*1 justice per- the trial have circumstances should Under such could out stand, point unless he jury’s mitted the verdict in- believed to-be testimony the defendant’s was wherein that in motion find, however, granting plaintiff’s We credible. evidence; on the that he gave no sound reason based uncontradicted or overlooked certain evidence misconceived merely issue; and that effect he principal material judgment jury, for the of the impression substituted his own open balanced and nearly where evidence was Johnson, See Anderson different reasonable conclusions. 59 R. I. 241. sustained, and the

The defendant’s case is for the superior entry judgment remitted to the court the defendant on the verdict. Kirshenbaum,

Kirshenbaum & for plaintiff. Taft,

James L. for defendant. Edward A. Fiske vs. Review Town of East Providence.

DECEMBER 1946. Flynn, Moss, J., Condon, Capotosto, C. Baker and JJ. Present: *2 See, also, 70 R. I. 426. J. a petition This is for a writ of certiorari to

Capotosto, review the zoning action board of review the town of East Providence, hereinafter referred to as the board, denying petitioner’s application for certain exceptions or under zoning variations ordinance of that town. The writ was issued and the record of the board was certified to this court.

It appears from the record that the petitioner, who oper- dairy ates a at the business corner of Wilson and Washburn avenues East Providence, state, this is the owner of two lots Wilson avenue, which lots are numbered on66 assessors’ plat 34 of that town. Wilson avenue approxi- runs mately east and bought west. He lot in78 1921 and has used it in connection with the dairy business since that time. In 1926 the town adopted a zoning ordinance. Under this ordi- nance 78 and 66, lots the latter of which is next easterly to former, were both included a residence “A” zone, the highest zoning use established the ordinance. As lot 78 was then actually used for business, such use permitted, by the ordinance a nonconforming as use.

The petitioner bought lot 66 “about 1936”. On lot this approximately feet from the easterly line of lot 78, existing there is an driveway, some ten feet wide, extending Wilson avenue for a considerable distance been heretofore has 66, portion into dwelling house, a one-family large used to serve rightfully buildings other small a barn and several garage, two-car occupied by dwelling lot. house drive- mind that this important keep home. It is only, practically and south north way approximately runs and 66. line between lots 78 with parallel division lot 66 in now across does not cut words, other westerly direction to lot 78. *3 excep- for an petitioner the to the board applied In 1944 an that he construct zoning might tion so to the ordinance to length width, and 18 feet the about 59 feet in addition, lot which existing dairy building of an easterly side nine from the division line between lots 78 building was feet proposed The 18 feet of the addition was southerly and 66. line of Wil- northerly to feet from the approximately be 90 By addition, son the the proposed avenue. erection nonconforming use on lot 78 would therefore be extended nine feet into lot 66. hearings, neighboring

After at which the owners of several objected the vigorously granting petition, to the property objections being mainly grounds their based on the that the and the wholly petitioner entire district was residential permitted enlarge nonconforming use, should not be his granted upon the board the condition the petition only pres- to use lot from the petitioner “shall be allowed 66 running ent addition 9 feet with lot 78 to proposed parallel Zoning Wilson Avenue.” Fiske Board 70 v. R. I. 426. for petition thereafter filed this court a petitioner board al- writ of certiorari to review this decision other that “the among things, restriction

leging, Zoning respect Board of Review with the access of said granted proposed addition contained its said decision . . accorded to the right . nullifies renders valueless That petitioner peti- to erect said addition . . . .” proposed portion that the of the decision of prayed tion for certiorari the board denied to the the use of petitioner which effect and that there driveway quashed cement be inserted in place following language: petitioner thereof the “and said may granted by have access said addition proposed driveway located Lot for all present means said on said may purposes for which said addition be used.” In proposed case, petitioner’s point contention was that the use of the on lot 66, directly case, necessarily involved the instant inci- dental proposed for addition and his granting thereof. That for petition certiorari was denied and us by prejudice. dismissed without Fiske Review, supra. During of that or pendency case imme- diately the petitioner thereafter built the new addition. petition zoning an ordinance at asks: (1) case bar That he be allowed to use the cement lot driveway on with connection dairy building and approach thereto from Wilson avenue as extended the board 66; into and (2) that he further *4 be allowed to use a portion lot, of that approximately 70 by feet, 90 for storing and parking trucks and other vehicles by used him or others connection with dairy business. portion lot petitioner 66 which the now to desires use for storing and parking and other trucks begins vehicles at a point westerly line lot 66 approximately 90 feet northerly from Wilson avenue, northerly thence along said line about feet to the northeasterly 93 78, corner lot thence turning right angle running and easterly feet, 70 thence turning running and for southerly about feet, 90 thence turn- ing right angle and running westerly 70 feet the point of beginning.

