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McLaughlin v. Zoning Board of Review for Town of Tiverton

Superior Court of Rhode Island

August 25, 2016

ZONING BOARD OF REVIEW for the TOWN OF TIVERTON, DAVID COLLINS, SUSAN KRUMHOLTZ, LISE J. GESCHEIDT, Chairperson, JOHN R. JACKSON, Vice-Chairperson, RICHARD D. TAYLOR, in their capacities as members of the Zoning Board of Review of the Town of Tiverton, Defendants.

         Newport County Superior Court

          For Plaintiff: Daniel Calabro, Jr., Esq.; Thomas Connolly, Esq.

          For Defendant: Peter Frederick Skwirz, Esq.; Gina A. DiCenso, Esq.


          STONE, J.

         This matter came before the Court on May 25, 2016, when Plaintiff William C. McLaughlin (McLaughlin or Plaintiff) filed a Motion to Vacate this Court's April 7, 2014 Order requiring him to remove a garage from his property, and all subsequent orders derived therefrom, pursuant to Super. R. Civ. P. 60(b). Plaintiff argues that the Court was without jurisdiction and, therefore, the judgment was void. For the reasoning set forth herein, the Plaintiff's Motion is denied.


         Facts and Travel

         McLaughlin owned property located at 1640 Fish Road in Tiverton, Rhode Island (the Property). In 2007, he applied for a building permit to build a forty foot by sixty foot garage on the Property. Subsequently, a permit was issued and the garage was constructed. However- responding to complaints from neighbors-in 2009, the Tiverton Building Official inspected the Property and found that the placement of the garage was in violation of both the front and side yard setback requirements of the Tiverton Zoning Ordinance. See Tiverton Zoning Ordinance, art. V, § 1; art. VI, §§ 1, 3.

         Thereafter, in 2010, Plaintiff filed an application for a variance from the Tiverton Zoning Board of Review, listing himself as the applicant and owner of the offending structure. Following some continuances, a hearing on the application took place on September 7, 2011, and the application was denied the following month. Then, on October 26, 2011, Plaintiff appealed the Tiverton Zoning Board of Review's decision to this Court, and roughly two years later, judgment was entered in favor of the Town.[1] McLaughlin filed a notice of appeal that was denied and dismissed by the Supreme Court on January 14, 2014.

         On March 11, 2014, the Town filed a motion with the Court requesting that Plaintiff remove the garage within ninety days-having lost his application for relief from the Zoning Ordinance. That motion was granted on April 7, 2014 by Order of this Court. Defendant never appeared at the hearing on the motion, nor did he file an objection. Nonetheless, McLaughlin filed a motion to reconsider the Court's April 7 2014 Order, which was heard by the Court and denied in part on May 9, 2014. When the Court asked McLaughlin what he was seeking, he responded that "I'd be happy if you just started the clock over [on the enforcement and imposition of the fine], ninety days [from] today." Indeed, the Court did modify its April 7, 2014 order to the extent that it allowed McLaughlin ninety days to remove the garage, effective May 9, 2014, and the imposition of a two hundred dollar a day fine for each day the garage remained in place beyond the ninety day period. Thereafter, on July 22, 2014, McLaughlin filed for a writ of certiorari to the Supreme Court which was denied on June 12, 2015.

         On November 14, 2014, Defendants filed a motion to hold Plaintiff in contempt of the Court's earlier order for noncompliance. After a continuance, the Town's motion was granted, and, on August 5, 2015, the Court entered an Order fining McLaughlin $69, 300 for failure to comply with the Court's earlier Order. On October 16, 2015, Defendants filed a motion with the Court seeking permission to remove the garage as McLaughlin had still failed to do so. On November 18, 2015, this Court entered an Order giving McLaughlin ninety days to remove the structure on his own; following that time, the Town could remove the structure without any further order of the Court. Following the expiration of those final ninety days, the Town did indeed elect to have the structure removed on March 28, 2016.

         On May 26, 2016, McLaughlin filed a Motion to Vacate pursuant to Rule 60(b). In essence, McLaughlin argued that this Court never had subject matter jurisdiction to order injunctive relief against him and, as such, the Court must now vacate the previous judgment. The Town objected arguing that the Plaintiff's instant motion is either: 1) barred by res judicata; 2) untimely; or 3) simply without merit. The Court heard argument from both parties on June 6, 2016, and indicated that it would issue a written decision on the matter. Decision is herein rendered in favor of the Town for the reasoning set forth in further detail below.


         Standard ...

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