ALL GRACE DEVELOPMENT CO., LLC; MARIO DIDINO; and ALAN PORPORINO
v.
CITY OF PROVIDENCE ZONING BOARD OF REVIEW; MYRTH YORK, in her Capacity as Chair of the City of Providence Zoning Board of Review; SCOTT WOLF, ARTHUR STROTHER, MARK GREENFIELD, ENRIQUE MARTINEZ, and NURIA CHANTRE, in their Capacities as Members of the City of Providence Zoning Board of Review; and CHRISTOPHER KANE ALAN PORPORINO AND MARIO DIDINO
v.
CITY OF PROVIDENCE ZONING BOARD OF REVIEW; MARC GREENFIELD, in his Capacity as Chair of the City of Providence Zoning Board of Review; and SCOTT WOLF, ARTHUR STROTHER, ENRIQUE MARTINEZ, VICTOR CAPELLAN and AMY CRANE, in their Capacities as Members of the City of Providence Zoning Board of Review; and CHRISTOPHER KANE
For
Plaintiff: William R. Landry, Esq.
For
Defendant: Lisa Dinerman, Esq.
DECISION
VOGEL,
J.
Plaintiff
Alan Porporino brings two appeals to the Superior Court from
decisions rendered by the City of Providence Zoning Board of
Review (Zoning Board). The appeals have been consolidated for
decision. In both cases, the Board faced the issue of whether
Mr. Porporino's vacant lot on Knight Street in Providence
(Lot 31) was a separate buildable lot or whether it had been
merged with the adjacent lot also owned by Mr. Porporino (Lot
276). If the parcels have been merged into one lot, he cannot
obtain a building permit to construct a second structure on
the parcel without first obtaining a zoning variance. Mr.
Porporino claims that the lots are separate and that he
should be issued a building permit to erect a single family
dwelling on Lot 31. In the first appeal, PC-2015-0744, the
Board applied the 1994 Zoning Ordinance for the City of
Providence (1994 Ordinance) and found that the lots were
merged into one. In the second appeal, PC-2015-5574, the
Zoning Board rejected Mr. Porporino's contention that the
lots should not be considered merged under his interpretation
of a subsequent ordinance, the 2014 Zoning Ordinance for the
City of Providence (2014 Ordinance). The Board disagreed and
concluded that Lot 31 remains merged under the provisions of
the 2014 Ordinance. This Court exercises jurisdiction
pursuant to G.L. 1956 § 45-24-69. For the reasons set
forth herein, the Court denies Mr. Porporino's appeals in
both consolidated cases and affirms the decisions of the
Zoning Board.
I
Facts and Travel
On May
6, 2011, John Sahagian sold two parcels of land by a single
warranty deed to Mr. Porporino. The contiguous parcels are
located in an R-3 Zone at 292-294 Knight Street, Providence,
otherwise known as Assessor's Plat 29, Lot 276 (Lot 276)
and 296-298 Knight Street, Providence, otherwise known as
Assessor's Plat 29, Lot 31 (Lot 31). Id.;
Resolution No. 9850 at 3. Pursuant to the 1994 Zoning
Ordinance, the minimum lot area in an R-3 Zone was 5000
square feet, and the minimum lot area per dwelling unit was
2000 square feet. (Sec. 304 of the 1994 Ordinance.) Lot 31 is
a vacant parcel of land consisting of approximately 4470
square feet. (Resolution No. 9850 at 3.) Lot 276 consists of
approximately 1540 square feet and contains a three-family
dwelling. Id.
On
September 5, 2014, the Providence Building Official granted a
building permit to Mr. Porporino to construct a foundation
for a single-family dwelling modular home on Lot 31.
(Building Permit.) On September 16, 2014, the Building
Official posted a "Stop Work" Order on the
property. Two days later, he revoked the Building Permit,
stating that the Building Permit "was issued in error
and is null & void[.]" (Permit Revocation Notice,
dated September 18, 2014.) The Building Official informed Mr.
Porporino that "[i]n order to obtain a permit to build
at the site[, ] a Variance from the Zoning Board must be
applied for and approval granted through a Zoning
Resolution." Id.
On
October 2, 2014, Mr. Porporino[1] took an appeal from the Stop Work
Order to the Zoning Board. (Notice of Appeal, Oct. 2, 2014.)
