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Fidas v. Town of Coventry Zoning Board of Review

Superior Court of Rhode Island, Kent

August 23, 2017

ELENI FIDAS
v.
TOWN OF COVENTRY ZONING BOARD OF REVIEW, BC PROPERTY, LLC., JOHN D'ONOFRIO, DENISE DEGRAIDE, JEANNE KOSTYLA, RUSSELL LACAILLADE, and VIRGINIA SOUCY

         Kent County Superior Court

          Brian LaPlante, Esq. For Plaintiff:

          Nicholas Gorham, Esq.; John S. Brunero Jr., Esq. For Defendant:

          DECISION

          RUBINE, J.

         This matter is before the Court on appeal from a final decision of the Coventry Zoning Board of Review (Board or Zoning Board), which on July 2, 2014 approved an application for a dimensional variance to allow BC Property, LLC. (Applicant or BC Property) to maintain a garbage receptacle (dumpster) in front of the business operated by its tenant on Plat 45, Lot 51 on Main Street in Coventry, Rhode Island. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons explained below, this Court remands this matter to the Zoning Board for further proceedings consistent with this Decision.

         I

         Facts and Travel

         Plaintiff Eleni Fidas (Plaintiff or Fidas) operates a pizza restaurant (d/b/a Silver Lake Pizza) at 1146 Main Street in Coventry (Fidas property), which is adjacent to a pub operated by a tenant of BC Property. The tenant, Bella's Sports Pub (Bella's or Pub), operates an eating and drinking establishment at the property owned by BC Property, which filed an application with the Zoning Board seeking permission to maintain a dumpster in the front of the Pub for use by its tenant. This would require a variance from Coventry Zoning Ordinance § 1207, which requires that "[a]ll commercial, industrial and multi-family residential uses shall provide trash and/or garbage collection [at] areas located in the rear of the building[.]" (Emphasis added.)

         On May 7, 2014, the Coventry Zoning Board held a duly noticed public hearing. Mr. Richard Crowe (Crowe), the sole member of BC Property, testified in favor of the variance, as did John Brunero, counsel for the Applicant. Specifically, Crowe testified that the proposed location is "the only location" for a dumpster. Ex. A, Zoning Board Meeting Minutes 4, May 7, 2014. Crowe further testified that the building has been used as a restaurant or a bar "since the 1700's." Id., at 5. In response to questioning from Attorney John Brunero (Brunero), Crowe responded in the affirmative when asked if there was "no way to get the trash from the back to the front other than leave it out there in bags[, ]" and employees of Bella's "would physically have to walk the trash through the building, through the patron's area and kitchen area . . . . to bring it to the front, that's the only way?" Id. Crowe testified that the dumpster had, at the time of the hearing, been at its present location in front of the building for two years. Id. at 6. He acknowledged that for a short time, the dumpster was behind the building, and regarding that time, he testified that "[w]e tried but it was very difficult." Id.

         Attorney Brian LaPlante (LaPlante), who represents Plaintiff, offered testimony and argument against the proposed variance. Id. at 8. He argued that the "dumpster in its current location can't be emptied unless it's rolled into my client's property[, ]" and his "client is similarly concerned about a neighbor using . . . [her] property." Id. He further argued that "[a]ny business asking you for relief is to realize greater financial gain." Id. at 9. Addressing whether granting the variance would "alter the general character of the surrounding area[, ]" LaPlante told the Board "[o]f course it will, this dumpster was never there before." Id. He further stated that denial of the variance would result in "just a mere inconvenience." Id.

         The Board asked Brunero if the trash had ever been stored behind the establishment, and he responded that it had been tried, but "[t]he problem with the dumpster going to the back of the building is in the winter trying to plow anything back there is impossible." Id. at 10. Brunero further stated that"[e]ven if we sat here tonight and the fence [between Bella's and the Fidas property] was no longer there[, ] it's almost impossible to get that dumpster in and out in the winter." Id. However, with respect to plow access, Crowe used the phrase "very difficult, " whereas Brunero described the difficulty with plow access as "almost impossible." Id. at 6, 10.

         The Zoning Board met again on July 2, 2014. Board member John D'Onofrio acknowledged that "[p]utting it right in front of the building on Main Street doesn't look good." Ex. B, Zoning Board Meeting Minutes 2, July 2, 2014. Finally, by a vote of 5-0, the Board ultimately approved the requested variance in a written decision dated July 2, 2014. Id. at 4. the Board added a stipulation that Applicant must "[e]nclose dumpster [where it is] [1] to make [it] aesthetically pleasing." Id.

         On July 29, 2014, the Board issued a written decision approving the Application for a variance. The decision held that the dumpster could remain in front of the building, with the stipulation that it "shall be enclosed with access doors, so that the actual dumpster is out of view." Ex. C, Coventry Zoning Board of Review Dimensional Variance Decision 2, July 29, 2014.

         Plaintiff filed her complaint and appeal on August 12, 2014. She alleged that there was no legal or factual basis for the decision of the Zoning Board, and the Zoning Board, in fact, had not ...


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