Providence
County Superior Court
For
Plaintiff: Joelle C. Rocha, Esq.
For
Defendant: Stephen H. Marsella, Esq. Christopher J. Zangari,
Esq.
DECISION
VAN
COUYGHEN, J.
Karco
Investors, Inc. (Appellant or Karco) appeals, for the second
time, from a decision of The Zoning Board of Review of the
City of Cranston (the Board), which granted a dimensional
variance for the construction of a two-story garage. This
Court remanded the previous appeal after reviewing the
initial decision and determining that the Board failed to
provide adequate findings of fact and to relate those facts
to the appropriate legal standard. On remand, the Board
issued its written decision on November 9, 2016 and
incorporated the minutes as findings of fact. Appellant takes
the instant appeal from that decision. Jurisdiction is
pursuant to G.L. 1956 § 45-24-69. For the reasons stated
herein, the decision of the Board is affirmed.
I
Facts
and Travel
The
facts of the underlying case have been previously set forth
in Karco Inv'rs Inc. v. The Zoning Bd. of Review of
Cranston, No. PC 14-4865, 2016 WL 1452834 (R.I. Super.
Apr. 8, 2016), and only a brief recitation of the facts is
necessary to understand the present posture of the case and
the Court's ruling. Joseph J. Natale (Natale) of 487
Niantic Avenue in Cranston, Rhode Island (the Property)
submitted an application to the Board on July 29, 2014
requesting relief from the following Cranston Zoning
Ordinances: § 17.92.020 (Variances), § 17.20.120
(Schedule of intensity regulations), and § 17.88.050
(Structural alterations). The Property is zoned M-2 and is an
undersized lot that contains 9402 square feet. The M-2
designation is described as Neighborhood Commercial in the
zoning ordinance. In addition to a three-family dwelling, a
garage and shed currently exist on the Property, which are
600 and 128 square feet, respectively. Natale requested
relief from the restrictions contained in the zoning
ordinance in order to allow him to construct a 30' x
40' two-story, 1226.40 square foot garage on the
Property. The proposed construction has insufficient
frontage, as well as insufficient front, rear, and side yard
setbacks. The construction of this garage would also coincide
with the removal of the existing garage and shed currently on
the Property.
The
Board held a public hearing on September 10, 2014 to
determine if Natale should be granted the relief he
requested. At the hearing, Natale's attorney stated that
the existing structures on the lot do not conform with the
intensity regulations of § 17.20.120 of the zoning
ordinance. However, the attorney argued that the new garage
would not increase that nonconformance, but would instead
reduce it, because the new garage would not be as close to
the street as the existing garage. Natale himself testified
that he intended to use the new, larger garage for storage
purposes-specifically for the storage of his classic car
collection-and had no intention of using it as an apartment
or some similar use. Two neighbors testified in favor of the
application citing the poor condition of the existing garage
and the need for it to be repaired or replaced. In
opposition, president of Karco and neighboring abutter
Kenneth Rocha (Rocha), who owns the property located at 11
East Josephine Street, Cranston, Rhode Island, otherwise
known as Assessor's Plat 6, Lot 1279, testified that the
new garage would alter the noncommercial appearance of the
area. He objected to the size of the new garage and stressed
his concerns that Natale may use the new structure in the
future for some other purpose rather than just for storage.
The
Board concluded the hearing and unanimously approved
Natale's application by a vote of five to zero (5-0),
with a condition that no commercial motor vehicle repair or
auto body/paint work be done on the Property. On September
16, 2014, the Board issued a Notice of Decision and attached
the minutes of the September 10, 2014 hearing.[1] In those attached
minutes, the Board made eight findings of fact[2] and stated that:
In this case, the Board further finds that the application
involves a hardship that is due to the unique characteristics
of the property, and is not due to a physical or economic
disability of the applicant, that the hardship does not
result primarily from the desire of the applicant to realize
greater financial gain, will not alter the general character
of the surrounding area or impair the intent or purpose of
the Zoning Ordinance or the comprehensive plan, is the least
relief necessary, and that the Board finds that the applicant
has met their legal burden with respect to the requirements
necessary for the applicable relief. (Hr'g Mins., Sept.
10, 2014).
Karco
took an appeal from the granting of the application arguing
that the Board's Notice of Decision did not comply with
§ 45-24-61 because it failed to set forth the votes of
the members of the Board or make any findings of fact. On
appeal, the Court determined that the Board's written
Notice of Decision was inadequate because its findings of
fact failed to articulate how the standards set forth in
§ 45-24-41 were met and remanded the case so that the
Board could make sufficient findings of fact, based upon the
record before it, and use such findings to address how each
requirement under § 45-24-41(c) and (d) had been
satisfied.
On
remand, the Board issued a new Notice of Decision unanimously
approving the application once again. The minutes, which were
filed contemporaneously with the Notice of Decision on
November 9, 2016, indicated that the Board was supplied with
a complete transcript of the September 10, 2014 hearing along
with all exhibits and a copy of the Court's remand
decision. The Board made the following findings as the basis
for its Notice of Decision:
1. The 20 x 30 garage and an existing 8 x 16 shed will be
removed.
2. The existing structure was not sound and was in need of
demolition.
3. The setbacks of the existing structure were in existence
prior to the applicant purchasing the property.
4. The proposed garage has two stories but the top floor will
be used for storage only.
5. The property is in an M-2 Zone which is Neighborhood
Commercial.
6. The Plan commission unanimously voted to forward a
positive recommendation to the Zoning Board and the Board
accepted its recommendation.
7. The Board made an additional finding that this new garage,
which replaces an old structure, would be consistent with the
comprehensive plan and that there are other garages and
outbuildings on surrounding properties.
8. The Board found that the replacement of the structure
would be an improvement to the property.
9. The Board took notice that the lots [sic] size was about
9, 400 square feet and found that there was ample parking on
the property as the existing driveway can accommodate two
spots.
10. The Board found that due to configuration of the
property, it was necessary to locate the garage in ...