We recall at this point that cement driveway on lot 66 originally was 10 feet wide and about 60 easterly feet from the division line between lots 78 and If 66. widened to 20 feet, requested, as such driveway would be about 41 feet from the nine-foot strip of lot 66 which the board allowed the petitioner to use as a nonconforming use in connection with

221 If new addition mentioned. both of hereinbefore instant requested by case exceptions granted, portion 66, approxi- were it would leave a lot X mately 41 hereinafter referred to area for by feet, as easterly between the line of lot 78 convenience, pocket as previously extended the board for a westerly side of the cement which area driveway, would continue to be zoned for under purposes residential the ordinance. note point

We at this which the peti- tioner with reference cement driveway seeks is far broader than appears impression. first substance he only asking original effect is not for the driveway for commercial but he purposes, asking is also he be permitted enlarge to a of 20 width feet and to add an arm or extension in a thereto, running westerly direction land of lot now across zoned for resi- dential for a purposes, distance about feet to the new addition which he permitted was to build on that lot and to granted which he was an If approach Wilson avenue. the cement driveway widening and the proposed and exten- sion thereof were allowed to be used commercial púrposes, it would leave land zoned for residential use to the east of cement the north and south of the extension thereof, a circumstance which well within the power of the board consider.

Several hearings were held by the board on the petition and evidence was submitted. The petitioner’s testimony was, if substance, that he were allowed the use of existing cement driveway with the proposed extension, could con- *5 growing duct his business more expeditiously and without incurring great expense in hiring of more in the help, rearrangement of a certain portion of the layout interior dairy, and in the construction of driveway another the nine-foot of lot from strip avenue to Wilson the south- erly end of the new addition, which additional driveway, according him, would add to the commercial aspect of the He further

property. that testified Wilson avenue vicinity dairy would be freed from conges- vehicular if tion permitted were to use driveway the cement above indicated and were further allowed to use that part lot 66 hereinbefore described for storage parking trucks other vehicles.

The property vicinity again objected owners vigorously, person, by attorney by written communi- cations board, granting to the to the of either of the excep- sought by tions the petitioner. They urged, general, that the entire district for a considerable distance had been and wholly residential; was that, when the petitioner bought lot 66, he knew that it zoned for residential purposes; and that he should not permitted now be enlarge to further nonconforming use, as each such enlargement would tend to change provisions by the ordinance means of exception by rather than proper method and thus be increasingly det- rimental enjoyment value and of their respective properties for residential purposes. objectors presénted also as a witness a well-known

architect, with experience the construction of dairies, who testified that petitioner could obviate if not most, all, of by his difficulties widening the upper easterly portion of the

existing main driveway from Wilson avenue to the dairy, easterly side of driveway is on lot 78 and not more than 20 feet from the division line between lots 78 and 66, so that would extend in front of the south- erly side of the new addition; and, further, such change, at an $800, estimated cost of would make it unnecessary to build a new driveway on the nine-foot strip of or to use the under consideration here.

The evidence further shows when petitioner built a door on the southerly side of the new addition, he varied from original plan submitted to his first for an exception. The why reason change . appears was made in the following answers questions his own “Q. counsel: And you built the *6 granted you August extension which was on 15 of last in year exactly accordance with the plans specifications? Q. A. in change Yes. Is there not the south of it? part some A. We in left a door the front because we did not know going Q. whether we were to use the What kind of side. Q. door? A. An An unloading emergency overhead or door. door? A. if Yes. So that we can’t the other door (a plan easterly shown of the new addition side facing the cement under consideration we here) would have it to use.”

