Opinion
C. A. WC-2018-0091 WC-2018-0563
08-26-2020
GENE PROPERTIES, LLC v. TOWN OF WESTERLY, THE ZONING INSPECTOR and THE ZONING OFFICIAL, NATHAN REICHERT FOR THE TOWN OF WESTERLY and THE WESTERLY FINANCE DIRECTOR
For Plaintiff: Louis B. Cappuccio, Jr., Esq.; Steven Surdut, Esq. For Defendant: William J. Conley, Jr., Esq.
For Plaintiff: Louis B. Cappuccio, Jr., Esq.; Steven Surdut, Esq.
For Defendant: William J. Conley, Jr., Esq.
DECISION
MCGUIRL, J.
Plaintiff Gene Properties, LLC (Plaintiff) brings this consolidated Motion for Declaratory Judgment and Zoning Appeal with respect to an LED sign it maintains in the Town of Westerly (Town) pursuant to a 2009 consent order (the Order). Plaintiff alleges its sign was not changed, replaced, or modified since entry of the Order, and thus, the sign may remain in use. Defendants contend the sign has, in fact, been changed, replaced, or modified in violation of the Order and therefore does not comply with the Town's existing ordinances governing LED signage. For the reasons set forth in this Decision, the Court denies Plaintiff's request for a declaratory judgment and affirms the decision of the Westerly Zoning Board of Appeals (the Board). Jurisdiction is pursuant to G.L. 1956 §§ 9-30-1 and 45-24-69.
On March 1, 2019, this Court granted Plaintiff's Motion to Consolidate the Declaratory Judgment action and the appeal from the Westerly Zoning Board of Appeals' decision.
I
Facts and Travel
Plaintiff is a duly licensed Rhode Island corporation, doing business at 149 Atlantic Avenue, Westerly, Rhode Island, where it owns the Sandy Shore Motel (the Property). Defendant Nathan Reichert (Reichert) is the Zoning Inspector and Official for the Town.
In 2009, Plaintiff received the Order from this Superior Court, C. A. No. WC-2006-539, permitting it to keep an LED sign at the Property following a dispute between Plaintiff and the Town. While the Town's zoning ordinances state that "[a]ll signs . . . that are self-illuminating utilizing light-emitting diodes (LED) . . . are not allowed in any zoning district," the Order permitted Plaintiff to keep the sign subject to limitations. Westerly Zoning Ordinances § 260-86.D.2. Under the Order, Plaintiff was required to maintain a fixed and stationary message on the sign advertising Sandy Shore Motel, the availability of rooms, the rates for said rooms, contact information including phone and website information, and time and temperature. See Consent Order, Sept. 21, 2009 (Defendants shall be permitted to have the existing sign remain on their property located at 149 Atlantic Avenue . . ."). The Order also mandates that the sign cannot be "changed, replaced or the use of the signage modified unless it is in accordance with the existing ordinances that are in effect at the time." Id. The Town's ordinances relative to signage have not been changed or amended since the time of entry of the Order.
The Order is between the Town and Eugene Arganese d/b/a Eugene Properties, LLC d/b/a Sandy Shore Motel.
On or about December 2017, Reichert was inspecting another property in the Atlantic Avenue area when he noticed that Plaintiff had a construction crew at the Property. Reichert believed the crew was removing the LED sign to replace it with a new sign. At that time, Plaintiff did not have the proper permit from the Town to replace the sign and had not submitted any application for such a permit.
On or about January 16, 2018, Plaintiff applied to the Board for a sign permit. On January 29, 2018, Reichert-in his official capacity as the Town's Zoning Inspector-denied the permit request and issued a Notice of Violation regarding the existing sign. See Denial of Sign Permit and Notice of Violation, Zoning Submittal No. 18/3061, Jan. 29, 2018. Reichert cited Town Ordinance § 260-86.D.2, "Sign illumination and motion," which prohibits self-illuminated signs in any zoning district in the Town. Id.
Plaintiff then appealed the permit denial to the Board at its October 3, 2018 meeting. The Board denied Plaintiff's appeal and affirmed Reichert's decision. See Zoning Board of Appeals Decision at 3, Oct. 9, 2018. The Board found that the sign installed at the Property in December of 2017 "does not conform to the Zoning Ordinance Sign provisions found in Section 260-86" and that "the actions taken by the [Plaintiff] in December 2017 resulting in the installation of an LED sign . . . is a 'REPLACEMENT' of a nonconforming sign and not 'MAINTENANCE' or 'REPAIR.'" Id.
