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S.G. Associates, Inc. v. Rengigas

Superior Court of Rhode Island

July 31, 2017


         Kent County Superior Court

          For Plaintiff: John J. DeSimone, Esq.

          For Defendant: Peter D. Ruggiero, Esq.; Glen R. Whitehead, Esq.


          LANPHEAR, J.

         This matter is before the Court on the appeal of Plaintiff, S.G. Associates, Inc. (S.G. Associates), from a decision of the City of Warwick Zoning Board of Review (the Board). The Board's decision granted Defendant James Rengigas' (Mr. Rengigas) requests for certain dimensional variances in order to construct a one-story fast-food restaurant. S.G. Associates is an abutting landowner and a direct business competitor. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.



         Mr. Rengigas is owner of the subject property located at 875 Oakland Beach Avenue, Warwick, Rhode Island and otherwise known as Assessor's plat 375, Assessor's lot 437. (Hr'g Tr. (Tr.) 5, July 21, 2015.) The property measures approximately 11, 917 square feet and is zoned General Business. Id. The property's current structure is a single-family home. Id. Prior to the current single-family structure, the property was the location of the original Gus's Restaurant. Id. at 5-6. The property is bounded by a private parking lot to the north, S.G. Associates' existing restaurant to the south, and open space and residential property to the west. Id.

         In December of 2014, Mr. Rengigas submitted his first application-described as petition number 10186- requesting a dimensional variance to demolish an existing structure on the property and construct a new 32-foot by 42-foot one-story building. (Tr. 5, Jan. 13, 2015.) Mr. Rengigas sought to reinstate the former use of the property to operate a fast-food restaurant that would sell, among other things, "clamcakes, " and "chowder." Id. The proposal included offering customers four stools inside and an additional twenty seats outside. Id. In this application, Mr. Rengigas requested dimensional variances to allow him to operate the restaurant with less than the front and side yard setback, off street-parking spaces, and landscape buffer as required by the Warwick Zoning Ordinances. Id. at 5-6.

         A duly noticed hearing for the requested dimensional variance was held on January 13, 2015[1] and March 10, 2015. S.G. Associates was present at both hearings in opposition to Mr. Rengigas' application. On March 10, 2015, the Board voted to deny Mr. Rengigas' application reasoning that the requested building is too large for the size of the property. (Tr. 69-70, Mar. 10, 2015.) Additionally, the Board expressed concerns regarding the small number of parking spaces proposed and the degree of relief that would be needed in order to permit construction of the building[2]. Id. at 70. On April 22, 2015, the Board issued its written decision denying Mr. Rengigas' application (petition number 10186) for a dimensional variance.

         Two months later, on May 11, 2015, Mr. Rengigas filed a second application-described as petition number 10221-requesting dimensional relief for the same property located at 875 Oakland Beach Avenue in Warwick, Rhode Island. Mr. Rengigas petitioned for dimensional variances in order to demolish the existing structures on the property and construct a one-story building to operate a fast food restaurant. However, the second application proposed construction of a 32-foot by 28-foot building rather than the 32-foot by 42-foot building previously proposed. Thus, the second application proposed to construct a smaller building. Additionally, Mr. Rengigas no longer requested relief from the required number of off-street parking spaces. Instead, Mr. Rengigas' second application only requested that the building have "less than required front yard and side yard setbacks, dumpster having less than required setback from open space, outside seating having less than required side yard and front yard setbacks, [] less than required setbacks for parking, [and] less than [the] required landscaping and landscape buffer[.]" (Second Appl. 3A.)[3]

          Pursuant to Article IV of the Warwick Zoning Board of Review's Written Rules of Procedure, an applicant will not be given a new hearing within a year of being denied unless "it is alleged that new facts have arisen which could not have been presented to the Board at the time of its hearing, or where the ownership of the property involved has changed. See Article IV, Warwick Zoning Board of Review Written Rules of Procedure (Jan. 26, 1965). Accordingly, on June 9, 2015, the Board held a public hearing to determine whether new facts had arisen since the denial of Mr. Rengigas' first application. (Tr. 1-2, June 9, 2015.) At this hearing, S.G. Associates opposed the granting of Mr. Rengigas' new hearing on the second application. Id. at 3.

