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Karco Investors, Inc. v. The Zoning Board of Review of City of Cranston

Superior Court of Rhode Island

November 8, 2017

KARCO INVESTORS, INC., Appellant,
v.
THE ZONING BOARD OF REVIEW OF THE CITY OF CRANSTON; DAVID CAPUANO, in his capacity as the City of Cranston Treasurer; and JOSEPH J. NATALE, Appellee.

         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 ...

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