Travers v. Zoning Bd. of Review of Town of Bristol

225 A.2d 222, 101 R.I. 510, 1967 R.I. LEXIS 793

• Court: Supreme Court of Rhode Island
• Decided: January 6, 1967
• Docket: M. P. No. 1673
• Status: Published

Opinions

Paolino, J.

An abutting property owner brought this petition for certiorari to review the action of the respondent board in granting relief from lot-line and area regulations in the proposed erection of a new two-car garage accessory to a house on a residential lot to replace an existing one-car garage. Pursuant to' the writ the board certified the pertinent records to this court.

Mr. Ralph DeFelice, hereinafter referred to as the applicant, owns a parcel of land located in an area zoned “GR Zone — General Residence” in the town of Bristol. The land, 3,311 square feet in area, is improved with a house and a wooden one-oar garage and has a frontage of 43 feet on Constitution street and 77 feet on High street. The northern line of the applicant’s property abuts petitioner’s land on High street. The applicant’s present, garage is located in the rear of his lot one foot from petitioner’s line and eighteen feet from the front yard line.

The applicant filed an application requesting permission to replace the existing garage, 'which measures 17 feet by 18 feet with a new two-car cinder block garage measuring 20 feet 8 inches by 22 feet. He based his request on the •grounds that the present garage was in a rundown condition ; that it was too narrow for the new cars; and that the new garage would be a much safer structure and more pleasing to the eye. He proposed to erect .the north and west walls of the new garage on the same foundation lines of the old garage, but the garage would ibe enlarged by extending it 4 feet easterly toward High street and 3 feet, 8 inches southerly toward Constitution street. The proposed location of the garage does not comply with the dimensional regulatioais prescribed in the pertinent portion of art. Ill of the provisions of the general regulations set forth in art. VII, sec. 2 E, relating to yard exceptions. Bristol Zoning Ordinance (1961).

The applicant, the petitioner, and one other remonstrant appeared at the hearing before the board. The sum and substance of the remonstrants’ objections was that no deviation should be allowed from the lot-line and area regulations. The petitioner stated that his objection was that “new regulations apply unless there is extreme hardship.” The other remonstrant objected on the ground that if the applicant “is allowed to construct a cinder block garage ■there, then you musit give permission to all.” The applicant repeated what he had already alleged in his application to which was attached a plot plan showing the location of the proposed garage on his land.

After the hearing the board granted the application without giving any reason for its decision which, as recorded in the transcript, is as follows:

“The petition of Ralph DeFelice of 75 Constitution Street, Bristol, Rhode Island was granted upon a motion made by Mr. Ligeiro, seconded by Mr. Miserandin0‘. Miss Morris and Mr. Lavers voted affirmative and Mr. Medeiros abstained from voting.”

We note at the outset that no' special exception use is involved in this proceeding. A garage is permitted as an accessory use under art. IV, sec. 14, of the ordinance. It is not one of the uses designated as a special exception use in sec. 2 of art. IV. The relief sought here is not addressed to the discretion exercised by the board when passing on applications for special exceptions or variances for changes to an otherwise not permitted use.

The question raised by this record is whether the board was warranted in .allowing the applicant to deviate from the lot-line and area requirements of the ordinance on the ground of the hardship doctrine declared in Viti v. Zoning Board of Review, 92 R. I. 59, and reaffirmed in Reynolds v. Zoning Board of Review, 95 R. I. 437; DeFelice v. Zoning Board of Review, 96 R. I. 99; Reynolds v. Zoning Board of Review, 96 R. I. 340 (reargument); and H. J. Bernard Realty Co. v. Zoning Board of Review, 96 R. I. 390.

In arguing that the board did not have the power to grant a variance because there was no. evidence relating to unnecessary hardship to. the applicant, petitioner misconceives the nature of the relief sought and the standard to be applied in determining whether the application should be .granted. The facts in this case bring it squarely within the Viti rule under which an applicant is not required “to prove a loss of all beneficial use in order to- establish a right to relief.” Viti, supra, at page 64.

But, as we said in H. J. Bernard Realty Co., supra, at page 394, in discussing the Viti doctrine:

“We did not hold, however, .as petitioner seems to infer, that on application for such relief a property owner need show no more than that the varying of the proscribed regulation is for him a preferable alternative to compliance therewith, where compliance might be had, albeit with some inconvenience.

“There must be a showing of an adverse effect amounting to more than mere inconvenience.”

The petitioner attacks the validity of the decision on two grounds. The first is the board’s failure to state its reasons .and the second is that there is no competent evidence in the record to support the decision.

The petitioner’s first ground is a valid criticism of the board’s decision. We have many times pointed out the inconvenience to litigants as well as to the court resulting from the failure of a zoning board to state the reasons for their decision. As the .court said many years ago in Robinson v. Town Council, 60 R. I. 422 at page 437:

“Such boards should also set forth the ground or grounds for their decision, as this court is entitled to know the basis for their action, so. that it may determine whether their decision on the facts in evidence ■bears a substantial relation to- the protection of the public interests.”

In Petrarca v. Zoning Board of Review, 78 R. I. 130, 133, the court said:

“Unless a zoning board complies with the above-mentioned direction it runs the risk of reversal if this court is unable to find from the record that there were good and sufficient grounds for the decision in question.”

We have examined the record to determine whether there is competent evidence therein showing an adverse effect amounting to more than mere inconvenience if the relief requested is denied. In doing so we have kept in mind that this test must be applied reasonably and realistically.

The applicant’s existing garage is an old wooden structure which is not suitable for modern automobiles. He requests permission to deviate from the regulations because, .as he stated, “I want to stay on the line to give the tenants a little yard.” Implicit in the board’s decision is the finding that the evidence showed an adverse effect 'amounting to more than mere inconvenience and to deny the applicant a fuller use of his property and at the same time serve no public interest would be arbitrary and an abuse of discretion. See Cugini v. Chiaradio-, 96 R. I. 120, which, unlike the case at bar, involved an application for a special exception. Nevertheless at page 127 we held that, in the absence of an express finding thereon, there was an implicit finding in the decision of those prerequisite facts1 when the state of the evidence was such as would warrant ■the making of such finding.

In our opinion, the record in this case, scanty as it may be, warrants the finding that the denial of the application would create an adverse effect upon the applicant’s land •amounting to more than mere inconvenience without at the same time serving any public interest. The plot plan shows the location of the existing garage as well as that of the proposed garage and discloses that the existing lot-line limitations will not be affected by the relief granted. To' deny the requested relief would serve no public interest. In the circumstances we cannot say that the board acted arbitrarily or abused its discretion.

The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the records which have been certified to this court are ordered returned to the respondent board with our decision endorsed thereon.