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Mike's Professional Tree Service, Inc. v. Zoning Board of Review of Town of Coventry

Superior Court of Rhode Island

March 8, 2016

MIKE'S PROFESSIONAL TREE SERVICE, INC.
v.
THE ZONING BOARD OF REVIEW OF THE TOWN OF COVENTRY, RUSSELL LACAILLADE, VIRGINIA SOUCY, JEANNE KOSTYLA, JOHN D'ONOFRIO, AND DENISE DEGRAIDE, in their capacities as MEMBERS OF THE ZONING BOARD OF REVIEW OF THE TOWN OF COVENTRY, RHODE ISLAND

Kent County Superior Court

For Plaintiff: Albert E. Medici, Jr., Esq.

For Defendant: Dianne L. Izzo, Esq.

DECISION

GALLO, J.

The matter before the Court is Plaintiff Mike's Professional Tree Service, Inc.'s (Plaintiff) appeal of the denial by the Zoning Board of Review of the Town of Coventry, Rhode Island (Defendant or Zoning Board) of its application for a special use permit. Westwood I & II, Inc. (Westwood), an adjacent property owner, has intervened in opposition to Plaintiff's appeal. Jurisdiction in this Court is pursuant to G.L. 1956 § 45-24-69.

I Facts and Travel

The controversy in question concerns an industrial condominium located at 75 Airport Road in the Town of Coventry, Rhode Island-specifically, Unit 3 of that condominium, owned by Plaintiff. The unit of the condominium is a large lot, consisting of roughly sixteen acres of land, designated as Lot 1 on Plat 44 of the Coventry Tax Assessor's Map. The lot is zoned as an Industrial-I zone. Plaintiff currently operates a mulch-making business on the property and seeks a special use permit for the purpose of adding firewood production and sales to its operations at the location.

The Zoning Board conducted two public hearings on the matter, the first on July 10, 2013 and the second on August 7, 2013. At the July 10 hearing, Michael Baird, the principal of Plaintiff, testified in favor of the application; Plaintiff also presented an expert witness, Timothy Behan, an engineer. Donald Morash, a real estate broker and appraiser, further testified to his opinion on the prospective impact to abutters of the proposed use. Present and objecting to the application was John Assalone, a principal of Westwood and acting on its behalf, who testified himself, as well as proffering the testimony of Gerald Roch, an appraiser. Westwood also put forward Thomas B. Nicholson, an engineer, who testified to his opinions regarding the application for a special use permit. At the August 7 hearing, a member of the Coventry Conservation Commission presented testimony regarding the Commission's concerns about the application. Also discussed on this date was a letter, dated July 16, 2013, from David A. Godin, the fire marshal of the Central Coventry Fire District, articulating his concerns regarding fire protection at the site of the proposed special use.

Following these hearings, the Zoning Board voted unanimously to deny the application. A written decision was issued on August 30, 2013; this decision was amended and refiled on September 17, 2013. The matter was not yet closed, however. In correspondence dated December 17, 2013, Fire Marshal Godin revised his opinion to note that Plaintiff has addressed all concerns raised in his July 16 letter. Plaintiff brought a motion before this Court seeking to supplement the Zoning Board's record. The motion was granted on April 15, 2015, and the matter was remanded to the Zoning Board. The Zoning Board did not, however, alter its denial of the application, and the matter is now before the Court on appeal from that decision.

II Standard of Review

The relevant standard of review for the Court is provided by statute:

"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:
"(1) In violation of constitutional, statutory, or ordinance provisions;
"(2) In excess of the authority granted to the zoning board of review by ...

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