*831 “Q. From the point of view of the resident of lot 615, don’t you agree that the extension of that building and the lot line would make the lot less valuable for residential purposes?
“A. That’s the whole point, it’s not zoned for residential purposes.
“Q. But it’s being —
“A. Used for residential — I don’t think it would have an adverse effect for a heavy commercial use.
“Q. But for a residential use, it would?
“A. It all depends on what went on within the walls of that building.
“Q. Suppose it were fabricating steel columns?
“A. If the noise level or there wasn’t any smell — I would say if the noise level was held at a certain point, I would say it did not have an adverse effect.”
No evidence appears in the record concerning the noise level of the proposed use, nor is there a description of the activity “within the walls” more detailed than “warehousing” or “fabrication.” Consequently, we can perceive no sufficient basis for the drawing of Mr. Rodman’s conclusion. Indeed, his opinion as to the effect on neighboring properties is so highly tentative as to be lacking in probative force.
Keeping in mind that on a petition for certiorari we review the record to determine the presence of competent legal evidence to support the findings of the tribunal below, A.T. & G., Inc. v. Zoning Board of Review, 113 R.I. 458, 322 A.2d 294 (1974), and that the burden is on the applicant to prove entitlement to an exception, Caldarone v. Zoning Board of Review, 95 R.I. 485, 187 A.2d 924 (1963), we are unable to find sufficient evidence concerning the effect of the relaxation of the minimum side and front-yard setback requirements of each proposed addition on the public’s health, safety, morals and welfare. This failure is fatal to the applicant’s petition. It is therefore not necessary to consider the other issues raised by the petitioners.
The petition for certiorari is granted. The judgment of the Superior Court is quashed, and the records certified to this court are hereby remanded to the Superior Court with our decision endorsed thereon.
The record does not indicate any legal relationship between the petitioner George Dean and the applicant George H. Dean, Inc.
Warwick Zoning Ordinance §§6.1.4, 6.2.2.
General Laws 1956 (1970 Reenactment) §45-24-20 provides in pertinent part that on appeal from a zoning board of review, the Superior Court may review the decision of the zoning board “if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions or decisions which are « * * in violation of constitutional, statutory or ordinance provisions » »
Under section 14.2.3 the board is authorized “[i]n appropriate cases and subject to appropriate conditions and safeguards to make special exceptions to the terms of this ordinance where the exception is reasonably necessary for the convenience and welfare of the public.”