Newport County Superior Court
For Plaintiff: Sean R. Doherty, Esq.; Daniel Calabro, Jr., Esq.
For Defendant: Andrew M. Teitz, Esq.
Before the Court are Defendants Richard and Ann Tosi's (Defendants) motions to dismiss the criminal charges levied against them by the Town of Tiverton (the Town) for alleged violations of the Town of Tiverton Zoning Ordinance (Zoning Ordinance). The Defendants were originally charged with violating two Zoning Ordinance provisions: art. V, § 1, which establishes the district's required yard setbacks, and art. VI, § 3.b which governs coverage and setbacks relating to accessory structures. The Defendants were also charged with alleged violations of the State Building Code, G.L. 1956 § 23-27.3-113.1, and chap. 18, § 18-56 of the Town of Tiverton Code of Ordinances, which requires that any person first receive a building permit from the building inspector before performing any construction in the Town. In March of 2013, the Defendants were tried before the Town of Tiverton's Municipal Court, established in 1993, pursuant to G.L. 1956 § 45-2-34. Judge Donnelly found them guilty on two counts alleging violations of the Zoning Ordinance and dismissed the remaining charges. The Defendants are now before this Court appealing the convictions. Jurisdiction is pursuant to § 45-2-34.
Facts and Travel
The following facts are taken primarily from the Defendants' memorandum in support of their motions to dismiss. The Defendants own real property in the Town located at 348 Nanaquaket Road. In the spring of 2001, they applied for a building permit from the Town for the construction of a storage shed they wished to build in their backyard. A copy of the permit application indicates that the Defendants wished to place their shed six feet from the rear property line, 350 feet from the left side property line, and 387 feet from the right side property line. (Defs.' Ex. A.) A copy of the permit shows that it was issued on March 20, 2001 and required the Defendants to "begin work on said building within SIX MONTHS from the date hereof and prosecute the work thereon to a speedy Completion." (Defs.' Ex. B.)
Defendants assert that they began work on the shed within the requisite six months, but due to personal difficulties, ceased construction for a number of years. Construction resumed in the summer of 2009. In the fall of that same year, after much of the construction was completed, the Town's building inspector, Gareth Eames, visited the property and informed the Defendants that their building permit was too old and that they needed to apply for a new permit. Two days later, on October 15, 2009, the Defendants did just that. They applied to Mr. Eames' office, but were told the application required a new site plan and report of the soil strength. Defendants complied and submitted these reports to the building inspector. On November 17, 2009, their application was denied. In the denial letter, Mr. Eames stated that the shed was an "illegally constructed free standing accessory structure" which had "been placed closer to the side line setback than is currently allowed in a R80 zoning district." The letter also instructed the Defendants to take down the shed. In response, the Defendants petitioned the Tiverton Zoning Board of Review (Zoning Board) seeking a variance that would allow them to keep their shed.
The Zoning Board held two public hearings on the application: one on January 6, 2010 and the other on February 3, 2010. Portions of the transcripts from those hearings show that Mr. Tosi relied primarily on the fact that he had, in 2001, applied for and received a building permit for the shed to be built on the exact location which it still stands today. (Tr. 4-5, Jan. 6, 2010.) However, Mr. Tosi was unable to locate and present the building permit to the Zoning Board; the original permit's whereabouts were unknown and, at the time of the Zoning Board hearing, Mr. Tosi had not yet acquired the copy of the permit that he presented as evidence to this Court. He did attempt to bolster his claim by providing the Zoning Board with a copy of the canceled check that paid for the permit. Id. A review of the transcript reveals that the Zoning Board members did not think the canceled check was legally adequate to prove the existence of the permit. Id. at 8. When asked if he had any way of "tracking down" the permit, Mr. Eames represented to the Zoning Board that permits issued in 2001 were not put into a computer system, and that he was unable to find a print copy anywhere. (Tr. 4, Feb. 3, 2010.) Under oath, Mr. Eames informed the Zoning Board that the permit "doesn't exist." Id. at 5. He testified that he searched his files and records and that "there's no record of a building permit for this structure having been issued." Id. The Zoning Board members expressly acknowledged that if that original building permit had in fact been issued, then they "would almost have to grant [the Tosis] relief now." (Tr. 7, Jan. 6, 2010.) The Zoning Board continued, however, to note that "if that building permit didn't specify where the structure was to be, then we would have to take this as a whole new variance request." Id.
Ostensibly based on Mr. Eames' testimony and Mr. Tosi's inability to present the building permit, the Zoning Board denied the application for a dimensional variance. (Tr. 33, Feb. 3, 2010.) Mr. Tosi appealed the Zoning Board's decision to this Court, and a civil action in that matter is still pending.
In their memorandum, Defendants assert, but offered no evidence to prove, that in August of 2010, Mr. Eames attempted to initiate criminal proceedings against the Defendants because the shed was still standing. Defendants claim that Mr. Eames personally served them with an invalid Tiverton Municipal Court criminal summons. Defendants state that around September of 2010, Judge Nebergall refused to hear the case. Defendants provided no factual reason for this refusal but suggest that it was based on the invalidity of the service and complaint.
In October of 2012, approximately two years later, Mr. Eames reinitiated the criminal proceedings. By 2012, Judge Nebergall had been replaced by Judge Donnelly. Defendants argue here that the unexplained period of time between these two attempts was an effort to "Judge Shop." However, once again, aside from Defendants' assertions in their memorandum, there is no factual support in the record for this allegation. On October 3, 2012, Mr. Eames served Mr. Tosi with what the Defendants argue was another deficient summons. Defendants stress that that case was also dismissed by the court, for what the Defendants claim was insufficient service of process.
In March of 2013, Mr. Eames again filed criminal complaints against the Defendants.The record contains four complaints from March 2013 and eight summonses. All the complaints contain varying combinations of allegations for violations of the following provisions: Tiverton Zoning Ordinance art. V, § 1; Town Code of Ordinances ch. 18, § 18-56; § 23-27.3-113.1; and, Tiverton Zoning Ordinance art. VI, § 3.b. Each of the four complaints contains a different offense date. The offense dates are reported as: October 14, 2009; November 17, 2009; April 8, 2010; and, July 22, 2011.
As the parties prepared for trial in the Municipal Court, Defendants sent a discovery request to the Town. In response, the Town delivered to the Defendants a copy of the building permit file from 2001; Defendants claim that the file contained the 2001 completed application form. The Defendants were tried before Judge Donnelly on March 18, 2013. Mr. Eames testified at trial and, when confronted with the permit application, confirmed that the permit number on the application and fee amount on the canceled check evidenced that a permit had been issued. Judge Donnelly found the Defendants guilty on two counts: violations of Zoning Ordinance art. V, § 1 and Zoning Ordinance art. VI, § 3.b. Judge ...