County Superior Court
Plaintiff: Patrick F. Dowling, Jr., Esq.
Defendant: Joseph R. Ballirano, Esq.
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.
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.
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.
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.
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.
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.
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.)
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
"(1) In violation of constitutional, statutory, or
"(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
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
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