County Superior Court
J. Gianfrancesco, Esq.
For Defendant: Richard A. Sinapi, Esq.
matter is before the Court on Plaintiffs' appeal of the
August 1, 2012 decision rendered by the Town of Johnston
Zoning Board of Review, upholding a Notice of Violation
issued by the Town of Johnston Zoning Officer, citing
Plaintiffs for violating § 340-25(C) of the Johnston
Zoning Code. Plaintiffs seek reversal of the Zoning
Board's decision. Jurisdiction is pursuant to G.L. 1956
of the Dispute
live at 61 King Street,  Johnston, Rhode Island comprising 10,
890 square feet. Intervenors Douglas and Barbara Magness
(Intervenors) live at 59 King Street, Johnston, Rhode Island
and are adjacent neighbors to Plaintiffs.
lengthy dispute started back on February 7, 2006, when
Intervenors contacted the Johnston Police Department and
filed a complaint concerning light pollution. (Johnston
Police Report # 06-306-OF, Feb. 7, 2006.) Intervenors
explained to the responding officers that Plaintiffs were in
violation of the town ordinance because their Christmas
lights prevented Mr. Magness from "getting total
darkness in his den." Id. Intervenors
subsequently dropped their complaint.
summer of 2007, Intervenors filed a zoning ordinance
violation complaint against Plaintiffs contending that
Plaintiffs' lights illuminated their property at night.
In response, Johnston Field Inspector Peter A. Del Ponte (Mr.
Del Ponte) inspected Plaintiffs' property on July 19,
2007. (Field Inspector's Report, July 19, 2007.) Mr. Del
Ponte agreed with Intervenors that Plaintiffs were in
violation of Johnston Zoning Ordinance § 959
(currently§ 340-25.1) and issued a Violation Notice
dated July 30, 2007 requesting Plaintiffs remove the lights
within 30 days or shield the lights from adjacent parcels.
(Violation Notice, July 30, 2007.) In a letter dated August
27, 2007, Mr. Del Ponte explained he reinspected the property
and concluded that Plaintiffs were still in violation of
ordinance § 959. (Official Notice, Aug. 27, 2007). Mr.
Del Ponte recognized the effort Plaintiffs made in trying to
shield the light from adjacent properties but concluded it
was not sufficient and ordered Plaintiffs to keep their
lights off until they fixed the light to prevent it from
shining on the neighbor's property. Id.
Town of Johnston filed an action in Johnston Municipal Court
against Giovanni Stanziale in CA No. 070911832. On January 2,
2008, Plaintiffs were issued a motion to appear at the
Johnston Municipal Court on February 6, 2009. (Subpoena MC
11832, Jan. 2, 2008.) In an Order dated February 13, 2008,
the Johnston Municipal Court dismissed the action pursuant to
Rule 27A of the Rhode Island Traffic Tribunal Rules
of Procedure (1999). (Order, Feb. 13, 2008.)
on April 21, 2010, Plaintiffs received a Notice of Violation
asserting that Plaintiffs' trellis was an "accessory
structure" located too close to the property line shared
with Intervenors, in violation of Ordinance § 941(G)(7).
(Violation Notice, Apr. 21, 2010.) The Notice of Violation
requested Plaintiffs move the trellis within 14 days.
Id. In a letter dated April 26, 2010, Plaintiffs
agreed to remove the decorative lights from the trellis so
that it would be classified as a vine support rather than an
accessory structure. (Stanziale Letter, Apr. 26, 2010.)
Intervenors built their own trellis, which Plaintiffs claim
is too close to the property line. (Stanziale Zoning
Violation Compl., Aug. 23, 2010). Plaintiffs filed two zoning
complaints-on August 23, 2010 and May 21, 2012-alleging that
Intervenors' trellis violated the Town of Johnston Zoning
Ordinance § 941(G)(7)(c) (currently § 340-25(C))
for accessory structures. Id.; Stanziale Zoning
Violation Compl., May 21, 2012.
on January 13, 2011, Plaintiffs received another Notice of
Violation from the Zoning Officer, Mr. Nascenzi, contending
that Plaintiffs replaced the decorative lighting on their
trellis violating the April 26, 2010 agreement and §
941(6)(7)(c) (currently § 340-25(C)) for accessory
structures. (Notice of Violation, Jan. 13, 2011.) Plaintiffs
were given fourteen (14) days to remove the lights to come
into compliance. Id. Additionally, Plaintiffs were
required to appear at Johnston Municipal Court on February
23, 2011, which was continued to March 2, 2011, for violating
the accessory structure ordinance in Johnston. (Town of
Johnston Violation Notice, Feb. 3, 2011; Letter re: Violation
# 1102041, Feb. 14, 2011.) At the March 2, 2011 hearing, the
Municipal Court dismissed the action because of procedural
deficiencies in the Violation Notice. (Zoning Bd. of Review
Hearing Transcript (Tr.) 4:13; 4:17-22, July 17, 2012.)