In addition to the evidence, clarity we out- have lined detail, some the board took a view of the premises and thereafter denied the in a petition written decision, which, substance, is based on the following grounds: First, the denial of the exceptions would not in any result unnecessary hardship to the petitioner; and, secondly, that the granting unduly thereof would conflict with public interest expressed as ordinance, grant that such would contrary general welfare and seriously affect the use and value of neighboring properties for residential purposes. It appears the language of the decision that the board construed proof support of the exceptions showing that the petitioner requested them more for con- venience than through necessity the true meaning of word. In the course of its decision the pointed out that, when the petitioner bought he knew that the lot was then in a residence A zone; with the prior extension of use for a distance of nine feet into lot 66 from Wilson avenue to the new addition, had ample means to meet practical “his needs” in carrying on the dairy business; and that, with knowledge opportunity, he could arranged have the interior setup of his “in plant such a manner as to make the most efficient approaches granted and available.” Nowhere in the record before us does the petitioner claim that he could not use the new addition without the grant of for use of the cement driveway, nor that by

224 use of of all beneficial such deprived he would be

its denial subjected hardship. to unreasonable or be addition otherwise of portion lot also clear that use evidence is storage parking for the of 66 hereinbefore described great would be of convenience to and other vehicles trucks nothing there to that he is un- but is. show petitioner, in the conduct of his reasonably hampered and restrained use, clearly such incon- right business without the of spirit purpose with the the ordinance. sistent for the petitioner's application When consider the use we such driveway, of the cement substance seeks for a of approxi- to extend his use distance 41 mately avenue, feet on feet from the is, Wilson him previously granted plus feet, extension which is driveway. of proposed width Tim board was granting entitled to consider the effect that would follow the application upon X, area which would then be left zone with land devoted to residential commercial use both of that area. sides

Furthermore, right the board had the to consider un- contradicted evidence from an architect with experience in building and setup of dairies that the if petitioner could, adequately he so desired and at reasonable cost, serve the by enlarging new addition apron the main driveway it so as to extend to the front that addition. In the opinion of this expert, there would then be no necessity to either the cement or to build a new on the nine- foot strip which the board in prior its decision al- lowed the commercial purposes. may The petitioner find himself inconvenienced to some growing extent the conduct of business a denial of exceptions sought by him, any but inconvenience that now may experience he is the result of his buying lot in66 1936, when knew or should have known that the zoning which had then been in ordinance, force since 1926, put that A lot in a residence zone. Furthermore, the fact that some might be expense necessary additional to make his property not for business is or adaptable profitable more or convenient excep- granting of an require ground sufficient itself Zoning Ricci zoning tion to a ordinance. held in a of cases uniformly have series I. 58. We also

72 R. on a zoning petition review of a the decision *8 zoning of application in a or variation the for an dis- is the board’s ordinance, petition when the addressed to the appears that clearly it will be set aside unless cretion, not arbitrarily its Olevson v. acted and abused discretion. board Review, R. cited. 303, I. and cases Zoning 71 Board of of composed of residents in the case is The board instant Roberge in as said they, and was town of East Providence the Review, 304, be (R. I.) A. “should Zoning v. 157 Board of the local conditions and are familiar with and without doubt premises the inspected here Moreover, the board needs.” denying request petitioner’s neighborhood viewed the before In nonconforming Drabble v. for of a use. the extension 232, R. at this court 228, page 52 I. Zoning Board of particularly nonconforming the a use is extension of said in the of this for board since cases one consideration to be there often numerous elements considered nature are thorough knowledge of only can be from a which understood Syrian nature and See also surrounding property, the its use. Board, of R. I. 232. The case Society Zoning v. Orthodox Mills, Board, 428, I. Zoning Inc. v. 51 R. is Providence East the in the of instant case because inapplicable circumstances cases, facts the of the of the of two one clear differences sought excepted land important being most the be of ordinance in the cited provisions the the case was the bought by the enactment of ordinance. petitioner before Board, R. I. at page 30, Heffernan appealing “In of the court said: the discretion provisions for a of the ordinance review variance of upon satisfy judgment burden was petitioner unduly not the board that such variance would conflict expressed public ordinance, with the interest as re- provisions also that the literal enforcement of its would very to him of a hardship suit or loss serious peculiar required of which not for the character, imposition was enforcing of the ordinance general scheme ^purpose unnecessary of an placing amounted to the hardship hence upon him.” held to such a board proof, Unless is it power, have, review would have the does not nullify ordinance under the or guise excep- of variations - especially tions. This is so where a use is involved and sought, its extension the instant case, as by proof which, fairly when considered a whole, shows the petitioner two or exceptions seeks variations convenience rather growing business than because the provisions of the ordinance would result an placing unnecessary burden on him, which not re- quired for the purpose enforcing ordinance protection of the public health, safety or welfare.

After a careful consideration all of the evidence in the in- stant case we are the opinion of that there has been no abuse judicial of by the discretion board in denying the petition for the proposed extensions of the of the premises question. in

The decision of the respondent board is affirmed, the writ of certiorari is quashed, and the in papers the case are ordered remitted respondent board. J., I dissenting.

