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Town of Coventry v. Forsons Realty LLC

Superior Court of Rhode Island, Kent

September 21, 2018


          For Plaintiff: Nicholas Gorman, Esq. and David M. D'Agostino, Esq.

          For Defendant: Patrick John McBurney, Esq.


          MCGUIRL, J.

         This case is before the Court on the Town of Coventry's (Plaintiff or the Town) action seeking redress for violations of the Town's Zoning Ordinance provision against Defendants Forsons Realty LLC, Ferrara Mechanical Services Inc., and Daniel Ferrara (collectively, Defendants), pursuant to G.L. 1956 §§ 45-24-60 and 45-24-62. Specifically, Plaintiff asks this Court to order the restoration, replanting, and revegetation of a required buffer zone and to order all uses of Defendants' property deemed to be in violation of the Zoning Ordinance, to be removed and abated. Jurisdiction is pursuant to G.L.1956 § 8-2-13.


         Facts and Travel


         Travel of the Case

         Plaintiff filed its Complaint against Defendants on October 14, 2016. The parties filed their pre-trial memoranda in June of 2017, and a trial as to the instant matter began on December 5, 2017. Originally, the Trial Justice assigned to Kent County met with the parties on September 13, 2017 and assigned the case to the October 2017 calendar. However, because of a lengthy civil matter involving the Court and one of the attorneys involved in this case, this matter was reassigned to the December 2017 calendar. After the conclusion of the trial, the parties requested that they be allowed to submit post-trial memoranda and the Court agreed. The Court asked that any post-trial memoranda be filed by January 19, 2018. The Court also indicated to the parties that oral arguments as to this issue would be held during the last week of January 2018. Neither party submitted any post-trial memoranda by January 19, 2018, and no oral arguments were ever held. As such, this Court put the case down for a number of status conferences over a period of several months.

         The Court was originally advised by the parties that they were working on briefs and needed additional time. The parties then noted that they were working towards settling the matter. The Court was told that the parties had reached an agreement but that they now needed the Town Council's approval in order to move forward with the settlement. As such, the parties requested additional time from the Court to obtain the Town Council's approval. The Court was then told that the Town Council was in agreement and that the Town approved the settlement agreement. However, the Court was then advised that they did not want to sign a Consent Order. The parties advised the Court that they would submit the agreement to be included in a Court Order. They believed a Court Order was more useful for enforcement purposes.

         On August 3, 2018, after the Court had not heard anything from either party regarding the instant matter, the Court summoned the parties to a status conference. At that time, the Court was told there was, in fact, no agreement. The parties then submitted the case for decision. The Court subsequently gave the parties one week to file post-trial memoranda and both parties did so on August 10, 2018.


         Trial Testimony

         A trial was held over three days on November 20, 2017, December 5, 2017, and December 7, 2017. This Court also conducted a view of the property. At trial, the Town called seven witnesses and Defendants called three witnesses. Matthew Sarcione, Assistant Planning Director and Acting Zoning Enforcement Officer, testified on behalf of the Town and Robert Joyal, P.E., Town Engineer, testified on behalf of the Town. Rose Ferrara, Daniel Ferrara's wife, testified on behalf of the Defendants as did Daniel Ferrara. Bruce Sandberg, son of Robert Sandberg, Defendants' predecessor-in-title, testified on behalf of the Defendants. In addition, Tyler Albert; Cathy Theroux; Frank A. Denette, III; Rene Claveau; and Diane Salvas all testified as rebuttal witnesses for the Town.


         Testimony of Matthew Sarcione

         Mr. Sarcione-the Town's Acting Zoning Enforcement Officer and Assistant Planning Director-primarily testified to the existence of a buffer zone on the property. Mr. Sarcione testified that he never took any physical measurements of the buffer zone and that in some places on the property, it would have been impossible to have a fifty (50) foot buffer zone. Mr. Sarcione also testified that he used a GIS imagery tool to measure historical buffer zones on the property and that, depending on which historical map he used, the buffer zone along Helen Avenue measured between twenty (20) and thirty (30) feet. This disparity, according to Mr. Sarcione, was likely due to the season in which the aerial image was taken. Furthermore, Mr. Sarcione acknowledged that the land survey in the Town's file for the property depicted the buffer zone between the building and the Helen Avenue property line as only twenty (20) feet.

         During his testimony, Mr. Sarcione also acknowledged that the July 16, 2007, letter from Mr. Peabody was likely a zoning certificate. Mr. Sarcione also testified that it is reasonable for a Zoning Officer to make certain exceptions for an application for a zoning certificate, such as waiving the requirement of an off street parking plan or identification of zoning boundaries. Mr. Sarcione testified that a zoning certificate is the only process set forth in the Zoning Ordinance whereby a landowner can have determinations made regarding legal nonconforming uses. Also, according to Mr. Sarcione, the Zoning Officer is the only person authorized to make such determinations. Mr. Sarcione testified that in issuing zoning certificates, he expects landowners to rely on those certificates, and that it would have been reasonable for the Defendants to rely on the representations of Mr. Peabody. Mr. Sarcione also testified that all of the current uses of the property by the Defendants fell into the uses that were identified by the July 16, 2007 letter from Mr. Peabody.


         Testimony of Rose and Daniel Ferrara

         When it came time to purchase the property, Rose Ferrara testified that the bank financing the purchase of the property required confirmation from the Town of the nonconforming use of the property. Mrs. Ferrara further testified that she sent a request for a zoning certificate to Jacob Peabody-the Zoning Enforcement Officer at the time-on or about June 25, 2007. Daniel Ferrara also testified that he met with Mr. Peabody prior to the purchase of the property and detailed the operations of the business that would take place at the property. In response to the Defendants' request, Jacob Peabody issued a letter dated July 16, 2007, indicating that Defendants' proposed use of the property was a legal nonconforming use. Defendants testified that had the Town not issued the aforementioned certificate, or had the Town issued a certificate indicating that the use of the property was not authorized or the use was disputed, then they would not have purchased the property. Mr. and Mrs. Ferrara each testified that they relied on the representations made within Mr. Peabody's July 16, 2007, letter when deciding to follow through with the purchase of the property.

         As to the clearing and excavation of the buffer zone, Defendants testified that they only cleaned up the property by removing small vegetation and shrubbery, and that they removed no trees in connection with the excavation. Defendants also testified that, given the content of Mr. Peabody's July 16, 2007 letter, they were under the impression that they were only required to maintain as much of the buffer zone as existed ...

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