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Dibiasio v. Zoning Board of Appeal For Town of Johnston

Superior Court of Rhode Island

February 8, 2018

ANN MARIE DIBIASIO
v.
ZONING BOARD OF APPEAL FOR THE TOWN OF JOHNSTON, AND BERNARD FREZZA IN HIS CAPACITY AS CHAIRMAN FOR THE ZONING BOARD OF APPEAL FOR THE TOWN OF JOHNSTON

         Providence County Superior Court

          For Plaintiff: Patrick F. Dowling, Jr., Esq.

          For Defendant: Joseph R. Ballirano, Esq.

          DECISION

          CARNES, J.

         Before the Court is an appeal of a decision of the Zoning Board of Review of the Town of Johnston (the Zoning Board). Appellant Ann Marie DiBiasio (Appellant or Ms. DiBiasio) asks the Court to reverse the Zoning Board's decision which determined that an illegal junkyard was being operated on her property at 1707 Plainfield Pike (the Property) within the Town of Johnston (the Town). Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons discussed below, the Court remands this matter to the Zoning Board for further proceedings consistent with this Decision.

         I

         Facts and Travel

         Appellant is a co-owner of the Property, which is more specifically located at lot 115 of plat 26. (Certified Record (C.R.) at 2, 63) The Property is leased to several businesses which, ostensibly, operate automobile repair facilities thereon, and the Property is zoned as use classification B-2. Id. at 6, 14, 64.

         After receiving multiple complaints, on October 15, 2014, Bernard J. Nascenzi, the Town's building official, issued Appellant and co-owner Arcangelo DiBiasio (Mr. DiBiasio) an official notice that the Property was in violation of Johnston Zoning Ordinance § 340-8, the table of use regulations, in that a junkyard was being operated on the Property, and junkyards are not permitted in B-2 zones. Id. at 62. On October 20, 2014, Appellant requested a hearing before the Zoning Board, and, after public notice, the hearing was conducted on January 29, 2015. Id. at 2, 59, 63.

         Appellant and her husband argued at the hearing that their tenants were responsible for the condition of the Property, and that it was not being used as a junkyard. Id. at 22-23. Appellant did not ultimately dispute the physical condition of the Property on the date the notice of violation was issued, however. Id. Specifically, Appellant appeared to agree that there were a large number of non-operational vehicles on the Property. Id. at 31.

         Prior to the hearing, Zoning Board Vice-Chairperson Anthony Pilozzi (Mr. Pilozzi) and alternate Zoning Board member Dennis Cardillo (Mr. Cardillo) visited the Property to view its condition. Id. at 7-8. Mr. Pilozzi stated during the hearing that he personally counted 120 unregistered cars on the Property, parked bumper to bumper, including some with flat tires, broken windows, grass growing on them, and no motors. Id. at 6-8, 21-22. Mr. Pilozzi entered photographs of the Property into evidence before the Zoning Board showing a large number of vehicles and the poor condition in which they were kept. Id. at 75-80. During the hearing, however, Appellant denied that any parts were being sold from the vehicles that were on the Property. Id. at 22.

         The Zoning Board issued a written decision on February 11, 2015. Id. at 57-58. The Zoning Board found that a junkyard was operating on the Property, as evidenced by the number and condition of unregistered vehicles on the Property. Id. The Zoning Board made no specific findings as to whether any parts were being sold, or how exactly the circumstances present on the Property fit the definition of a junkyard in the zoning ordinance. Id.

         Appellant then filed an appeal with the State Board of Standards and Appeals pursuant to G.L. 1956 § 23-27.3-127.2.5(f). (Appellant's Mem. Ex. 9.) The State Board of Standards and Appeals returned the appeal application for lack of jurisdiction because the underlying issue was a zoning violation not a building code violation. (Appellant's Mem. Ex. 10.) Appellant then filed the instant appeal in this Court on March 18, 2015, thirty-six days after the Zoning Board issued its written decision. (Compl.)

         II

         Standard of Review

         Superior Court review of local zoning board decisions is governed by the Rhode Island Zoning Enabling Act (the Act). Secs. 45-24-27 to -72. Specifically, § 45-24-69(d) provides this Court's standard of review:

"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:
"(1) In violation of constitutional, statutory, or ordinance provisions;
"(2) In excess of the authority granted to the zoning board of review by statute or ordinance;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

         After conducting a review of the entire record, this Court determines "whether substantial evidence existed to support" the decision of the zoning board. Lischio v. Zoning Bd. of Review of N Kingstown, 818 A.2d 685, 690 (R.I. 2003) (quoting OK Props. v. Zoning Bd. of Review of Warwick, 601 A.2d 953, 955 (R.I. 1992)) (internal quotation marks omitted). Substantial evidence means evidence that is "'more than a scintilla but less than a preponderance.'" Lloyd v. Zoning Bd. of Review for Newport, 62 A.3d 1078, 1083 (R.I. 2013) (quoting Apostolou v. Genovesi, 120 R.I. 501, 508, 388 A.2d 821, 824-25 (1978)). This Court "may not substitute [its] judgment for that of the zoning board if [it] can conscientiously find that the board's decision was supported by substantial evidence in the whole record." Mill Realty Assocs. v. Crowe, 841 A.2d 668, 672 (R.I. 2004) (internal quotation marks and citations omitted).

         Additionally, with respect to zoning board decisions, our Supreme Court has emphasized that "'a zoning board of review is required to make findings of fact and conclusions of law in support of its decisions in order that such decisions may be susceptible of judicial review.'" Bernuth v. Zoning Bd. of Review of New Shoreham, 770 A.2d 396, 401 (R.I. 2001) (quoting Thorpe v. Zoning Bd. of Review of N Kingstown, 492 A.2d 1236, 1237 (R.I. 1985)). Our Supreme Court has also indicated that "when the board fails to state findings of fact, the court will not search the record for supporting evidence or decide for itself what is proper in the circumstances." Irish P'ship v. Rommel, 518 A.2d 356, 359 (R.I. 1986) (citing Hooper v. Goldstein, 104 R.I. 32, 44, 241 A.2d 809, 815 (1968)). In such a case, it is appropriate for this Court to remand the case to the zoning board for additional proceedings. Id.

          III

         Analysis

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