dissenting. I am unable to concur with the majority’s conclusion that the record in this cause should be remanded to the respondent board for reconsideration of the appeal from the building inspector and authorizing the board to receive additional evidence by way of another hearing, after due notice, if such further hearing seems advisable.
Although the record is admittedly meager and sparse, it is in my opinion sufficiently informative to establish that *470.petitioner is the owner of a parcel of land located in a business D district within which an office building is a permitted use, and that petitioner applied to. the building inspector -for a permit, to construct such a building as a matter of right.
Further it seems clear from the board’s decision that it overruled the building inspector because, notwithstanding that the building sought to be erected was authorized by the ordinance, in the judgment of tire board such a building would be adverse to the public health, safety and welfare. However, a building permit that has been issued by the building inspector for an authorized use may not be recalled by a zoning board by reason of such a determination. In Ralston Purina Co. v. Zoning Board, 64 R. I. 197, this court in passing on that question stated at pages 202 and 203:
“It is, however, further argued, in support of the board’s decision, that there w'as a sound discretion vested in the board, in the interest of the public health ¡and the general welfare, to grant or deny the petitioner’s application, and that, after weighing carefully all the facts and circumstances appearing before it, the board came to' a decision which cannot be considered arbitrary or unreasonable. In our opinion the board has no such general discretionary power as is here claimed.”
Continuing, we stated:
“The enabling acts, P. L. 1922, chap. 2299, as amended by P'. L. 1925, chap. 746, authorized the town council of Westerly to enact a zoning ordinance for the purpose of promoting the health, safety, morals or the general welfare of that community. The town council passed the ordinance now under consideration and presumably, in establishing districts, uses, areas, exceptions and other like matters, exercised the discretion vested in it by the enabling acts so as to carry out the purpose expressed therein. The zoning board, however, is merely a body appointed by the town ■council, under the provisions of the enabling 'acts and *471of the ordinance, to assist in administering such ordinance.Francis A. Manzi, for petitioner. John P. Boarder, Town Solicitor, for respondent,. Christopher T. DelSesto, Jr., for Pike Realty -Company.
“All the powers of such board are derived from the enabling acts 'and the ordinance and must be found therein. An examination of such acts and of the ordinance shows that only in passing upon exceptions to and variations from the- provisions of the ordinance, including .the matter of special permits, is the board given any such discretion as is now urged ,on it® behalf.”
There are, of course-, the proceedings pending in the superior -court which have resulted, we are advised by all parties, in enjoining the instant petitioner from going forward with the construction of the proposed office building pending a -determination of the issue- before that court even though the decision of the board is quashed in these proceedings.
As pointed out in the majority opinion the plaintiff in the superior court cannot proceed th-er-e with the question it has raised as to the validity of a subdivision until there is finality here.
It seems to- me, therefore-, that the validity of the building inspector’s issuance- of the building permit should -be resolved with finality 'here. So- for these- reasons I agree that the decision of the board should be quashed, b-ut disagree that the cause should be remanded for further proceedings.