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Stanziale v. Town of Johnston

Superior Court of Rhode Island

July 5, 2016

GIOVANNI STANZIALE and PRISCILLA STANZIALE, Plaintiffs,
v.
TOWN OF JOHNSTON, JOHNSTON ZONING BOARD OF REVIEW, BERNARD FREZZA, ANTHONY PILOZZI, JOSEPH ANZELONE, RICHARD FASCIA, THOMAS LOPARDO, DENNIS CARDILLO, AL COLANNINO, BERNARD NASCENZI AND JOSEPH BALLIRANO, AS MEMBERS OF THE JOHNSTON BOARD OF REVIEW, AND BERNARD NASCENZI, IN HIS CAPACITY AS THE BUILDING AND ZONING OFFICIAL OF THE TOWN OF JOHNSTON, AND DOUGLAS MAGNESS AND BARBARA MAGNESS, Intervenors, Defendants.

         Providence County Superior Court

          For Plaintiff: Anthony J. Gianfrancesco, Esq.

          For Defendant: Richard A. Sinapi, Esq.

          DECISION

          CARNES, J.

         This 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 § 45-24-69.

         I

         Facts

         A

         History of the Dispute

         Plaintiffs live at 61 King Street, [1] 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.

         This 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.

         In the 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[2] § 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.

         The 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[3] of the Rhode Island Traffic Tribunal Rules of Procedure (1999). (Order, Feb. 13, 2008.)

         Thereafter, 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.)

         Subsequently, 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.

         Furthermore, 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.)

         Later, 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' trellis.

         B

         Present Dispute

         Sometime 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.

         On May 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.

         The 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.

         At the 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. Id.

         Mr. 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.

         Mr. Del Ponte, the Enforcement Officer[4], 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' ...


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