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Bonitati Bros. v. Zoning Bd. of Woonsocket

Supreme Court of Rhode Island
Jun 12, 1968
104 R.I. 170 (R.I. 1968)

Summary

holding that in order to find that general welfare will be negatively impacted, it must be proven that "the traffic generated by its establishment at that site will intensity the congestion or create a hazard."

Summary of this case from Broadway Express, LLC v. City of Providence Zoning Bd. of Review

Opinion

June 12, 1968.

PRESENT: Roberts, C.J., Paolino, Powers, Joslin and Kelleher, JJ.

1. ZONING. Exception. Gasoline Station. Traffic Congestion. Pertinent Evidence. Evidence of traffic congestion and hazards, as bearing on whether a proposed use will adversely affect public convenience and welfare, should relate not to congestion presently existing at the location of the proposed use but whether the traffic generated by its establishment will intensify or create a hazard. G.L. 1956, § 45-24-13.

2. ZONING. Exception. Community Need. Convenience and Welfare. Rule Governing Boards. Lack of community need for another automobile service station was no longer available as a basis for denying relief to applicant; now controlling is whether it will bring about conditions inimical to public health, safety, welfare and morals. Since the board decision antedated Nani v. Zoning Board of Review, 104 R.I. 150, 242 A.2d 403, rule of limited prospective application of Nani, as announced therein, is invoked and decision quashed without prejudice. G.L. 1956, § 45-24-13.

CERTIORARI to review denial of application for exception to construct and operate gasoline automotive service station, heard and petition granted, decision quashed without prejudice to right of petitioner to reapply for relief under the terms of the ordinance.

Benedetto A. Cerilli, Charles A. Pisaturo, for petitioner.

M. Durkan Cannon, Assistant City Solicitor, for respondent.


We review on certiorari the respondent board's denial by a 4-1 vote of the petitioner's application for permission to construct and operate a modern gasoline automotive service station in a 6.4 Shopping Center District where such a use is allowable as an exception upon a showing that it is "* * * in harmony with the general purpose and intent of this ordinance, or where such exceptions are reasonably necessary for the convenience or welfare of the public." (Sec. 10.33 of Woonsocket Zoning Ordinance.)

The board in a cryptic decision gave two reasons for denying relief. One was that the road — presumably Diamond Hill Road where it was proposed that the gasoline station be established — "is hightly congested." Evidence of traffic congestion and hazards is, of course, germane to whether or not a proposed use will adversely affect the public convenience and welfare. For such evidence to be effective upon the ultimate determination, however, it should relate, not to the existence of congestion at the location of the proposed use, but to whether the traffic generated by its establishment at that site will intensify the congestion or create a hazard. Thomson Methodist Church v. Zoning Board of Review, 99 R.I. 675, 210 A.2d 138; Center Realty Corp. v. Zoning Board of Review, 96 R.I. 482, 194 A.2d 671. The board's statement that the road "is highly congested" is not, therefore, a valid predicate for a denial of the application.

"Reason for DENIAL: The convenience and welfare of the public will not be served, will not conform with the general welfare of the community; safety, health and morale and general welfare of the community will not be served; application should not be granted as there are enough gasoline service stations in the city to take care of the needs of the motorists as there is an average of three hundred cars to each station; road is highly congested."

The other and perhaps the principal reason for the board's decision was that there are "* * * enough gasoline service stations in the city to take care of the needs of the motorists." Lack of community need for the use proposed, however relevant it may once have been on the question of whether that use would serve the public convenience and welfare, is no longer available as a basis for denying relief. What is now controlling is whether the establishment of the proposed use will bring about conditions which are inimical to the public health, safety, welfare and morals. Nani v. Zoning Board of Review, 104 R.I. 150, 242 A.2d 403.

The board's decision antedates our decision in Nani. Inasmuch as the absence of a public need for the use proposed is no longer available as a valid basis for a denial and the decision rests on no other, we apply the rule of limited prospective application announced in Nani, and quash without prejudice.

The petition for certiorari is granted, and the decision of the respondent board is quashed without prejudice to the right of the petitioner to reapply for relief under the terms of the ordinance.


Summaries of

Bonitati Bros. v. Zoning Bd. of Woonsocket

Supreme Court of Rhode Island
Jun 12, 1968
104 R.I. 170 (R.I. 1968)

holding that in order to find that general welfare will be negatively impacted, it must be proven that "the traffic generated by its establishment at that site will intensity the congestion or create a hazard."

Summary of this case from Broadway Express, LLC v. City of Providence Zoning Bd. of Review

In Bonitati Bros. Inc. v. Zoning Board of Review, 104 R.I. 170. 242 A.2d 692. we noted that evidence of a traffic hazard is germane to an ultimate determination of whether the use, if permitted, would adversely affect the public convenience and welfare.

Summary of this case from Piccerelli v. Zoning Bd. of Barrington
Case details for

Bonitati Bros. v. Zoning Bd. of Woonsocket

Case Details

Full title:BONITATI BROS., INC. vs. ZONING BOARD OF REVIEW OF THE CITY OF WOONSOCKET

Court:Supreme Court of Rhode Island

Date published: Jun 12, 1968

Citations

104 R.I. 170 (R.I. 1968)
242 A.2d 692

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