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All Grace Development Co., LLC v. City of Providence Zoning Board of Review

Superior Court of Rhode Island

July 7, 2017

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 ...

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