Marsocci v. Pilozzi, C.A. No. PC 03-2254 (R.I. Super. 6/2/2006)
| Decision Date | 02 June 2006 |
| Docket Number | C.A. No. PC 03-2254 |
| Parties | DAVID MARSOCCI, Plaintiff v ANTHONY PILOZZI, ANTHONY VERARDO, JOSEPH A. ANZELONE, KENNETH AURECCHIA, ERNEST C. ACCIARDO, AND ALFRED P. CIANCI in their capacity as members of the TOWN OF JOHNSTON ZONING BOARD OF REVIEW, Defendants |
| Court | Rhode Island Superior Court |
In this administrative appeal, plaintiff David Marsocci quarrels with a decision of the Zoning Board of Review for the Town of Johnston that denied him dimensional variances in connection with his proposed construction of a single family dwelling. As the Board failed to make any findings of fact or conclusions of law to justify its decision, in violation of the repeated admonitions of the Rhode Island Supreme Court and the Rhode Island Superior Court to make its rationale explicit in its zoning decisions to allow for meaningful judicial review, this Court remands this matter to the Board for rehearing and further proceedings consistent with this Decision.
Plaintiff David Marsocci, the owner of property described as Lots 188 and 193 on Assessor's Plat 3 in the Town of Johnston, Rhode Island, filed an application for dimensional variances to build a single family residence measuring 26 feet by 44 feet on property measuring 50 feet by 300 feet. In his application, he contemplated side yard setbacks of 8 feet on one side and 16 feet on the other side, necessitating dimensional variances. See Johnston Zoning Ordinance Art. III, Table III F-1 (a Residence R-15 must have a minimum side yard of twenty (20) feet plus two (2) feet for each five (5) feet of building height over twenty five (25) feet).
The Town of Johnston Zoning Board of Review held a hearing on his application on May 30, 2002. Tr. of Hearing dated May 30, 2002. There were six members of the Board present at the hearing: defendants Anthony Pilozzi (Chairman), Anthony Verardo (Vice Chairman), Joseph A. Anzelone (Secretary), Kenneth Aurecchia, Ernest C. Acciardo, and Alfred P. Cianci. Id. At the conclusion of the hearing, the Secretary of the Board, defendant Anzelone, made a motion to deny the application because "the setbacks [were] too small." Tr. at 17. The Chairman seconded the motion and then called for the vote. Id. The transcript of the hearing reflects that only three members of the Board actually voted formally to deny the application (Aurrechia, Acciardo and Verardo). Id. Based on the fact that the Secretary of the Board made the motion to deny the application and the Chairman seconded that motion, and based further on this Court's review of the entire hearing record including the subsequent written decision signed by the Chairman that denied plaintiff his requested relief, it reasonably can be inferred that these two members of the Board also opposed the application and may have considered their acts of moving and seconding the motion to be votes to deny plaintiff Marcocci his requested relief. Id. It appears that the other member of the Board present at the hearing (Cianci or "Santilli" (sic) according to the hearing transcript) did not even vote or formally abstain from voting, but may have been sympathetic to plaintiff's position. Id.
While the record of the hearing does not explain the rationale for each member's vote or position, the statements of the Chairman, who dominated the discussion at the meeting, indicate that he had problems with: (1) the design of the house being "end to street" or "shotgun style" in a neighborhood where beautiful houses were not situated on lots in that fashion; (2) the size of the proposed house in relation to the lot size, considering the setback requirements; (3) the fact that it was, in his memory, the third time that an applicant had sought a variance to build on the property (the last time being plaintiff's sister seeking permission to build a duplex on the property); and (4) plaintiff buying the property from his sister which he viewed as plaintiff creating his own hardship. Tr. at 4-16. The Chairman expressed his view that too many people were buying up small vacant lots in Johnston and then seeking dimensional variances to build houses too large for the lots and that the Board had developed a policy of near zero tolerance for granting such requests (unless a variance of only a few feet were requested). Tr. at 8, 11-12, 16. While he stopped short of declaring plaintiff Marsocci's lot unbuildable and recommended that he put a smaller house on the lot, he did not indicate what dimensions, short of strict compliance with the dimensional requirements of the zoning ordinance, would be acceptable to him or the other Board members. Tr. at 4-16.1
Rhode Island law dictates that the Board must file a written decision containing its findings of fact within thirty (30) days of the meeting at which it votes. R.I. Gen. Laws § 45-24-61(a). The Zoning Ordinances for the Town of Johnston impose a similar requirement on the Board. See Johnston Zoning Ordinance Art. VI, § H (1). In this case, however, the Board inexplicably failed to issue its written decision in conformance with the timeframes dictated by state statute and its own regulations.
