Menard v. Zoning Board of Review

115 A.2d 533 (1955)

Alfred U. MENARD v. ZONING BOARD OF REVIEW OF THE CITY OF WOONSOCKET.

N. P. No. 1085.

Supreme Court of Rhode Island.

July 15, 1955.

Charles A. Curran, Angelo DiSpirito, Jr., for petitioner.

Israel Rabinovitz, City Solicitor, Richard A. Baldwin, Ass't City Solicitor, for respondent.

PER CURIAM.

This is a petition for a writ of certiorari to review a decision of the zoning board of review of the city of Woonsocket denying the petitioner's application for an exception or variance from the zoning ordinance of said city. The writ was issued and in compliance therewith the respondent board duly certified to this court the pertinent records.

After the case was heard on its merits this court requested further briefs and arguments on a jurisdictional question which had been referred to by both but had not been argued by either of the parties. That question was whether the respondent board, composed of only three members, is legally constituted to function validly in accordance with the provisions of the enabling act, general laws 1938, chapter 342. Accordingly the case was restored to the calendar and was further heard on the briefs and memoranda of law submitted by the parties in relation to such jurisdictional question.

After consideration we are of the opinion that the respondent board consisting of only three members was not legally constituted *534 to function validly in accordance with the general enabling act, notwithstanding purported actions that may have been taken in connection with the provisions of the home rule charter. In view of such conclusion we need not consider the other questions.

The prayer of the petition is granted, the action and decision of the respondent board and the pertinent records thereof are quashed, and the papers certified to this court are ordered sent back to the board with our decision endorsed thereon.