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Imperial Investments, Inc. v. Frezza

Superior Court of Rhode Island

March 22, 2016



For Plaintiff: Alfred A. Russo, Jr., Esq.

For Defendant: Joseph R. Ballirano, Esq.



Plaintiff, Imperial Investments, Inc. (Plaintiff or Imperial) appeals from a July 26, 2012 Decision (Decision) of the Town of Johnston Zoning Board of Review (Defendant, Zoning Board or Board), denying Imperial's application for two dimensional variances. Plaintiff contends that the Zoning Board's Decision was arbitrary and capricious and clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record. Defendant acknowledges that the Decision was insufficient because it did not include the dimensional variance factors under G.L. 1956 § 45-24-41, but requests that the Court remand the case to the Zoning Board to reissue a Decision using the standard in § 45-24-41. The Court exercises jurisdiction pursuant to § 45-24-69. For the foregoing reasons, the Court remands the matter to the Zoning Board.


Facts and Travel

Plaintiff owns Plat 15, Lot 29, located on Ostend Street in the Town of Johnston in an R-15 zone.[1] The local zoning ordinance allows single family dwellings on lots with a minimum of 15, 000 square feet and 100 feet of frontage. Hr'g Tr. 2:23-3:1, June 28, 2012 (Tr.); Town of Johnston Zoning Ordinance § 340-9, Table of Dimensional Regulations. The subject parcel, 12, 780 square feet, fails to meet the minimum lot requirements for constructing a single family dwelling. Id. Additionally, Plaintiff proposes to erect a structure with 90 feet of frontage, 10 feet less than the requirements. Id. Plaintiff filed an application for two dimensional variances, seeking relief of 2220 square feet from the lot size requirement and 10 feet from the frontage requirement. Certified Record, Apr. 28, 2012 Appl.

The Zoning Board conducted a hearing on the application on June 28, 2012. Tr. 1:1. Plaintiff's attorney presented an opening statement explaining that Imperial required a variance because of the unique characteristics of the land and that granting the dimensional variances would not alter the general character of the surrounding area. Id. at 3:2-14. The Plaintiff also submitted maps of the neighborhood which depicted existing homes, over half of which were built on undersized lots. Id. at 3:15-4:15. Imperial's attorney responded to questions addressed to him by the Zoning Board, including inquiries pertaining to the subject lot and to Plaintiff's specific development plans. Tr. 2:9-16, 5:14-9:8.

In addition, both abutters and town officials testified at the hearing. Abutters Norma Palmieri, Cindy Sousa, and Rose Marcaccio spoke in opposition to the application. They expressed concerns that new construction would exacerbate a preexisting water and rodent problem that plagued the neighborhood. Tr. 20:16-21, 21:1-7, 22:6-24:2, 24:11-25:16. Also, Bernard Nascenzi, the Building Official for the Town of Johnston, testified that the property included wetlands. Id. at 10:11-13.

In its application, Imperial included an Insignificant Alteration Permit from the Department of Environmental Management (DEM), which the previous owner had acquired, giving that owner permission to build on the wetlands. Tr. 10:17-13:2. The permit issued to the predecessor in title stated that the DEM inspected the site and found that alterations to freshwater wetlands would be necessary to build on the property. Certified Record, Apr. 28, 2012 Appl., Insignificant Alteration - Permit. The permit granted the previous owner permission to build by issuing an insignificant alteration as long as certain conditions were met. Id. The permit included these two provisions pertinent to Plaintiff's application for a variance: The DEM permit was nontransferable to subsequent owners; and it would expire four years after it was issued. The four year permit had expired prior to the date of Imperial's appearance before the Zoning Board. Id. at 11:16-12:24. Imperial's attorney suggested that the Zoning Board could approve the application contingent upon the Plaintiff obtaining DEM approval. Tr. 14:9-11. Imperial represented to the Zoning Board that because Imperial did not yet own the property, it could not seek transfer or reapply for a DEM permit, but would do so. Tr. 17:22-24. In response to counsel's suggestion that the Zoning Board could grant the application conditioned on receiving proper DEM approvals, Board Member Pilozzi replied "I don't do that, sir. I don't look in a crystal ball." Id. at 14:12-13.

Before concluding the hearing, Applicant's counsel made an uninterrupted closing statement in which he again addressed the dimensional variance requirements by stating that Imperial's owner is a respected builder who seeks the least relief necessary to construct a home. Tr. 31:5-19. The Zoning Board asked whether anyone else wanted to comment on the record before the Board voted, and counsel for Imperial declined to offer any further evidence or argument on behalf of his client. See id. at 28:24; 30:15-16.

The Zoning Board issued its written Decision on July 26, 2012. The Zoning Board denied the application finding that Plaintiff lacked standing to obtain the relief sought without the proper DEM permit. Johnston Zoning Board of Review Decision File 2012-24 (Ostend Street) dated July 26, 2012 and posted July 31, 2012. ...

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