Plaintiff subsequently filed an Application for Appeal from the Board's decision and brought a Declaratory Judgment action, seeking to keep the current sign at the Property. The Court consolidated these two matters by agreement in February 2019. This Court heard argument on July 10, 2019. Both parties conceded that the current sign is dimensionally smaller than the one that was the subject of the Order. The new sign possesses different dimensions than the original sign, and photographs clearly show unpainted portions of the wall, now visible, that were previously hidden by the sign.
Plaintiff argued that any and all modifications to the sign were necessary maintenance and repair. Plaintiff contends that Hurricane Sandy damaged the "casing" of the LED display, that the casing had to be replaced to effectively repair the sign, and that this activity is not a "change" or "replacement" that would violate the Order. Plaintiff argues that maintaining and repairing the sign requires periodically replacing sign components and that this replacement is not of the type contemplated and prohibited by the Order.
While Defendants agree that the Order permits Plaintiff to maintain and repair the existing sign, it counters that Plaintiff "changed" or "replaced" the sign itself in violation of the Order. Defendants point out that the sign's dimensions have changed and argues that such a visibly noticeable change in appearance cannot fairly be described as permissible maintenance such as repairing individual light diodes, wiring, or the brackets securing the sign to the wall. Defendants further argue that Plaintiff previously conceded that the sign was a replacement, highlighting Plaintiff's Sign Permit Application, wherein Plaintiff submitted an application for "Replacement/Repair of Excisting [sic] LED sign with new one." Plaintiff now asks this Court to reverse the Board's decision and grant it a Declaratory Judgment permitting the current sign to remain on the Property.
II
Standard of Review
Plaintiff seeks a declaration from this Court that it has not violated the Order and that it may maintain the current signage on the Property. Under the Uniform Declaratory Judgments Act (UDJA), this Court may "declare rights, status, and other legal relations whether or not further relief is or could be claimed." Section 9-30-1. The decision to grant or deny declaratory relief is discretionary with the Superior Court justice. Sullivan v. Chafee, 703 A.2d 748, 751 (R.I. 1997). In any UDJA action, "[i]t is the function of the trial justice to undertake fact-finding and then decide whether declaratory relief is appropriate. Town of Barrington v. Williams, 972 A.2d 603, 608 (R.I. 2009).
Plaintiff also requests this Court reverse the decision of the Board denying his permit application and finding the current sign in violation of the Order. This Court may reverse or modify a zoning board decision:
"if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions [by the zoning board] which are
"(1) In violation of constitutional, statutory, or ordinance provisions;
"(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 discretion." Section 45-24-69(d)(1) - (6).
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." Section 45-24-69(d). This Court will affirm the Board if "substantial evidence"-defined as '"such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less than a preponderance"'-exists to supports its decision. Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)).
III
Analysis
A
Notice and Record Deficiencies
At the outset, the Court addresses two issues with the certified record. First, there is no documentation in the record that the Board's decision was "posted in a location visible to the public . . . for a period of twenty (20) days" as required under § 45-24-69(a). Second, the record does not show that an affidavit of notice was sent "to those persons who were entitled to notice of the hearing set by the zoning board of review," if any, pursuant to § 45-24-69.1(a).
Adequate and sufficient notice of a pending action by the Board is a jurisdictional prerequisite to a valid zoning decision. Ryan v. Zoning Board of Review of Town of New Shoreham, 656 A.2d 612, 615 (R.I. 1995). However, our Supreme Court has explicitly held that the statutory notice requirements of § 45-24-69.1 regarding Superior Court review of zoning board decisions are not jurisdictional. See Jeff Anthony Properties v. Zoning Board of Review of Town of North Providence, 853 A.2d 1226, 1232 (R.I. 2004) ("Absent clear statutory language that the . . . notice requirement is jurisdictional, we conclude that a party's failure to so comply [with notice requirements] does not automatically require that it forfeit its right to appeal an adverse decision of a zoning board.").