After waiting for over a year for the formal, written decision of the Board from which he could appeal, plaintiff Marsocci filed his initial complaint in this action on April 30, 2003, seeking a writ of mandamus to compel the Board to issue its written decision. He took no action for over four months thereafter to press his request for mandamus. On September 19, 2003, over fifteen months after it voted to deny plaintiff Marsocci's application at the hearing and on the same date on which the plaintiff finally noticed his mandamus petition for hearing, the Board at last filed its written decision denying his application for dimensional variances. The Board's decision recited the following few findings of fact:
1. The subject property is known as Assessor's Plat 3, Lots 188 and 193 and contains approximately 15,000 sq. feet.
2. The petitioner is the owner of said property.
3. The petitioner is proposing to build a single family home on the premises.
4. A variance is required for the proposed use.
5. The area surrounding the subject property contains residential use parcels.
6. The premises in question are located in an R-15 zone.
See Decision ¶¶ 1-6 (findings of fact). The Board stated its legal conclusions, using boilerplate language, as follows:
1. The hardship from which the applicant seeks relief is not due to the unique characteristics of the subject land or structure, but rather to the general characteristics of the surrounding area.
2. The hardship is the result of the action of the applicant and results primarily from the desire of the applicant to realize greater financial gain.
3. The granting of the requested variance will alter the general character of the surrounding area and impair the intent and purpose of this Ordinance and/or the Comprehensive Plan upon which this Ordinance is used.
4. The relief granted is not the least necessary.
5. The petitioner has failed to show that the subject land or structure cannot yield any beneficial use if it is required to conform to the provisions of the Johnston Zoning Ordinance.
6. The petitioner has failed to show that the hardship that will be suffered by the owner of the subject property if this variance is not granted amounts too [sic] more than a mere inconvenience.
7. That granting of this variance will result in or create a condition that will be inimical to the public health, safety, morals and general welfare of the community.
See id. ¶¶ 1-7 (conclusions of law).
On October 7, 2003, the same date on which plaintiff Marsocci alleges that he received the Board's decision, he filed a motion to amend his complaint to assert a claim of appeal from the Board's decision of September 19, 2003.2 On October 23, 2003, plaintiff's motion to amend the complaint was granted by rule of court, as the defendants interposed no objection to it. Plaintiff Marsocci also filed his amended complaint on that date, asserting only a claim of appeal from the Board's written decision of September 19, 2003.3
Not until March 4, 2004, or almost six months following plaintiff Marsocci's filing of his appeal, did the Board file in the Superior Court the certified record of proceedings before it, including plaintiff's application for dimensional variances, the transcript of the May 30, 2002 hearing on his application, and the Board's written decision dated September 19, 2003. The Board failed to serve or certify service of the filed certification and record to plaintiff Marsocci, through his counsel, at that time. Yet at no time before mid-March 2004 did plaintiff Marsocci move to compel the Board to file the certified record or for other relief. In fact, it was not until March 17, 2004, and without knowledge that the Board had recently filed the certified record, that plaintiff Marsocci filed a motion to compel its filing and for attorney's fees. The Board objected to the plaintiff's motion, arguing that it was moot as it already had filed the certified record. It appears from the Superior Court docket that plaintiff Marsocci took no action to press his motion thereafter. Instead, the parties consented to a briefing schedule to position this case for decision on plaintiff Marsocci's administrative appeal.
On appeal, plaintiff Marsocci seeks to overturn the decision of the Board that denied his application for dimensional variances. He argues that the Board's decision violated the provisions of R.I. Gen. Laws § 45-24-61(a) in that the Board failed to issue its written decision within thirty (30) days, record the votes of individual members with respect to the findings and conclusions stated in that decision, and set forth the findings of fact and conclusions of law that would allow this Court to conduct meaningful judicial review of that decision. Plaintiff Marsocci further contends...
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