Washington County Superior Court WASHINGTON, SC.,
Michael P. Lynch, Esq. For Plaintiff:
John R. Payne, Jr., Esq. For Defendant:
Kristin E. Rodgers
This matter is presently before this Court on an appeal by Appellant Roy Lacroix (Appellant or Lacroix) from the August 22, 2013 decision of the Town of Westerly Zoning Board of Review (the Zoning Board or Appellee). That decision was issued after remand from this Court through which the Zoning Board was ordered to issue findings of fact relative to its prior decision dated March 5, 2008, which had denied Appellant's appeal from a Notice of Violation and Order issued by the Town of Westerly (the Town) Zoning Official on March 29, 2007.
This Court has jurisdiction over this matter pursuant to G.L. 1956 § 45-24-69. For the reasons that follow, this Court reverses the August 22, 2013 decision of the Zoning Board.
Facts and Travel
Appellant is the owner of real property located at 55 Beach Street in Westerly, Rhode Island, designated as Lot 105 on the Assessor's Plat 86 (the Property). The Property is located in a General Commercial Zoning District (GC Zone). Appellant purchased the Property on January 29, 1996 and, since that time, has maintained and rented out first-floor apartments to various residential tenants.
On February 23, 2007, the Town Assistant Zoning Official sent a letter to Appellant seeking to arrange an inspection of the Property as it had recently come to the Town's attention that Appellant had rented first-floor apartments on the Property, which are prohibited in a GC Zone even where there is "mixed residential commercial use." See Town of Westerly Zoning Ordinance (Zoning Ord.) § 260-64A. That inspection was conducted on March 20, 2007 and revealed that two residential apartments on the first floor-identified as #10 and #11-were both occupied. On March 29, 2007, then-Town Zoning Official Anthony Giordano (Giordano) notified Appellant's attorney in writing that the Property was in violation of the Town's Zoning Ordinance, and Appellant would have until April 22, 2007 to remedy this violation before further action was taken by the Town.
On April 26, 2007, Appellant appealed the Zoning Official's March 29, 2007 letter to the Zoning Board. As grounds for his appeal, Appellant asserted that the residential units existed at the time he purchased the Property and that they have been used as such since that time without interruption. Three hearings took place between January and March 2008. At the first hearing, Appellant testified, as did Mary Ventresca (Ventresca), the former proprietor of "Mrs. V's" restaurant located on the first floor of the Property. Appellant testified that when he purchased the Property there was at least one residential unit on the first floor; within a month of purchasing the Property in 1996, units #10 and #11 became residential units. Appellant also testified that he had no knowledge of there being any use violation at the Property at the time he purchased it and that he never received a notice of violation for residential units until the citation at issue in this appeal. Furthermore, Appellant testified that the residential units occupying first-floor apartments were all openly residential and that no occupants ever attempted to hide the fact that they were residential tenants.
Ventresca operated Mrs. V's on the Property from 1979 until approximately 2006. She testified that prior to Appellant's purchase of the Property, several residential apartment units existed in the area, including at least five different units on the first floor of the Property or in neighboring buildings. When asked what the unit next to her restaurant was used for, Ventresca specifically testified, "[t]hat was an apartment, and it was occupied way before Roy LaCroix took over the property." Tr. 12, Jan. 9, 2008.
Appellant argued to the Zoning Board that the current Zoning Ordinance for which Appellant was given notice of violation, § 260-64A, was adopted in October of 1998, after Appellant purchased the Property and long after residential units occupied the first floor of the Property, including units #10 and #11. Appellant had been unaware that the new Zoning Ordinance prohibited first-floor residential use until he sought an application for a variance in late 2006 for additional construction on the Property. The Zoning Board suspended the hearing to investigate how and when residential units came to be at the Property prior to 1998.
The hearing resumed on February 6, 2008, at which time Appellant's attorney was provided a copy of a memorandum prepared by Giordano for the Zoning Board which revealed that in 1977 the Property had been zoned as "B-2, " or Business-2. Giordano Mem. at 1, Feb. 6, 2008. Giordano's memorandum also disclosed that in 1994, prior to Appellant's purchase of the Property, residential use was prohibited in the B-2 zone. Id. The Zoning Board continued the hearing in order for Appellant's counsel to respond to the research and conclusions in Giordano's memorandum.
On March 5, 2008, Appellant presented evidence that two residential units on the Property were granted permits for renovations in 1983 and 1984. Application No. 2372 (Aug. 8, 1983); Application No. 2688 (Apr. 2, 1984). Appellant argued that all residential use was not prohibited in a B-2 Zone, but rather it was detached residential dwellings that were prohibited. Appellant further argued that the B-2 Zone did not address what is now commonly known as mixed-use development, a concept not introduced in the Town until 1998. Appellant asserted, then, that at the time he purchased the Property in 1996, the residential units then existing on the first floor were not prohibited and were legally nonconforming residential units when the Zoning Ordinance was amended in 1998.
The Board disagreed and the appeal from the Notice of Violation and Order was denied by the Zoning Board on March 5, 2008, by a vote of four to one. A copy of the Zoning Board's decision was recorded in the Town's Land Evidence Records on March 24, 2008. The Zoning Board's decision stated, in full, is as follows:
"The Westerly Zoning Board of Appeals on March 5, 2008 denied an Administrative Appeal of the decision of the Zoning Official that Mixed Commercial Residential Use in a "GC" Zone does ...