Instead, this Court's inquiry is whether the "reasons, if any, for lack of compliance [with notice requirements], as well as any prejudice to the interested party who was not properly notified" warrants dismissal or remand of a zoning board appeal. Id. Additionally, where there are gaps in the record, this Court must ensure that the record is sufficiently developed such that it contains "a fair report . . . [of the evidence and testimony] upon which [the Board] based its decision." Holliston Sand Co. v. Zoning Board of Review of Town of North Smithfield, 98 R.I. 93, 200 A.2d 9 (1964); see also Roger Williams College v. Gallison, 572 A.2d 61, 63 (R.I. 1990) (finding that Court should remand zoning board appeal for further proceedings where "there is no record of the proceedings upon which a reviewing court may act.").
Under § 45-24-69.1(a)-(d), Plaintiff was required to provide an affidavit of notice certifying that it properly sent notice of the zoning board appeal and Superior Court hearing to all parties "entitled to notice of the hearing set by the zoning board of review." The record is absent of any such affidavit or certification, and Plaintiff has not provided an explanation for this lack of compliance with the statutory notice provisions. When a plaintiff has failed to comply with the requirements of § 45-24-69.1, it is within the discretion of this Court to dismiss the appeal. Jeff Anthony Properties, 853 A.2d at 1232. In this case, Defendants have not alleged prejudice for inadequate notice, and the record does show that Defendants were served with a summons of this appeal on October 29, 2018. Therefore, this Court finds that to the extent Plaintiff failed to provide the requisite affidavit of notice, Defendants were not prejudiced by this absence, and dismissal or remand is not warranted. See Jeff Anthony Properties, 853 A.2d at 1233 (finding motion justice erred in dismissing appeal for notice deficiencies where intervenors were not "victims of prejudice" and "could have participated at every turn.").
B
Interpretation of Consent Order
The Order provides: "[t]he existing sign cannot be changed, replaced or the use of the signage modified unless it is in accordance with the existing ordinances that are in effect at the time of the change, replacement or modification of its use." See Consent Order at 1-2, WC-2006-539, Sept. 21, 2009. The Town's zoning ordinances with regards to electronic signage has not changed since the creation of the Order. The zoning ordinance states that "[a]ll signs . . . that are self-illuminated utilizing light-emitting diodes (LED), . . . are not allowed in any zoning district." Westerly Zoning Ordinances § 260-86.D.2. Therefore, under the Order and the Town zoning ordinances, Plaintiff cannot change, replace, or modify its LED sign absent a permit.
Our Supreme Court held that '"[a]lthough [a consent order] receives a court's imprimatur, [it] is in essence a contract and therefore must be construed as a contract."' Arnold v. Arnold, 187 A.3d 299, 311 (R.I. 2018) (quoting Vanderheiden v. Marandola, 994 A.2d 74, 78 (R.I. 2010)). Under the contract interpretation, this Court will look to the Order '"in its entirety"' to determine whether it is '"clear and unambiguous."' Id. (quoting W.P. Associates v. Forcier, Inc., 637 A.2d 353, 356 (R.I. 1994)). The Order is ambiguous "when it is reasonably and clearly susceptible to more than one interpretation." Id. If the Court finds this Order is clear and unambiguous, "the task of judicial construction is at an end and the agreement must be applied as written." W.P. Associates, 637 A.2d at 356. The Court will view the Order "in its entirety" and give "plain, ordinary, and usual meaning" to its language. Id.
Plaintiff maintains that its actions did not violate the Order because it performed necessary maintenance on the original sign and did not change, replace, or modify the sign. Alternatively, Plaintiff seeks a declaration that it be permitted to continue to use the current sign at the Property subject to its application for a permit from the Town. In response, Defendants argue that the Order and zoning ordinances are clear and unambiguous, and that Plaintiff erected a new LED sign in violation of both.
When "carrying out the process of determining the meaning of words" in a statute or contract, "reference to contemporaneous dictionaries is appropriate and often helpful." Chambers v. Ormiston, 935 A.2d 956, 962 (R.I. 2007). The term "change" is defined as "to make (a thing) other than what it was; to render different, alter, modify, transmute[.]" The Compact Edition of the Oxford English Dictionary 377 (1989). The term "replace" is defined as "to make partial changes in; to change (an object) in respect of some of its qualities; to alter or vary without radical transformation." Id. at 2495. Applying these definitions to the language of the Order, it is clear and unambiguous that the Order prohibited Plaintiff from adding a new sign and from altering either the sign's display or the physical characteristics of the sign.
