S.G. ASSOCIATES, INC.
JAMES RENGIGAS, as Applicant, THE CITY OF WARWICK ZONING BOARD OF REVIEW, DONALD G. MORASH, JR., RICHARD CORLEY, BEVERLY STURDAHL, MARK MCKENNEY AND EVERETT O'DONNELL, As Members of the Warwick Zoning Board of Review
County Superior Court
Plaintiff: John J. DeSimone, Esq.
Defendant: Peter D. Ruggiero, Esq.; Glen R. Whitehead, Esq.
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 §
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.
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.
noticed hearing for the requested dimensional variance was
held on January 13, 2015 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. Id. at
70. On April 22, 2015, the Board issued its written decision
denying Mr. Rengigas' application (petition number 10186)
for a dimensional variance.
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.)
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.
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.
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
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.
Crenca recommended that the Department would have no
objection to the relief requested by Mr. Rengigas contingent
on the approval of fifteen stipulations. Id. at
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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 ...