Plaintiff: Albert E. Medici, Jr., Esq.
Defendant: Nicholas Gorham, Esq.
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.
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,
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.
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.
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 ...