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Town of South Kingstown v. M & S Property Management Associates, LLC

Superior Court of Rhode Island

November 14, 2017

TOWN OF SOUTH KINGSTOWN
v.
M & S PROPERTY MANAGEMENT ASSOCIATES, LLC

         Washington County Superior Court

          For Plaintiff: Michael A. Ursillo, Esq.

          For Defendant: John F. Kenyon, Esq.

          DECISION

          LANPHEAR, J.

         The 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.

         I

         Facts and Travel

         M & 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.

         The 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.)

         M & 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.

         Mr. 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.

         On July 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.

         On 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.

         On or 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.

         II

         Standard of Review

         Section 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 ...

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