Gustafson v. ZONING BD. OF REVIEW OF CITY OF WARWICK

73 A.2d 366 (1950)

GUSTAFSON et al. v. ZONING BOARD OF REVIEW OF CITY OF WARWICK.

M.P. No. 949.

Supreme Court of Rhode Island.

May 19, 1950.

Charles H. Drummey, Edmund J. Carberry, Jr., Providence, for petitioners.

Hailes L. Palmer, City Solicitor, Providence, for respondent.

CAPOTOSTO, Justice.

This is a petition for certiorari to review the decision of the respondent board granting to John Assalone a variance under the zoning ordinance of the city of Warwick. The writ was issued and the record of the board has been duly certified to this court.

John Assalone's land is in a residence B district. The variance granted by the board authorizes him to erect a building for bowling alleys and to maintain a parking lot in connection therewith, both of which uses are not permitted in such a district under the ordinance. Petitioners make two contentions: first, that Assalone's application is so incomplete, misleading and otherwise defective as to be insufficient in law for consideration by the board; and secondly, that the decision of the board is arbitrary and capricious in that it disregards material facts and assumes others as to which there is no legal evidence. At the hearing before us counsel for the board made every reasonable effort to meet these contentions but when the deficiencies in the record appeared to him to be insurmountable he requested that the case be remanded to the board "for clarification."

Our examination of the record discloses that the infirmities inherent in both Assalone's application and the decision of the board are of such a nature that they cannot be cured by clarification. It is our judgment that in justice to all parties concerned the application for a variance involved in the instant case should be denied at this time, without prejudice, however, to the right of Assalone to institute completely new proceedings before the board by a proper application if he so desires. In the circumstances no further discussion of the record now before us is necessary.

The petition is granted, the record is quashed without prejudice as above set forth, and the papers in the case are ordered sent back to the respondent board.