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LLC v. Town of Coventry

Superior Court of Rhode Island, Kent

September 27, 2019

MIKE'S PROFESSIONAL TREE SERVICE, LLC, Plaintiff-Appellant,
v.
TOWN OF COVENTRY, COVENTRY ZONING BOARD OF APPEALS; DENISE DEGRAIDE, Member; IRENE DREW, Member; RUSSELL LACAILLADE, Member; JOHN J. D'ONOFRIO, Member; VIRGINIA A. SOUCY, Member; JEANNE KOSTYLA, Member, Defendants-Appellees.

          For Plaintiff: Albert E. Medici, Jr., Esq.

          For Defendant: Nicholas Gorham, Esq.

          DECISION

          LICHT, J.

         Mike's Professional Tree Service, LLC (Mike's) appeals the December 7, 2016 decision (Decision) of the Coventry Zoning Board of Appeals (Board), wherein the Board dismissed Mike's appeal because it did not pay a $200 filing fee or provide notice to property owners within two hundred feet of its property. The Board decided that the appeal was not properly perfected within thirty days and therefore, dismissed the appeal. Jurisdiction is pursuant to G.L. 1956 § 45-24-69, and this appeal is properly and timely before the Court pursuant to G.L. § 45-24-69.

         I

         Facts and Travel

         Michael Baird owns Mike's, which is a tree removal company that uses the trees it removes to make mulch at its property located at 75 Airport Road, Unit 3, Coventry, Rhode Island (Property). Tr. 31, 32-33, July 6, 2016. The Town of Coventry (Town) asserts that the Town Ordinances require a special use permit in order to use the Property "as a commercial woodlot and for firewood storage and sales." Consequently, on April 12, 2016, the Town issued a Notice of Violation (Notice) to Mike's. See Notice, Apr. 12, 2016. Mike's filed an appeal of the Notice on April 19, 2016. See Notice of Appeal. Thereafter, the Board held hearings on July 6, October 5, and November 2, 2016. See Decision. During the July and October hearings, much was discussed regarding the meaning of the term "firewood" and the process Mike's uses for creating mulch. See Transcripts. Because of the confusion over Mike's processing of the wood stored on the Property, the Board arranged a site visit for Saturday, October 8, 2016 at noon. See Tr. 72-73, Oct. 5, 2016.

         After these multiple hearings on this matter, Coventry's solicitor sent counsel for Mike's a letter on October 17, 2016 requesting that counsel provide mail receipts to show that notice had been sent to abutting property owners and a canceled check for the appeal's filing fee. See Letter, Oct. 17, 2016. At the next hearing on November 2, 2016, the solicitor gave her opinion that Mike's appeal was not properly before the Board because of Mike's failure to pay the filing fee and give notice and that the Board should dismiss the appeal. See Tr. 3-4, Nov. 2, 2016. Ultimately, the Board agreed with the solicitor and voted to dismiss the appeal. Id. at 92-93. Since Mike's had thirty days from the recording of the Notice to file an appeal to the Board and that time had already expired by the time the Board had dismissed the appeal, Mike's was precluded from refiling its appeal seeking appellate review of the Notice. See Coventry Zoning Ordinance § 412 (Section 412); Tr. 3-4, Nov. 2, 2016.

         The Board recorded its Decision on December 8, 2016, and Mike's filed a timely appeal to this Court on December 26, 2016. See Decision; Compl. Thereafter, an Amended Complaint was filed on January 4, 2017. Mike's challenges the Board's findings that it was required to pay a filing fee for its appeal to the Board under Table 3-1 of Section 3130 and Section 412 of Coventry's Zoning Ordinances and that it, as an Appellant, was required to send notice to its abutters under Section 423 of those same ordinances. Mike's requests a remand to the Board for a hearing de novo following proper notice being given to the abutters by the Town.

         II

         Standard of Review

         Section 45-24-69(d), which governs this Court's review of a zoning board decision, provides:

"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 ...

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