Condon, dissent that of part the court’s opinion which holds that the board of review did not its in abuse discretion denying petitioner permission to use driveway the cement in on lot 66 connection with the con- duct of dairy. Such denial was inconsistent with the board’s prior granting decision the petitioner permission to strip use a of land not more than nine feet wide and immedi- adjacent ately to the.extension of dairy the building on.lot 66. See Fiske v. 70 R. I. 426. of

In so far as use of the such lot for purpose of a drive- inway connection with dairy business is concerned, the only difference between the permitted use and the nonper- mitted a of If the use merely matter distance. of is existing would driveway permitted bring it cement in and of the lot in vehicular traffic out connection with the dairy feet nearer to the homes of the land- objecting about 50 If situated for use in owners east lot 66. con- dairy building nection is to at all permitted with be lot, hardly that fact would constitute reasonable board ground deny petitioner’s discretion request he permitted existing to use be building strip. instead of a new one on the nine-foot Indeed circumstances, in find difficult, anything it such more caprice petitioner’s a basis for the board’s than denial request. not, granted petitioner Had it prior decision, its it right strip into the lot over nine-foot access would abused not be so clear that the board had perhaps its dis- denying petitioner’s present application; but cretion my prior cannot, decision there opinion, view be on the record here. any abuse, doubt of such at least When, considering petitioner’s .application, first’ be undertook to decide whether should entitled to with the conduct part use a of lot 66 connection of his dairy building which the board dairy the extension it exhausted discretion. its Hav- permitted lot, had under once it must havé the statute and ordi- ing found, as contrary lot would nance, such a use of not *10 of a literal enforcement the ordi- interest public in the unnecessary hardship to petitioner, would result nance deny right the reasonably not him to the board could use driveway that, merely it could be shown existing unless to driveway was 50 feet nearer the land the cement because objectors 66, the east such use would to of some of the degree. to marked interest The contrary public to be showing far short of an the board falls before evidence upon effect sensibili- upon public. adverse effect consequence. is no It nearby landowners is ties of some adversely affected, be that must shown as public interest degree. in a marked and that (cid:127) guide of review a to zoning boards given court

This has before of the kind now applications passing upon follow I. 50 R. at In us. Heffernan construing authorizing it boards page 29, said, statute grant variance, expressions to an or “The review ‘contrary ‘unnecessary hardship’ to interest’ and public given As the interpretation. provisions ndust be a reasonable public interest, of the ordinance a declaration of represent contrary be thereto. any variance would some measure to the ‘contrary public this connection the words interest’ judgment should be to mean what of a interpreted man in a unduly, degree reasonable would marked con flict with the As to the provisions. ordinance words ‘unneces be sary hardship,’ may it said that each of the restrictions what upon ordinance would be a lawful otherwise of one’s be property might termed a to the owner. ‘hardship’ regard We the term ‘hardship’, as the ordinance, used to to the degree have some reference of the interference with ordinary legal property rights, and to the loss or hardship which would arise therefrom. We think expression should interpreted peculiar refer a ‘hardship’ to the situa tion of the applicant, degree is of such a severity imposition not its necessary carry is out the spirit of the ordinance, and amounts to a substantial and unneces injustice sary applicant.” to the Tested that standard the board’s denial of the peti- tioner’s in the is, case at in my bar opinion, with- any out reasonable basis and is, therefore, arbitrary and capricious. On the record here it is obvious that petitioner’s of the existing would no sense be contrary public interest degree marked and it equally obvious that to build new the nine-foot strip would be an unnecessary hardship not be would called for order carry out the spirit zoning ordinance. The board’s petitioner’s denial of applica- permission tion for to use the existing cement driveway *11 should, therefore, be reversed. Reargument Motion for

On January 21, 1947. our the above case After decision Curiam.

Per a motion for to file permission and received petitioner asked has filed permission reargument. Pursuant on which he bases setting out therein certain reasons motion, of the case. justice requires reargument his contention and we are of the those reasons carefully We have considered merit. they are without opinion Motion denied. Woolley, Hennessey, petitioner. Walter J.

Clarence N. Brand, for respondent. H. William C. Gorham, for remonstrants.

Sayles Sharpe Manufacturing vs. Brown & Louise Giarrusso Company.

DECEMBER 1946. J., Moss, Capotosto, Condon, Flynn, Baker JJ. C. Present: