Opinion
January 10, 1968.
PRESENT: Roberts, C.J., Paolino, Powers, Joslin and Kelleher, JJ.
ZONING. Special Permit. Prerequisites. Absence of Competent Evidence. Special permits were limited to cases where board first determined that proposed use would serve the general welfare and would not substantially injure adjoining properties and, where there was no competent evidence upon which board could have premised the prerequisite findings, it lacked authority to act affirmatively on petitioner's application.
CERTIORARI petition to review denial of special permit, heard and petition denied and dismissed, writ quashed, and records ordered returned to board with decision endorsed thereon.
Hinckley, Allen, Salisbury Parsons, Guy J. Wells, William P. Thornton, Jr., of counsel, for petitioner.
John P. Bourcier, Town Solicitor, Frederick R. DeCesaris, Assistant Town Solicitor, for respondent.
This is a petition for certiorari to review a decision of the Zoning Board of Review of the Town of Johnston denying the petitioner's application for special permission to construct in an Industrial E district a building in which it proposed to store and anneal castings incident to its foundry operations. That use, although permitted in an Industrial E district, in this instance required a special permit from the board because the petitioner's premises were located within 300 feet of a Residence District. The writ of certiorari issued and the pertinent records have been certified to this court.
Section IX, B, of the ordinance reads in part:
"B. Special Permit Uses.
In an Industrial E District a building may be erected, altered, or used, and a lot or premises may be used for any of the following purposes, only upon a Special Permit issued by the Zoning Board of Review as provided in Section XVII:
"1. Any of the uses set forth in sub-section (A) hereof located within 300 feet of a Residence District."
Section XVII of the zoning ordinance limits the issuance of a special Industrial E use permit to those cases where the board has first determined that the proposed use will serve the general welfare and will not substantially injure adjoining properties. The record before us contains not even a scintilla of competent evidence upon which the board could have premised the prerequisite findings, and it therefore would have lacked authority to act affirmatively upon petitioner's application. Melucci v. Zoning Board of Review, 101 R.I. 649, 226 A.2d 416; Klowan v. Zoning Board of Review, 99 R.I. 252, 207 A.2d 42; Baker v. Zoning Board of Review, 102 R.I. 134, 228 A.2d 859.
The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the records certified to this court are ordered returned to the respondent board with our decision endorsed thereon.