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Clarke v. Morash

Superior Court of Rhode Island, Kent

August 22, 2016

STEVEN CLARKE, TRUSTEE, PATRICIA SMITH and BRUCE SMITH
v.
DONALD G. MORASH, JR., BEVERLY J. STURDAHL, RICHARD K. CORLEY EVERETT J. O'DONNELL, and JULIE A. FINN, in their capacity as MEMBERS OF THE ZONING BOARD OF REVIEW OF THE CITY OF WARWICK

         Kent County Superior Court

          For Plaintiff: Michael J. McEntee, Esq.

          For Defendant: Peter D. Ruggiero, Esq.

          DECISION

          Rubine, J. JUSTICE/MAGISTRATE:

         Before the Court is an appeal of a decision from the Zoning Board of Review of the City of Warwick, Rhode Island (the Zoning Board). Appellants Steven Clarke, Trustee, Patricia Smith, and Bruce Smith (collectively, Appellants) ask the Court to set aside the Zoning Board's decision concerning property at 108 Airport Road in the City of Warwick. For the following reasons, the Court vacates the Zoning Board's decision and remands the case for further proceedings.

         I

         Facts and Travel

         Appellants own the 108 Airport Road property that is the subject of this controversy. The property contains two buildings: a residence and a garage. Appellants operated a home business out of the garage in conformity with applicable residential zoning ordinances. But, in 2014 they sought a use variance from the Zoning Board, seeking to convert the garage into a full-time office. At the time of the 2014 variance petition, Appellants resided in the property. After a hearing on the matter in which testimony and evidence was presented, both from Appellants and from abutting landowners, the Zoning Board issued a decision approving the use variance. Zoning Board R. Ex. C2, Decision of the Zoning Board, Petition #10121 (May 20, 2014) (hereinafter 2014 Decision).

         In 2015, Appellants petitioned the Zoning Board for an amendment to the 2014 approval, to approve an alternative parking plan. In all material respects the instant application is identical to the mixed-use request in 2014, save for the alternative parking schematic. Appellants also no longer reside on the premises and seek to rent the residential property, but this does not appear to alter the mixed use approved in 2014, as it remains split between residential and commercial uses. Apparently, the Zoning Board used this new application to revisit the conclusion reached in 2014, and the result was to deny the mixed use that had previously been approved. The Zoning Board treated this new application as a petition for a new use variance and voted to deny it, resulting in the denial of the previously-approved mixed use at the 108 Airport Road property.

         As it was not their intention to seek reversal of the 2014 Decision, Appellants ask the Court to reverse or vacate this 2015 decision.

         II

         Standard of Review

         The Court's review of decisions from a zoning board is limited as prescribed by statute:

"(d) 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 ...

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