I dissent from that part of the court's opinion which holds that the board of review did not abuse its discretion in denying petitioner permission to use the cement driveway on lot 66 in connection with the conduct of his dairy. Such denial was inconsistent with the board's prior decision granting the petitioner permission to use a strip of land not more than nine feet wide and immediately adjacent to the extension of the dairy building on lot 66. See Fiske v. Zoning Board of Review,70 R.I. 426.
In so far as the use of such lot for the purpose of a driveway in connection with the dairy business is concerned, the only difference between the permitted use and the nonpermitted *Page 227 use is merely a matter of distance. If the use of the existing cement driveway was permitted it would bring the vehicular traffic in and out of the lot in connection with the dairy about 50 feet nearer to the homes of the objecting landowners situated east of lot 66. If a driveway for use in connection with the dairy building is to be permitted at all on that lot, this fact would hardly constitute a reasonable ground of discretion for the board to deny petitioner's request that he be permitted to use the existing cement driveway instead of building a new one on the nine-foot strip. Indeed it is difficult, in such circumstances, to find anything more than caprice as a basis for the board's denial of petitioner's request. Had it not, in its prior decision, granted petitioner a right of access into the lot over the nine-foot strip it would perhaps not be so clear that the board had abused its discretion in denying petitioner's present application; but in view of such prior decision there cannot, in my opinion, be any doubt of such abuse, at least on the record here.
When, in considering petitioner's first application, the board undertook to decide whether he should be entitled to use a part of lot 66 in connection with the conduct of his dairy in the extension of the dairy building which the board had permitted on that lot, it exhausted its discretion. Having once found, as it must have under the statute and ordinance, that such a use of lot 66 would not be contrary to the public interest and that a literal enforcement of the ordinance would result in unnecessary hardship to the petitioner, the board could not reasonably deny him the right to use the existing driveway unless it could be shown that, merely because the cement driveway was 50 feet nearer to the land of some of the objectors to the east of lot 66, such use would be contrary to the public interest to a marked degree. The evidence before the board falls far short of showing such an adverse effect upon the public. The effect upon the sensibilities of some nearby landowners is of no consequence. It is the public interest that must be shown as adversely affected, and that in a marked degree. *Page 228
This court has given zoning boards of review a guide to follow in passing upon applications of the kind now before us. InHefferman v. Zoning Board of Review, 50 R.I. 26, at page 29, it said, construing the statute authorizing boards of review to grant an exception or variance, "The expressions `contrary to the public interest' and `unnecessary hardship' must be given a reasonable interpretation. As the provisions of the ordinance represent a declaration of public interest, any variance would in some measure be contrary thereto. In this connection the words `contrary to the public interest' should be interpreted to mean what in the judgment of a reasonable man would unduly, and in a marked degree conflict with the ordinance provisions. As to the words `unnecessary hardship,' it may be said that each of the restrictions of the ordinance upon what would otherwise be a lawful use of one's property might be termed a `hardship' to the owner. We regard the term `hardship', as used in the ordinance, to have some reference to the degree of the interference with ordinary legal property rights, and to the loss or hardship which would arise therefrom. We think the expression should be interpreted to refer to a `hardship' peculiar to the situation of the applicant, which is of such a degree of severity that its imposition is not necessary to carry out the spirit of the ordinance, and amounts to a substantial and unnecessary injustice to the applicant."
Tested by that standard the board's denial of the petitioner's application in the case at bar is, in my opinion, without any reasonable basis and is, therefore, arbitrary and capricious. On the record here it is obvious that petitioner's use of the existing driveway would in no sense be contrary to the public interest in a marked degree and it is equally obvious that to build a new driveway on the nine-foot strip would be an unnecessary hardship on the petitioner and would not be called for in order to carry out the spirit of the zoning ordinance. The board's denial of petitioner's application for permission to use the existing cement driveway should, therefore, be reversed. *Page 229
ON MOTION FOR REARGUMENT
JANUARY 21, 1947.