On December 17, 2014, the Zoning Board conducted a duly
noticed hearing on the appeal. (Notice of Public Hr'g,
Dec. 1, 2014 and Hr'g Tr., Dec. 17, 2014 (Tr. I).)
At the
hearing, counsel for the Appellant asserted that Lot 31 was
not subject to the merger provisions of the 1994 Ordinance
due to a purported savings clause contained in Section
204.3(B). (Tr. I at 137-38.) Specifically, he contended that
Lot 31 satisfied Section 204.3(B), which permitted the
construction of two dwelling units on a legal substandard lot
of record, provided that the lot was at least forty feet in
width and contained at least 4000 square feet in area.
Id. at 138.
After
considering and rejecting Appellant's arguments, the
Zoning Board unanimously voted to affirm the Building
Official's decision to revoke the Building Permit.
Id. at 176. Thereafter, it issued a written decision
on February 4, 2015. (Resolution No. 9850.) In its decision,
the Zoning Board found that both lots had merged under the
1994 Ordinance. Id. at 4. The Zoning Board then
noted that Section 417 of the 1994 Ordinance prohibited two
principal residential structures on a single lot and that the
merged lot already contained a three-family dwelling unit.
Id. Consequently, the Zoning Board concluded that
the Building Official's revocation of the building permit
was a reasonable application of the Ordinance. Id.
On February 24, 2015, Mr. Porporino appealed the Zoning
Board's February 4, 2015 decision to this Court.
See Compl., PC-2015-0774.[2]
On
November 24, 2014, the City of Providence adopted a new
Zoning Ordinance, effective December 24, 2014. See
2014 Ordinance 1. On July 7, 2015, while the appeal in
PC-2015-0774 was pending, Mr. Porporino sought another
building permit to construct a single-family dwelling on Lot
31. (Building Permit Appl., July 7, 2015.)
The
City denied the building permit application, stating that the
proposal required a variance, and that "further review
will not be done until proof of a Zoning Variance is
provided." (PROV Smart Mail Notification.) Mr. Porporino
timely appealed the denial of the building permit application
to the Zoning Board. (Notice of Appeal, Aug. 28, 2015.)
Thereafter, the Zoning Board conducted a duly noticed hearing
on October 27, 2015. (Notice of Public Hr'g, Oct. 9, 2015
and Hr'g Tr., Oct. 27, 2015 (Tr. II).).
At the
hearing, counsel for the Appellant essentially contended that
the previous decision of the Zoning Board was irrelevant and
had no binding effect on the second application, because the
2014 Ordinance rendered it moot. (Tr. II at 128-129;
134-135.) He posited that Lot 31 was not a substandard lot of
record because Table 4-1 of the 2014 Ordinance does not
contain a minimum square footage requirement for lots that
existed at the time of the Ordinance's enactment.
Id. at 131-32. He then asserted that because the
merger provision applies only to two or more contiguous
lawfully established substandard lots of record, and because
Lot 31 is not a substandard lot of record, the merger
provision does not apply to Lot 31. Id. at 133 and
139.
At the
conclusion of the hearing, the Zoning Board voted to affirm
the Building Official's denial of the building permit
application. Id. at 166. Thereafter, it issued a
written decision on December 2, 2015, reaffirming its
previous determination that Lot 31 and Lot 276 had merged
under the 1994 Ordinance. See Resolution No. 9888 at
4. It further found that the 2014 Ordinance did not unmerge
the two lots, and that they remained one undivided lot.
Id. The Zoning Board also found that notwithstanding
its previous ruling, it also considered the two lots merged
under the 2014 Ordinance because Lot 31 still constituted a
substandard lot of record. Id. at 5. On December 22,
2015, Mr. Porporino appealed the Zoning Board's December
2, 2015 decision to this Court. See Compl.,
PC-2015-5574. On July 27, 2016, Plaintiffs filed a Motion to
Consolidate the two appeals. There being no objection, the
Motion Justice granted the motion under Rule of Court on
August 10, 2016.[3]
II
Standard
of Review
The
Superior Court has jurisdiction to review zoning board
decisions under § 45-24-69. The statute provides in
pertinent part:
"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 prejudiced
because of findings, inferences, conclusions, or decisions
which are:
"(1) In violation of constitutional, statutory, or
ordinance provisions;
"(2) In excess of the authority granted to the zoning
board of review by statute ...