Annotate this Case

182 A.2d 305 (1962)


M. P. No. 1476.

Supreme Court of Rhode Island.

June 22, 1962.

Francis J. Kiernan, Archibald B. Kenyon, Jr., Providence, for petitioners.

Charles A. Kelley, City Sol., Abraham Goldstein, Asst. City Sol., for City of Cranston.

CONDON, Chief Justice.

This is a petition for certiorari to quash the decision of the zoning board of review of the city of Cranston granting a permit for the erection of a business building in an apartment house district. Pursuant to the writ the pertinent records have been certified to this court.

It appears therefrom that the applicants for the permit, Philip and Anna Gasbarro, are the owners of lot 1345 on assessor's plat 2/5 and desire to erect thereon a building containing two stores, one of which is to be used as a retail liquor store and the other for storage. At present Philip conducts a liquor store in the neighborhood but he needs larger quarters and intends to move if he is allowed to build on their lot. There is a residence on the lot now which will be demolished to make room for the new business building.

In his testimony he offered no reason in support of the application other than that he needed more space for his business and for storage of empty bottles than was available at his present location. If he was not permitted to use the lot apparently the only hardship he would suffer would be that he might not be able to continue in his present location and he wanted to remain in the same neighborhood because of his customers.

*306 The sum of his witnesses' testimony was that he is a good man and they would like to see the applicants get the permit. The remonstrants, petitioners here, testified against the application.

After the hearing the board found that, on all the evidence and its own knowledge of the premises, a variance from the zoning ordinance on the ground of unnecessary hardship and also an exception under sec. 27 B (8) of the ordinance was justified.

The petitioners contend that the decision cannot be supported on either ground and should therefore be quashed. They argue that it does not state the reasons on which it is based nor do they appear in the record; that there is no evidence of unnecessary hardship such as is required to justify a variance nor any to prove that the public welfare and convenience would be served by an exception under sec. 27 B (8) of the ordinance; and that the decision shows the board exceeded its jurisdiction by in effect amending the ordinance rather than granting relief under it.

From our examination of the record we have been struck with the utter absence of any evidence therein of a hardship to these applicants such as to justify the granting of a variance. There is absolutely no evidence that they will be deprived of all beneficial use of their lot, and such evidence is indispensable to support a variance. Hazen v. Zoning Board of Review, 90 R.I. 108, 155 A.2d 333.

The record is equally devoid of any evidence tending to prove that the public welfare and convenience will be substantially served by permitting the invasion into this apartment house district of a business building designed for use as a retail liquor store. Nor have we found any specific reasons in the board's decision emanating from their own knowledge of the premises that would support either a variance or an exception.

In this state of the record there is no need for us to consider any of the other contentions by the petitioners. It is clear beyond any question that there is no legal evidence here to support either a variance or an exception under sec. 27 B (8) of the ordinance.

The petition for certiorari is granted, the decision of the board is quashed, and the records certified to this court are ordered sent back to the board with our decision endorsed thereon.