the Assistant Johnston Town Solicitor hosted a meeting on
March 17, 2011 with respect to the disputed trellis, which
included the Plaintiffs, Intervenors, their attorneys, and
Mr. Del Ponte. At this point, Plaintiffs had erected a
six-foot tall fence between their property and
Intervenors' property. Tr. 7:8-13. Plaintiffs claim to
have offered to build an eight-foot fence, but Intervenors
declined. Tr. 7:8-19. At the meeting, the parties came to an
agreement that Plaintiffs could display a single strand of
blue LED lights on the trellis from dusk until 10:00 p.m.
during the months of April to October. Tr. 25:1-11.
Additionally, Plaintiffs agreed to shield or redirect any
flood lights away from Intervenors' property. The
Assistant Town Solicitor determined that the Intervenors were
estopped from filing complaints in regards to Plaintiffs'
after the March 17, 2011 meeting, Plaintiffs constructed a
new trellis on their property. The original disputed trellis
consisted of two posts and was made of PVC pipe. The newly
constructed trellis increased to four posts and is made of
wood. Plaintiffs contend that that this new trellis is both
in the same location and the same size as the original PVC
pipe version; thus, it should be considered the same trellis.
On the other hand, Intervenors contend that the structure is
now affixed to the ground and has a lattice roof with lights.
As such, Intervenors aver that the new trellis is much larger
and in a new location and therefore should be considered a
separate and new trellis.
15, 2012, Mr. Nascenzi issued Plaintiffs a zoning violation
because he determined the trellis to be a
"structure" placed too close to the property line.
The Town of Johnston Zoning Ordinance 941 § 340-25
states that structures cannot be placed less than five feet
from an abutting property line. (Notice of Violation, May 15,
2012.) Plaintiffs were given 14 days to remedy the situation
and notified of their right to appeal the violation.
Id. In response, Plaintiffs sent the Zoning Officer
a Notice of Appeal on May 23, 2012 in accordance with §
340-129(A) of the Johnston Zoning Code.
appeal was scheduled to be heard before the Town of Johnston
Zoning Board of Appeal (Zoning Board) on June 28, 2012, but
was continued until July 17, 2012. The sole issue at the
hearing was to determine whether the violation notice issued
by Mr. Nascenzi on May 15, 2012 classifying the new trellis
on Plaintiffs' property as an accessory structure located
too close to the property line was proper. Tr. 9:22-10:3;
18:4-13. The following people testified at the hearing:
Plaintiffs' attorney, Mr. Nascenzi, Mr. Del Ponte, Mr.
Stanziale, Intervenors' attorney, the Town of Johnston
City Solicitor, and Abutter Steven Finn (Mr. Finn). The
Zoning Board also had before it multiple pictures of the
three trellises referenced in the hearing.
hearing, Plaintiffs' counsel described the trellis at
issue and reviewed the history of violation notices. Tr.
3:4-9:1. Specifically, Plaintiffs contend that the "new
trellis" is merely made of wood, but is the same
dimensions in width and height as the last trellis; thus, it
is no different than the other trellis. Tr. 6:7-13.
Plaintiffs' attorney contends that because this same
trellis has already been subject to multiple violations that
were litigated in Court and ultimately dismissed, the Town of
Johnston should not be able to continue to object to the
trellis. Id. at 23:4-12. Moreover, Plaintiffs argue
that there is a due process problem with the Town of Johnston
Ordinance not having a definition of accessory structure.
Nascenzi explained that he determined that the new trellis is
of different dimensions, is larger, made of wood, and
consists of four legs rather than two, which makes it a
completely separate trellis from the other violations. Tr.
8:19-9:9. He further testified that because of these
characteristics, he determined the trellis to be an accessory
structure that was not in conformance with the Zoning
Ordinance requiring structures to be at least five feet from
the property line. Id. at 11:17-12:4. Mr. Nascenzi
additionally explained that although there is no definition
for "accessory structure" in the Town of Johnston
Zoning Ordinance, he used the separate definitions for
"accessory" and "structure" to interpret
the meaning of the Ordinance. Tr. 12:20-13:11; 14:20-15:9
(definition of structure and accessory). He also provided the
definition of "fence" to the Zoning Board, but the
Zoning Board and Mr. Nascenzi agreed the trellis cannot be
considered a fence. Tr. 17:2-13.
Ponte, the Enforcement Officer, agreed with Mr. Nascenzi that
this new trellis was a separate and different one from the
trellis involved in the previous dispute. Tr. 9:22-10:3. Mr.
Del Ponte further opined that Plaintiffs' ...