Zuena v. Cranston Zoning Board of Review , 102 R.I. 299 ( 1967 )

229 A.2d 846 (1967)

John ZUENA et ux.
v.
CRANSTON ZONING BOARD OF REVIEW.

M.P. No. 4.

Supreme Court of Rhode Island.

June 1, 1967.

A. William Gelfuso, Richard A. Cappalli, Cranston, for petitioner.

Jeremiah S. Jeremiah, Jr., Asst. City Sol., for respondent.

OPINION

PER CURIAM.

This is a petition for certiorari to review a decision of the respondent board granting the applicants permission to conduct an ice-cream parlor and grille on land located in a single-family residential district. The records certified pursuant to the writ disclose that the permission was premised on findings that the applicants were entitled to an exception to the terms of the ordinance and that the proposed use could be continued as a legal nonconforming use.

The record contains no competent evidence establishing that the proposed ice-cream parlor and grille will not substantially injure the appropriate use of neighboring property. In the light of the provisions of sec. 30-49(m) of the Cranston zoning ordinance (1966) which makes proof thereof a precondition to a grant of an exception, the board conceded in argument before us that it was an abuse of discretion to grant an exception.

The board, however, also considered the application as one to establish a right to a nonconforming use. If that was the basis of its action, it exceeded its jurisdiction. The applicants are precluded on a petition for a variance or exception from asserting a claim of right to a nonconforming use. We do not foreclose them, however, from advancing such a claim in some other appropriate proceeding Winters v. Zoning Board of Review, 80 R.I. 275, 96 A.2d 337, as for example, by way of an application to the building inspector for a building permit. See: Richards v. Zoning Board of Review, 100 R.I. 212, 213 A.2d 814.

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