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Fernandes v. Bruce

Superior Court of Rhode Island

June 10, 2014

GARY FERNANDES
v.
THOMAS BRUCE, in his capacity as Finance Director of the City of Woonsocket; ALAN LECLAIRE, NORMAN FRECHETTE, KATHRYN DUMAIS, RICHARD FAGNANT, RICHARD MASSE, and ALLEN RIVERS, in their capacities as Members of the City of Woonsocket Zoning Board of Review

Providence County Superior Court Procaccini, J.

Michael A. Kelly, Esq.; Joelle C. Sylvia, Esq. For Plaintiff

Joseph S. Larisa, Jr., Esq.; Michael J. Marcello, Esq; Robert G. Flanders, Esq.; Christopher N. Dawson, Esq. For Defendant

DECISION

PROCACCINI, J.

Before this Court is Thomas Bruce, in his capacity as Finance Director of the City of Woonsocket, and the City of Woonsocket Zoning Board of Review's (Zoning Board) (collectively Appellees) Motion to Vacate Decision. Appellees ask this Court to vacate its Decision pursuant to Super. R. Civ. P. 60(b) in order to permit settlement of this matter. For the reasons set forth below, this Court grants Appellees' Motion.

I

Facts and Travel

In 2010, Woonsocket city officials met with Gary Fernandes (Appellant) to negotiate Appellant's purchase of property located at 167 Blackstone Street in Woonsocket, Rhode Island. The property, known as St. Francis House, was a 22, 300 square foot assisted living facility located on a 34, 978 square foot lot owned by the Roman Catholic Diocese of Providence (Diocese). In 2009, the Diocese closed the facility and put the property up for sale. Over time, the lot had fallen off the city's tax rolls and into a state of disrepair. To encourage the Appellant to purchase and revitalize the building, city officials drafted a tax agreement whereby the property taxes would be reduced until 2020 to help offset the cost of rehabilitating the building, including fire code compliance. The Town Council voted to pass this tax agreement on September 20, 2010.

At the time, this lot was located in an R4 zone that allowed multi-family dwelling units but limited the number of units by lot area. The Woonsocket Zoning Ordinances stated the "[m]inimum required lot area shall be six thousand (6, 000) square feet for single–family dwelling, plus four thousand (4, 000) square feet for each additional dwelling unit on the same lot." Woonsocket, R.I. Zoning Ordinances § 7.5-1 (1994). This provision allowed eight units to be constructed on a 34, 978 square foot lot.

On July 9 and July 23, 2012, the Zoning Board held hearings regarding Appellant's third application for a dimensional variance for an additional ten units. The Zoning Board denied the application, and the Appellant appealed the Zoning Board's decision. Subsequently, a hearing was held before the Superior Court, Carnes, J., on November 21, 2012, regarding Appellant's motion to remand this matter to the Zoning Board. Justice Carnes remanded the matter to consider Allen Rivers' (Rivers), a Zoning Board member, alleged conflict of interest and for further proceedings to review and to refine any findings of fact. After nearly two months had passed without a hearing on these issues, Appellant filed a motion to adjudge the Appellees in contempt for failure to comply with Judge Carnes's order and requested enforcement of the prior order. A hearing was then held before the Superior Court, Procaccini, J., on January 24, 2013. At the conclusion of the hearing, the parties agreed to speak with Rivers to ask if he would recuse himself. (Hr'g Tr. 18:22-19:16, Jan. 24, 2013.)

In February 2013, the Rhode Island Ethics Commission (Ethics Commission) issued an opinion regarding the specific question of "whether the Code of Ethics prohibit[ed] [Rivers'] participation in the Zoning Board's reconsideration of [the] variance application . . . ." Op. R.I. Ethics Commission No. 2013-9 (Feb. 2013). The Ethics Commission concluded that:

"a member of the Woonsocket Zoning Board of Review, a municipal appointed position, is not prohibited by the Code of Ethics from participating in the Zoning Board's reconsideration of a variance application, notwithstanding his business associate's past appearance as a remonstrant in that matter and the possibility that his business associate may appear again during the public comment portion of the variance hearing."

Id. The opinion, however, was "strictly limited to the Code of Ethics and provide[d] no opinion as to whether the Woonsocket City Charter, the Woonsocket Code of Ordinances or any other statutes, regulations, rulings or policies prohibit[ed] his participation in this matter." Id. The Ethics Commission also "provide[d] no opinion regarding whether [Rivers], in his quasi-judicial capacity as a member of the Zoning Board, should be disqualified from participating because of bias or prejudice." Id. (citing Champlin's Realty Assocs. v. Tikoian, 989 A.2d 427 (R.I. 2010)).

The Zoning Board eventually held a hearing on March 11, 2013, to consider whether Rivers should recuse himself due to a conflict of interest. (Hr'g Tr. 5:1-6:5, Mar. 11, 2013.) At that hearing, the Zoning Board concluded that Rivers did not need to recuse himself. Rivers then stated his findings of fact in ...


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