238 A.2d 387 | R.I. | 1968
This is a petition for certiorari brought to review a decision of the zoning board of review of the city of Cranston granting permission to erect a gasoline service station on a parcel of land presently zoned C-2 for commercial uses located on Narragansett boulevard in that city. The writ, issued, and pursuant thereto the respondent board has returned the record in the case to this court.
It appears therefrom that the premises under consideration are located at 1052-1054 Narragansett boulevard and are identified as lots 443 and 444 on assessor’s plat No. 2 of the city of Cranston. In the application, the applicant is the Sun Oil Company of Terminal Road, Providence, while the owner of lot 444 is stated to be "Sun Oil Company” and the owner of lot 443 “Sun Oil Co. (By Agreement).” The application is executed only by the Sun Oil Company.
There is evidence in the record adduced through one Milton C. Matteson, a representative of Sun Oil Company, that lot 443 is owned by a person he identified only as “Asadoorian” and that Sun proposes to acquire this lot if the board grants the exception here applied for. In short, it is clear from the record that at the time of .the application, Sun Oil Company was the owner of lot 444 and the only applicant for the exception, and that the exception was intended to apply to lots 444 and 443, if .granted.
It appears from the record that the board made an inspection of the two lots and observed that the present gasoline station located on lot 444 is small and has limited off-street
In this court the prime issue is whether the board had authority to grant an exception applicable to lot 443, the record not disclosing that Sun was the owner of lot 443, or whether in the circumstances Sun had standing to apply for a change in the zoning regulations applicable to lot 443.
The respondent board concedes that at the time of the application, title to lot 443 was not in the applicant Sun but was in one Satenig Asadoorian, but argues that there was in existence at that time an agreement to purchase the Asadoorian property, that is, lot 443, if the exception were granted. In the transcript there is testimony tending to establish that the Sun Oil Company intended to purchase lot 443 upon approval of its application for an exception by the respondent board.
It must be noted that this is not a case involving an application for a variance pursuant to §45-24-19 (c), wherein the applicant is without some right, title, or interest in the land under consideration. The want of standing in the applicant in such cases to apply for such relief rests upon the theory that hardship within the meaning of the provisions
We have, however, passed on some aspects of the problem of the standing of one to apply for an application for an exception prescribed in an ordinance who is without right, title, or interest in the land to which an application would apply. We are not aware that any of these cases was decisive of that issue.
The respondent appears to place some reliance on the decision of this court in Dunham v. Zoning Board, 68 R. I. 88, 26 A.2d 614. In that case a public utility had applied for an exception that would permit the erection of new plant facilities on land not owned by it but with respect to which it held an option to purchase. However, the record clearly disclosed that the owner of the land had joined in the application with the utility, and this court held that in those circumstances the board had authority to grant the exception. In the instant case, despite the contentions of respondent, the record is clear that the owner of lot 443 did not join in the application.
In Tramonti v. Zoning Board of Review, 93 R. I. 131, 172 A.2d 93, an applicant for an exception failed to make any formal proof of its ownership of the land to which the exception would apply. On an appeal to this court the petitioner argued that this left the board without authority to grant the exception. However, this court, after scrutinizing the record closely, held that there was ample evidence contained in the record to establish that the applicant was in fact the owner of the land.
We also considered an aspect of this issue in Dimitri v. Zoning Board of Review, 61 R. I. 325, 200 Atl. 963. However, in that case we established an appellate rule. There an
In Dimitri we held that it was the burden of such an applicant to establish the jurisdictional facts that would disclose his aggrievement by the order of the board. We went on to hold that one having no right, title, or interest in the land to which an exception would apply could not be aggrieved under that provision of the statute by the denial of a permit.
The enabling act contains no express provision conferring standing on any particular person to claim either a variance or an exception, and for this reason, as we did in considering the standing to claim a variance, we attach significance to the purpose-for which exceptions are established. In Buckminster v. Zoning Board of Review, 69 R. I. 396, 33 A.2d 199, we said in reference to those provisions of the enabling act prescribing the establishment of exceptions within the terms of an ordinance: “This mandatory requirement of the statute is in the nature of a safety valve which the legislature wisely provided in order that, in a proper case, the public interests and those of an owner of land might be fairly adjusted without undue disturbance to the general welfare.” It appears to be clear then that one without any right, title, or interest in the land can have no interest to be adjusted with the interests of the public. It is then our opinion that the legislature contemplated that standing to obtain an exception would be conferred upon those who have some right, title, or interest in the land.
The question remains then as to what constitutes a sufficient interest fin land apart from ownership to confer standing to obtain an exception. Our own cases are of little assistance in this respect. In Ralston Purina Co. v. Zoning Board, 64 R. I. 197, 12 A.2d 219, we held that a lessee has
Recently in Shulman v. Zoning Board of Appeals, 154 Conn. 426, 226 A.2d 380, 382, the Connecticut court said: “The general rule, which applies in the absence of a specific provision to the contrary, is that one who has contracted to purchase property has standing to apply for a special exception or a variance governing its use.” The court went on to. point out that the applicant, while not the owner of the property, had a contract to purchase the premises from its present owner and held that absent some specific provision in the zoning ordinance, to the contrary, such a contract was all that was required to confer standing. It would appear from an examination of the opinion that there was a binding contract to buy.
It would serve no useful purpose, however, for this court to further analyze-the cases dealing with this issue because the record in the instant case fails to disclose the precise nature of the agreement between Sun and Asadoorian for the sale of the land if relief from the zoning regulations were to be granted. The record discloses only that some form óf
The petition for certiorari is granted, the decision is quashed without prejudice to the right of the applicant to again apply to the respondent board for relief under the terms of the ordinance, and the record certified is ordered sent back to the board.