         The Board acknowledged that the second application included a proposal for construction of a smaller building. Id. at 17-18. The Board further noted that the second application proposed a less intensive use of the land compared to that sought in the first application. Id. The Board described the second application as a new petition. Id. After conducting a full hearing and considering all arguments, the Board determined that new facts existed to allow Mr. Rengigas' second application to be heard two months after the denial of his first application. Id. at 30-31. On July 16, 2015, the Board issued its written decision. (Board's Decision, July 16, 2015). Neither party filed an appeal of the Board's July 16, 2015 written decision.

         Thereafter, on July 21, 2015, the Board held a duly noticed public hearing to determine whether to grant the requested dimensional variances in Mr. Rengigas' second application. At the hearing, various individuals testified in support of and against Mr. Rengigas' request for dimensional relief. First, Richard Crenca (Mr. Crenca) of the Planning Department for the City of Warwick (the Department) made an initial recommendation to the Board. (Tr. 5-10, July 21, 2015.) Mr. Crenca noted that the property which is zoned General Business

was previously being used as a single-family home. Prior to that, it was the location of the original Gus's Restaurant. The Petitioner intends to reinstitute the former use of the property and sell, among other items, clamcakes and chowder. The operation will provide two counter stools inside and seating for 20 outside . . . [t]he area of . . . Oakland Beach Avenue has developed into a successful area for restaurants, beach front and open space. The use of this property as another restaurant would be consistent with the surrounding uses as well as with the City's Comprehensive Plan. Id. at 5-6.

         Mr. Crenca recommended that the Department would have no objection to the relief requested by Mr. Rengigas contingent on the approval of fifteen stipulations[4]. Id. at 7.

         Next, Mr. Rengigas' attorney, Robert Flaherty, testified that Mr. Rengigas was petitioning for a scaled-down and radically different building proposal in comparison to his first application. Id. at 10. Attorney Flaherty stated that Mr. Rengigas sought to demolish existing structures on the property in order to construct a 32 by 28-foot building to operate a fast-food restaurant. Id. at 11. Attorney Flaherty explained that dimensional variances are necessary because, based on the configuration of the lot and Oakland Beach Avenue, the location of the building would not permit compliance with the required frontage. Id. Attorney Flaherty also asserted that given the configuration of the area, no building on Oakland Beach Avenue conforms to the frontage requirements. Id. Moreover, Attorney Flaherty provided that the property was the site of the original Gus's Restaurant and that the property has been in Mr. Rengigas' family since 1924. Id. Lastly, Attorney Flaherty noted that the restaurant is the only practical use of the property and that literal enforcement of the Ordinance would cause undue hardship for Mr. Rengigas since the property is not appropriate for residential use. Id. at 12.

         An expert in real estate brokerage, Robert DeGregorio, was next to testify in support of Mr. Rengigas. Id. at 13. Mr. DeGregorio testified that the proposed use of the property is "extremely consistent" with the other uses in the area and would conform to the surrounding area. Id. at 16. Mr. DeGregorio testified the proposed building would not alter the nature of the surrounding buildings or businesses. Id. Mr. DeGregorio opined that there is no other practical alternative use other than commercial and that the current dwelling located on the property is an "unattractive nuisance." Id. Mr. DeGregorio asserted that the proposed commercial use would not have an adverse effect on the property values in the surrounding area because Mr. Rengigas would be "taking a rundown building and . . . making a new business that will conform with the area." Id. at 17. Lastly, Mr. DeGregorio testified that an alternative commercial use, such as an office building, would not be appropriate on Oakland Beach Avenue. Id. at 22.

         Next, Mr. Rengigas briefly testified in support of his application. Mr. Rengigas described details of his site plan and the proposed layout of the building. Id. at 26-32. Additionally, Mr. Rengigas addressed concerns regarding the use of the basement in the building. Id. at 28. Mr. Rengigas clarified that he plans to have mechanicals for hot water, as well as possible storage for paper goods, located in the basement. Id. at 28-29. However, Mr. Rengigas testified that he has not yet discussed the proposal with the building department and therefore he could not offer specifics. Id. at 31-32.

