County Superior Court
Plaintiff: Michael A. Ursillo, Esq.
Defendant: John F. Kenyon, Esq.
matter before the Court is an action for declaratory and
injunctive relief. Plaintiff, Town of South Kingstown (South
Kingstown), is requesting that this Court enforce the South
Kingstown Zoning Ordinance (Ordinance) and order Defendant, M
& S Property Management Associates, LLC (M & S), to
abate and correct its violations of §§ 804, 809 and
503.5 of the Ordinance. Jurisdiction is pursuant to G.L. 1956
§§ 45-24-62 and 9-30-1 et seq.
S is the owner of the property located at 4087 Tower Hill
Road, South Kingstown, Rhode Island (Subject Property),
designated as Lot 26 on South Kingstown Assessor's Map
42-2. The Subject Property is located in the R-80 Rural
Residential Low Density Zoning District.
previous owner, Power Test Realty, LP, used the Subject
Property primarily as a gasoline filling station, a
nonconforming use. On September 28, 2011, the South Kingstown
Zoning Board of Review (Board or Zoning Board) issued a
decision wherein "the Board granted the request for a
Special Use Permit to expand an existing nonconforming use,
gasoline filling station, Use Code 45, to include sale of
liquefied gas, Use Code 53.2 and truck and trailer rental
service in an R-80 Zone for property which is the subject of
this petition. . . ." (Sept. 28, 2011 Board Decision.)
S purchased the Subject Property on June 11, 2015. Soon
thereafter, the underground fuel tanks and dispensers
permitted by the Special Use Permit were removed. On or about
June 26, 2015, Jeffrey T. O'Hara, South Kingstown
Building Official, advised M & S, through Stephen D.
Smith, that M & S should confer with the Town's
Planning Department regarding its intended use of the Subject
Property. Mr. Smith is the President of Smithco Oil Service,
Inc. (hereinafter Smithco), which is headquartered in
Wakefield and operates a heating equipment and oil business.
O'Hara's June 26, 2015 letter informed Mr. Smith that
M & S relinquished its rights pursuant to the Special Use
Permit issued in 2011 to operate the Subject Property as a
gasoline station upon the removal of the fuel tanks and
dispensers. Mr. O'Hara noted that the non-conforming
gasoline filling station and truck rental accessory uses were
subsequently abandoned in accordance with §§ 202(I)
& (J) of the Ordinance.
9, 2015, Mr. O'Hara issued a notice of violation to M
& S stating that M & S had erected or installed
signage on the Subject Property located in a residential
zoning district in violation of the Ordinance. Section 804 of
the Ordinance establishes extensive requirements for signs in
residential zoning districts. M & S did not file an
appeal of that notice of violation with the Zoning Board.
October 21, 2015, Mr. O'Hara issued a second violation
notice to M & S, indicating that commercial vehicles
stored on the Subject Property in an R-80 Zoning District
were in violation of § 503.5 of the Ordinance. Sec.
503.5 of the Ordinance provides that if more than one
commercial vehicle up to one and one-half tons is stored on
the Subject Property, it must be "parked or stored in a
completely enclosed building or in an area screened and/or
landscaped by means of a full landscape screen . . ."
That notice reiterated that the signage on the Subject
Property was also in violation of the Ordinance. M & S
again did not file an appeal of the notice of violation with
the Zoning Board.
about December 8, 2015, Michael Ursillo, Town Solicitor, sent
a letter to M & S indicating that South Kingstown
intended to pursue legal action against it if the violations
were not corrected within seven days. On January 19, 2016,
South Kingstown filed the present action to enforce these
violations. M & S filed a timely answer to South
Kingstown's Complaint. The Subject Property remains in
violation of the Ordinance.
45-24-62 of the Zoning Enabling Act grants this Court
jurisdiction to review a municipality's Complaint of a
zoning ordinance violation. This Court's review is
governed by § 45-24-62, which provides:
"The supreme court and the superior court, within their
respective jurisdictions, or any justice of either of those
courts in vacation, shall, upon due proceedings in the name
of the city or town, instituted by its city or town
solicitor, have power to issue any extraordinary writ ...