The sign presently situated at the Property is clearly a new sign. There are visible differences from the original sign, for which Plaintiff received a permit. Despite Plaintiff's claim that it merely carried out repairs to the sign following hurricane damage, the current sign has a display screen of different dimensions from that of the original. Photographs show visible unpainted wall behind the current sign that was previously concealed by the original LED sign, and Reichert testified to this fact before the Board. See Westerly Zoning Board of Appeals Special Meeting Tr. 33:3-13, Oct. 3, 2018 (Tr. I). Reichert further testified that when he questioned the construction crew who were working on the sign in December 2017, they indicated they were replacing the sign. Id. at 22:8-10. Plaintiff's argument that it was simply performing maintenance on the sign is therefore unavailing. The evidence in the record demonstrates that Plaintiff's actions violate the Order prohibition on changing, replacing, or modifying the sign.
It is axiomatic that "if the purpose of [a consent order] is clear from its terms," then "the intent of the parties must control." Arnold, 187 A.3d at 313. In Arnold, our Supreme Court held that the purpose of a consent order between the parties regarding easement rights was "to resolve all disputes between the parties," and not to grant the plaintiffs more enjoyment of their property. Id. Similarly, the intent of the Order between Plaintiff and the Town was not to give Plaintiff some unequivocal right to display its sign; instead, the Order served to resolve the zoning ordinance violations without forcing the parties to bring the matter before the Board or the Superior Court. Therefore, as in Arnold, this Court will not permit Plaintiff to "avoid the plain terms of the very agreement that they . . . willingly entered into" by using a pedantic argument about what constitutes replacement of its sign. 187 A.3d at 314.
Accordingly, the Court finds that the new screen on Plaintiff's sign is a "change" or "replacement" under the Order and must comport with the Town's existing zoning ordinances on signage if it is to remain at the Property. The Court now turns to the Board's decision.
C
The Zoning Board Decision
Following the December 2017 replacement of the sign, Plaintiff applied for a sign permit in January 2018. See Pl.'s Appeal to Board, Sign Permit Application Ex. A, Jan. 16, 2018. On January 29, 2018, Reichert issued a letter denying the permit application. See Pl.'s Appeal to Board, Ex. D. In his letter, Reichert determined that the Order prevented Plaintiff from replacing the old sign with one that did not conform with the Town's zoning requirements, that the sign was erected in December without permits, and that the Town zoning ordinances did not permit the sign. Id. at 1-2. Plaintiff submitted an Application for Appeal to the Board on February 26, 2018.
The Board met three times prior to issuing a decision. On July 19, 2018, Reichert gave an opening statement in support of his denial of Plaintiff's permit application, and the Board heard testimony from Plaintiff's counsel. See Board Meeting Minutes 1-2, July 19, 2018. On August 15, 2018, the matter was continued due to scheduling issues with Plaintiff. See Board Meeting Minutes, Aug. 15, 2018. The Board then heard argument on October 3, 2018. See Board Meeting Minutes, Oct. 3, 2018. At the October meeting, Plaintiff argued that the sign is a pre-existing, nonconforming use that should be allowed to continue and that it only replaced the sign casing as necessary maintenance. Id. at 2. Reichert testified that he spoke to the sign installers and pointed out that the sign permit application was for the replacement of the sign damaged by Hurricane Sandy. Id. Reichert also presented evidence in the form of photographs, which show unpainted space behind the current sign, demonstrating that it has different dimensions than the original sign permitted under the Order. Pl.'s Appeal to Board, Sign Permit Application Ex. A, Jan. 16, 2018.
The Board issued its decision on October 8, 2018. See Zoning Board of Appeals Decision. The Board found that Plaintiff's actions constituted a "replacement" of the nonconforming sign and did not meet the definition of "maintenance" or "repair" that would be permitted under the Order. Id. at 3. The Board found that maintenance on the sign would include work such as "painting, tightening, cleaning, testing, removing broken fasteners and bringing an article back to operational condition," and that repair would mean "rejuvenation of nonworking parts [or] replacing existing parts with identical parts." Id. Because Plaintiff replaced the sign with one of a different size that had a new casement and different parts, the Board determined Plaintiff replaced the sign in violation of the Order and the Town's zoning ordinances. Id. On this basis, the Board affirmed Reichert's denial of Plaintiff's sign permit application and ordered Plaintiff to remove the prohibited sign within thirty (30) days after the Board's decision was recorded. Id. at 3-4.