         Paul Bannon, an expert on traffic and transportation, testified next in support of Mr. Rengigas' application. Id. at 34. Mr. Bannon testified that he reviewed the site plan that was proposed by the site engineer. Id. at 35. He testified that he visited the site at different times of the day and week to observe traffic conditions. Id. Mr. Bannon further testified that he collected accident data from the City of Warwick to determine whether there were safety issues that existed in the area. Id. As a result of his study, Mr. Bannon concluded that Mr. Rengigas' building would have no adverse effect on the public health and safety in the area of Oakland Beach Avenue and that an adequate and safe access can be provided at the proposed building's driveway. Id. at 36.

         Mr. Cabral, whom the Board qualified as an expert in engineering, testified in opposition to Mr. Rengigas' second application. Id. at 38. As an initial matter, Mr. Cabral first testified that the proposed site is not the original site for Gus's Restaurant, but rather Gus's Restaurant was located on an adjacent property. Id. at 41-42. Mr. Cabral claimed that the subject site was actually the location of a food stand that existed from 1924 to 1934. Id. at 42. Therefore, Mr. Cabral testified that the prior use of the property was not a commercial restaurant as stated, but was solely a single-family home since 1934. Id. at 42.

         Mr. Cabral next testified as to the engineering issues regarding the variances that Mr. Rengigas had requested. Id. at 43. Mr. Cabral expressed concerns regarding the magnitude of the number of variances requested. Id. at 44. Mr. Cabral stated that the cumulative impact of the requested variances makes it clear to an engineer that the proposal is not suitable for the subject property. Id. at 45. Mr. Cabral testified that if the proposal was for a retail store with an office space rather than the proposed restaurant, then the proposal would be more suitable for the property in accordance with the zoning ordinance. Id. at 45-46. Mr. Cabral clarified that the purpose of his testimony is to show that there are other uses allowed in the zone that can fit the subject property without numerous variances being requested. Id. at 47.

         Additionally, Mr. Cabral expressed concern regarding the parking spaces required by Warwick Zoning Ordinances. Id. at 53. Specifically, Mr. Cabral testified that should Mr. Rengigas ultimately utilize the basement for storage, then a seven-foot clearance is required. Id. However, Mr. Cabral stated that the required seven foot clearance was not specified in Mr. Rengigas' application. Id. Mr. Cabral testified that if Mr. Rengigas plans to utilize storage, then additional parking would be required. Id. In essence, Mr. Cabral advised that the number of variances requested evidences that the subject property is not appropriate for the use requested. Id. at 57.

         Edward Pimental, qualified as an expert in land use, was next to testify in opposition to Mr. Rengigas' second application Id. at 58. Mr. Pimental agreed that the restaurant is a permitted use as the subject property is located in a General Business Zone. Id. at 61. However, Mr. Pimental expressed concern over the lack of off street and on street parking offered. Id. at 64-65. Mr. Pimental expressed that the deficient parking could "result in both [an] inconvenience for visitors and patrons and disruption to surrounding uses." Id. at 65. Mr. Pimental reviewed the parking spaces of Mr. Gravino, an abutting property owner and owner of S.G. Associates. Id. Mr. Pimental testified that Mr. Gravino owns an estimated one hundred and fifty spaces spread across his properties in order to accommodate his customers. Id. at 66. Mr. Pimental testified that Mr. Gravino needs only forty to fifty parking spaces for to satisfy the zoning ordinance. Id. Thus, Mr. Pimental appeared to argue that Mr. Gravino is a business owner that strives to adhere to the City's Comprehensive Plan by solving some of the parking deficiency issues. Id. In contrast, Mr. Pimental claimed that Mr. Rengigas' request for ten variances does not align with the City's Comprehensive Plan goals and objectives. Id. at 66-67. Mr. Pimental stated that "[t]he magnitude [of variances] that we are talking about, with some of them a hundred percent [deviation], I would say cannot possibly meet the burden of the [least] relief necessary." Id. at 74. Mr. Pimental clarified that the variances requested are a hundred percent deviation as a cumulative effect. Id. at 77. In sum, Mr. Pimental testified that Mr. Rengigas' proposal could overburden the area reducing the number of parking greatly and potentially forcing visitors out of the area due to inconvenience. Id. at 89.

