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Shelter Cove Properties, LLC v. Town of Charlestown Zoning Board of Review

Superior Court of Rhode Island

April 28, 2015

SHELTER COVE PROPERTIES, LLC, Plaintiff/Appellant,
v.
TOWN OF CHARLESTOWN ZONING BOARD OF REVIEW, MICHAEL J. RZEWUSKI, RONALD CROSSON, RAYMOND DRECZKO, JR., RICHARD FRANK, AND AMANDA MAGEE, in their Official capacities only as Members of the Zoning Board of Review of the Town of Charlestown, Defendants/Appellees, and TOWN OF CHARLESTOWN, Intervenor. TOWN OF CHARLESTOWN, Plaintiff/Appellant,
v.
TOWN OF CHARLESTOWN ZONING BOARD OF REVIEW and SHELTER COVE PROPERTIES, LLC, Defendants/Appellees.

For Plaintiff: John F. Kenyon, Esq.

For Defendant: Robert E. Craven, Esq.; Peter D. Ruggiero, Esq.

DECISION

TAFT-CARTER, J.

Before this Court is an appeal from a decision of the Town of Charlestown Zoning Board of Review (Zoning Board). The Town of Charlestown appealed the Zoning Board's decision, finding that Shelter Cove Properties, LLC's (Shelter Cove) use of commercial property was a legal pre-existing, nonconforming use.

The matter was remanded to the Zoning Board by this Court on July 3, 2013. After remand, the Zoning Board determined that Shelter Cove's use of the property was a legal nonconforming use and made additional findings of fact that Shelter Cove had decreased the parking on the property. Shelter Cove filed a timely appeal.[1] Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I Facts & Travel

Shelter Cove is the owner of property located at 523 Charlestown Beach Road, identified as Assessor's Plat 9, Lot 131, Charlestown, Rhode Island (the Property). (Pl.'s App. 2, Appl. for Appeal, July 20, 2011.) Shelter Cove operates a marina and leases a portion of the Property to lessees who operate a restaurant and kayak center. (Pl.'s App. 11 at 11:1-15.) An additional portion of the Property is used for commercial parking. Id. at 11:15-19.

On or about July 1, 2011, the Charlestown Zoning Official issued a Notice of Violation to Shelter Cove, citing Shelter Cove for violating Article VI, Section 218-36 of Charlestown's Zoning Ordinance (Zoning Ordinance). That section of the Zoning Ordinance governs the permissible uses of property in a C2 zoning district. (Pl.'s App. 1, Letter from Joseph L. Warner Jr., Building and Zoning Official, to Shelter Cove Properties, LLC, c/o Bruce Gardner, July 1, 2011.) The violation cited Shelter Cove for operating a commercial parking lot without a special use permit. Id. Shelter Cove appealed the Notice of Violation to the Zoning Board, alleging that the commercial parking lot was a legal nonconforming use and therefore permitted. (Pl.'s App. 2, Appeal Form.)

The Zoning Board held a public hearing on the appeal on September 20, 2011. At the hearing, the manager of Shelter Cove, Mr. Richard Lavigne, testified as to the operations of the marina, as well as the parking on the Property. (In re Petition #1228 Shelter Cove Properties, LLC, Town of Charlestown Zoning Board of Review Tr. 10-20, Sept. 20, 2011.) A patron of the marina, Mr. Ronald Mouchon, also testified to Shelter Cove's history of commercial parking on the Property. Id. at 21-23. Mr. Joseph Warner, a building official, further testified to the parking availability on the Property. Id. at 26-44. After reviewing the evidence presented, the Zoning Board concluded that the commercial parking on the Property was a legal pre-existing, nonconforming use.

The Town of Charlestown filed a timely appeal of the decision to this Court on October 14, 2011. The Court issued a decision and determined that there was "relevant" evidence of the existence of nonconforming use of the property as a commercial parking lot; however, the Court determined that the Zoning Board "failed to state sufficient findings of fact to support its decision." Id. at 7. Thus, the case was remanded "for further proceedings to determine whether the use of the property for commercial parking had been altered, intensified, or expanded since the implementation of the zoning regulation and to submit a decision with the appropriate findings of fact." Id.

After remand, the Zoning Board held a meeting on March 18, 2014. Shelter Cove was not notified of the meeting in enough time to send the required notice to the abutters. (Pl.'s App. 18, Town of Charlestown Zoning Bd. of Review Open Meeting and Public Hearing, Mar. 18, 2014.) As a result, the matter was continued to April 15, 2014, and notice was sent. At the meeting on April 15, 2014, counsel for Shelter Cove asked the Zoning Board to reopen the public hearing. (In re Petition #1228 Shelter Cove Properties, LLC, Town of Charlestown Zoning Board of Review Tr. 7-8, Apr. 14, 2014.) The Zoning Board determined that it was unnecessary to hold a hearing. Id. at 26-28. Subsequently, zoning board member Mr. Raymond Dreczko (Mr. Dreczko) read into the record findings of fact, based on the previous hearing of September 20, 2011. Id. at 18-21. The Zoning Board voted 4 to 1 to support Mr. Dreczko's findings that the parking lot was a legal nonconforming use and that the amount of parking had decreased since the implementation of the zoning regulation. Thereafter, Shelter Cove filed the instant appeal.

On appeal, Shelter Cove contends that (1) the Zoning Board misconstrued the record in adopting Mr. Dreczko's findings of facts; (2) the Zoning Board erred by failing to open the April 15, 2014 meeting to a public hearing; and (3) the Zoning Board violated the Open Meetings Act by holding an executive session prior to the March 18, 2014 meeting.

II Standard of Review

The Superior Court's review of a zoning board decision is governed by ยง ...


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