This Court will affirm the decision of a zoning board of review where that decision is supported by substantial evidence. DeStefano v. Zoning Board of Review of City of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979). Our Supreme Court defined substantial evidence as "more than a scintilla but less than a preponderance." Lischio, 818 A.2d at 690 n.5. Here, the Court finds that the Board's decision finding Plaintiff's new sign to be a replacement in violation of both the Order and the Town's zoning ordinances on signage is supported by credible, substantial evidence in the record.
The Board heard Reichert's testimony that the new sign was visibly different from the original sign. Reichert testified that "on the side of the building, the older paint coat was now visible," making it "clear that it's a different sign" affixed in the same location. Tr. I at 33:3-7. Reichert's testimony was supported by two photographs of the new sign, which made it "very clear . . . that those are two different signs." Id. at 33:10-11. Our Supreme Court has previously found that testimony from a zoning official constitutes substantial evidence to support a zoning board decision. See Mill Realty Associates v. Crowe, 841 A.2d 668, 673 (R.I. 2004) (finding unequivocal and uncontradicted testimony of zoning enforcement officer that property could be connected to public water supply constituted substantial evidence to support zoning board decision). Reichert's testimony, along with the accompanying photographs, is therefore sufficient for the Board to find that the current sign was a replacement. Furthermore, the Board extensively discussed the difference between maintenance and replacement. See Tr. I at 22:11-21; Westerly Zoning Board of Appeals Special Meeting Tr. 40:15-41:3, July 19, 2018 (Tr. II). Thus, this is not a case where the Board fails to "reveal the nature of its knowledge" as to whether Plaintiff's actions were permissible because the Board "disclosed on the record that observations or information upon which it acted." Toohey v. Kilday, 415 A.2d 732, 738 (R.I. 1980) (holding zoning board abused its discretion where it relief on testimony of neighboring property owners, which has no probative value, and failed to disclose evidence it used to establish character of neighborhood at issue).
Plaintiff's argument that any modifications to its sign were mere incidents of repair is unavailing. Plaintiff testified that it only replaced a "casing" from the sign, "which is just a piece of sheet metal that goes over the thing." Tr. I at 33:22-23. However, this explanation does not account for what is clearly a different display screen with noticeably different dimensions. In addition, Plaintiff's application for a sign permit shows the request was for "Replacement and Repair of LED sign damaged by Hurricane Sandy." See Pl.'s Appeal to Board, Sign Permit Application Ex. A. The Board also heard Reichert testify that the construction crew workers told him they were "putting up a new sign." See Board Meeting Minutes at 2, July 19, 2018. It is well settled that zoning boards, which are "statutory bodies," the powers of which are "legislatively delineated," may accept hearsay testimony. RICO Corp. v. Town of Exeter, 787 A.2d 1136, 1144 (R.I. 2001). Similarly, administrative agencies may consider hearsay evidence so long as they consider the credibility and probative value of that evidence when balanced against its efficiency. DePasquale v. Harrington, 599 A.2d 314, 316 (R.I. 1991). Because the hearsay evidence came from the reliable testimony of a zoning enforcement officer, the Board did not err by considering such testimony. Plaintiff's contention that the Board's decision was "clearly erroneous" because it ignored Plaintiff's testimony is therefore without merit. See Mendonsa v. Corey, 495 A.2d 257, 263 (R.I. 1985) (finding substantial evidence to support zoning board decision where board heard conflicting expert testimony, because board was in best position to weigh credibility).
Accordingly, the Board's finding that Plaintiff replaced the sign, in violation of the Order, is not clearly erroneous and is supported by substantial, competent evidence of the record. This Court, therefore, affirms the decision and findings of the Board.
IV
Conclusion
For the above reasons, Plaintiff's request for a declaratory judgment that it did not violate the Order is denied. Plaintiff's replacement of the LED sign clearly violates the plain and unambiguous terms of the Order. Plaintiff's zoning appeal is denied, and the Board's decision is affirmed. There is substantial evidence on the record to support the Board's decision, and substantial rights of the Appellant have not been prejudiced.
Counsel shall submit an appropriate order for entry.