         Finally, William Coyle, an expert in real estate, was the last witness to testify in opposition to Mr. Rengigas' second application. Id. at 92. At the hearing, Mr. Coyle testified that he identified the impact that Mr. Rengigas' proposal would have on the surrounding properties, both commercial and residential. Id. at 93. Mr. Coyle discussed the deficiency in parking around Oakland Beach Avenue and the traffic issues that exist. Id. at 97-98. Mr. Coyle claimed that the area is already having trouble servicing restaurant customers in that area. Id. at 98. Mr. Coyle further testified that the specific use requested requires variances in excess of what should be needed and that there are other uses that are more appropriate requiring less relief. Id. at 99. Mr. Coyle also expressed concern regarding the building plan lacking sufficient information. Id. at 102. Mr. Coyle claimed that should Mr. Rengigas add an oil boiler or a walk-in refrigerator- two structures that are typical of the use requested-additional parking spaces would be needed. Id. at 103. However, Mr. Coyle testified that it would be difficult to add the additional required parking spaces once the building is complete. Id.

         Ms. Julie Finn, a frequent visitor of the Oakland Beach Avenue area, also commented in opposition to Mr. Rengigas' second application. Id. at 117-118. Ms. Finn opined that the area does not warrant another take-out fast-food restaurant. Id. at 118. Ms. Finn expressed concerns regarding the amount of trash and litter around the beach. Id. She claimed that it was the fault of the area businesses for not picking up the trash from their customers and therefore adding another restaurant would only contribute to the problem. Id.

         After the Board considered all of the testimony and other evidence, Board Member O'Donnell made a motion to approve Mr. Rengigas' application. Id. at 119. Board Member Sturdahl seconded the motion. Id. at 120. During discussions, Board Member O'Donnell commented that it is Mr. Rengigas' right to open a restaurant in the area. Id. Board Member McKenney (Mr. McKenney) also explained that failing to grant the application would result in a hardship on Mr. Rengigas. Id. Mr. McKenney stated that the testimony offered concluded that the property values would not be negatively affected; the setbacks were appropriate; and that the hardship was due to the unique characteristics of the property and not the general characteristics of the surrounding area. Id. He further expressed that the evidence is in favor of the type of business being a good fit for the surrounding area and that the type of alternative uses proposed were not conducive to the surrounding area. Id. at 121. Mr. McKenney noted that a little competition could also relieve the crowding on the sidewalk. Id. at 122. Board Member Corley further opined that he believed anti-competition was the "main motivating factor from [S.G. Associates] . . ." in objecting to Mr. Rengigas' application. Id. at 125-126

         Following further comments by the Board, Board Member Morash voted against the motion. Finally, Mr. Rengigas' second application was approved four to one. The Board issued its written decision on August 20, 2015.

         In its written Decision, the Board noted that the hardship from which Mr. Rengigas seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area. See Decision 3, Aug. 20, 2015. The Board reasoned that the property is the only single-family residential structure on that stretch of Oakland Beach Avenue zoned as General Business. Id. The Board found that the hardship is not the result of any prior action of Mr. Rengigas and was not from his desire to realize greater financial gain. Id. The Board noted that the current structures have been in existence longer than any prior zoning regulations. Id. The Board further acknowledged that the new restaurant would keep the character of the area and be more in conformance with the surrounding area than the existing single-family structure. Id. The Board further found that the restaurant would not diminish the use, value or enjoyment of the subject property or surrounding properties. Id. The Board determined that this relief requested is the least relief necessary as Mr. Rengigas changed his prior plan. Id. Finally, the Board concluded that the proposal would enable Mr. Rengigas to build an adequate sized building sufficient to operate the restaurant. Id.

         On September 3, 2015, S.G. Associates timely filed an appeal of the Board's August 20, 2015 decision. Thereafter, on January 5, 2017-more than six months after filing its initial memorandum-S.G. Associates filed a supplemental memorandum raising procedural issues in relation to the Board approving the request to hear Mr. Rengigas' second application within one year of being denied. Mr. Rengigas filed a reply to the supplemental memorandum, which was supported by the Board, arguing that the procedural issues are untimely because S.G. Associates never appealed the Board's written decision granting the hearing of ...

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