Richard Carlucci and NGA Le v. The City of Warwick Zoning Board of Appeals, et al.

Warwick, Rhode Island real property lawyers represented the parties in a planning and zoning dispute.

The Carluccis and Mr. King are neighbors in Warwick, each residing on abutting waterfront lots. The Carluccis' property is located at 153 Charlotte Drive in Warwick, Rhode Island. Mr. King owns the property located at 161 Charlotte Drive, Warwick, Rhode Island. On December 19, 2023, the Building Official for the City of Warwick issued a building permit for the construction of two decks on Mr. King's property. The Carluccis appealed the issuance of the permit to the Board and a hearing was held on March 12, 2024. At the hearing, counsel for Mr. King noted that Charlotte Drive is comprised of thirty-one lots, twenty-eight of which have decks. Twenty-six of those twenty-eight lots with decks are nonconforming. After hearing arguments, the Board denied the appeal. (R. Ex. D - Zoning Board Decision at 44-46.) The Carluccis appealed that determination to the Superior Court on April 15, 2024.





Section 45-24-69(a) grants the Superior Court jurisdiction to review decisions from local zoning boards. Such review is governed by § 45-24-69(d), which 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 prejudiced because of findings, inferences, conclusions, or decisions 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).



In other words, this Court "reviews the decisions of a plan commission or board of review under the 'traditional judicial review' standard applicable to administrative agency actions." Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998) (internal quotation omitted). The Court is "limited to a search of the record to determine if there is any competent evidence upon which the agency's decision rests. If there is such evidence, the decision will stand." E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 285-86, 373 A.2d 496, 501 (1977) (emphasis added). The Court may not substitute its judgment for that of the zoning board with respect to the weight of evidence, questions of fact, or credibility of the witnesses. Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986). However, this Court conducts a de novo review of questions of law. Tanner v. Town Council of Town of East Greenwich, 880 A.2d 784, 791 (R.I. 2005). The burden is on the applicant "seeking relief . . . to prove the existence of the conditions precedent to a grant of relief." DiIorio v. Zoning Board of Review of City of East Providence, 105 R.I. 357, 362, 252 A.2d 350, 353 (1969).



Carlucci v. The City of Warwick Zoning Bd. of Appeals, C. A. KC-2024-0349 (R.I. Super. Nov 29, 2024)

The decision of the City of Warwick Zoning Board of Appeals is affirmed conditioned on Mr. King ensuring the deck is at least ten feet from the property line.