Michael Chirico vs. Zoning Board of Review of the City of Warwick, 98 R.I. 244

Condon, C. J. This is a petition for certiorari to review the action of the zoning board of the city of Warwick in denying the petitioner’s application for an exception from the zoning ordinance pursuant to the provisions of

section 14.2.3 thereof. We issued the writ and in compliance therewith the board has made due return of all the records and papers pertaining to its proceedings in the matter. The petitioner is the owner of lot 44 on assessor’s plat 293 situated on the westerly side of Warwick avenue in the city of Warwick. He desires to use the lot for a gasoline service station where, in addition to the sale of gasoline, light repair work would be performed. Although the lot is in a heavy commercial district such a use is not allowed therein without the express permission of the zoning board.

Under sec. 14.2.3 the board is authorized to make special exceptions to the terms of the ordinance “where the exception is reasonably necessary for the convenience and welfare of the public.” At the hearing before the board the applicant testified in support of his petition that the lot was irregular in shape and for that reason he had been unable to interest anyone in purchasing it.

It also appeared from his testimony that Texaco was willing to buy the lot for a gasoline station and it was the only possible purchaser except that one person wanted it for a “hamburger place” but also wanted petitioner to put up a building. A realtor testified in petitioner’s behalf to the effect that he had the property listed for sale for a period of two years and had been unable to interest any other person to purchase it subject to the permitted uses under the ordinance.

In the opinion of the realtor the “highest and best use” of the lot would be a gasoline station and that the one which Texaco proposed to build would not devaluate neighboring property but on the contrary would enhance its value and greatly improve the surrounding area. On the basis of this testimony petitioner’s attorney argued that to> deny the application would be to deprive petitioner “of the most beneficial use” of the lot. There were no objectors at the hearing but the board reserved decision to make a further investigation of the premises.

Thereafter the board filed a decision wherein it stated several reasons for denying the exception. After weighing the testimony and relying upon its own knowledge of the area where the lot is located and of the number of gas stations on Warwick avenue within a distance of 2.3 miles, it concluded that the evidence was insufficient to prove another station was necessary for the convenience and welfare of the public; that there were no unusual site conditions involved; and that the lot was ideally suited for many uses in a heavy commercial district.

It further found that the denial of the requested exception would not result in depriving the applicant of the full and beneficial use of his land since there were those other uses permitted in a heavy commercial district. The petitioner contends that none of those reasons is sufficient to justify the denial of his application. With reference to the first above-mentioned reason, he argues that the existence of a number of other gasoline stations within the vicinity of his lot is without probative force on the issue of whether the allowance of another would be contrary to the convenience and welfare of the public.

As to- the second such reason, he contends that he had no duty to show that the exception would be for the convenience and welfare of the public, but that it was the board’s duty to show that its finding denying the exception was based on evidence supportive of that ground. The petitioner challenges the accuracy of the third reason and claims that a mere reference to the copy of the plat map demonstrates conclusively “that there are or might be some unusual site conditions” involved in the shape of the lot.

In this connection he points out that the testimony shows that it was impossible to interest prospective purchasers of the lot because of its irregular shape. As to the fourth reason, he concedes that it may well be true that the lot is suitable for many of the uses permitted in the district,- but he argues that after trying for two years unsuccessfully to find a purchaser this should be deemed a reasonable basis for granting an exception from the ordinance.

We have set out petitioner’s contentions at some length because it would appear from their mere statement that petitioner has a misconception of the obligation resting upon an applicant for an exception under sec. 14.2.3. That

section authorizes the zoning board, “In appropriate cases and subject to appropriate conditions and safeguards to make special exceptions to the terms of this ordinance where the exception is reasonably necessary for the convenience and welfare of the public.” Whether the case presented by the application is an appropriate one and whether the exception will necessarily serve the public convenience and welfare are matters which the applicant must prove to the satisfaction of the board. This he has not done.

There is no evidence in the record that petitioner’s lot is not reasonably suited for the uses permitted in a heavy commercial district. Its irregular shape has not been shown to be an obstacle to its adaptability for such uses. Nor do» we find any evidence that tends to prove the public need for another gasoline station in the area.

The fact that petitioner has been unable after two years of persistent effort to sell the lot subject to the permitted uses does not justify the grant of an exception therefrom to enable him to consummate a sale to the only prospect he has found willing to purchase provided the lot could be used for a gasoline station. He must do something more than that to entitle him to relief from the existing zoning restrictions.

He must show that “the exception is reasonably necessary for the convenience and welfare of the public.” In our opinion the petitioner presented no evidence possessed of such probative effect and therefore the board did not abuse its discretion in denying his application for lack of competent evidence to support it. ' ' The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the records and papers certified are ordered sent back to the board with our decision endorsed thereon.