Town of Coventry v. Forsons Realty LLC

June 23, 2022

Supreme Court

No. 2020-64-Appeal.
(KC 16-1023)

Town of Coventry :

v. :

Forsons Realty LLC et al. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2020-64-Appeal.
(KC 16-1023)

Town of Coventry :

v. :

Forsons Realty LLC et al. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Robinson, for the Court. The plaintiff, the Town of Coventry (the

Town), appeals from the Kent County Superior Court’s November 4, 2019 entry of

final judgment in favor of the defendants, Forsons Realty LLC (Forsons), Ferrara

Mechanical Services Inc., and Daniel Ferrara (collectively defendants). On appeal,

the Town contends that the trial justice erred: (1) in her conclusions which led her

to allow the defendants to conduct heavy-duty vehicle inspections on their property

located at 225 Hopkins Hill Road in Coventry, Rhode Island (the Property) that was

the site of a pre-existing legal nonconforming use; and (2) in holding that there had

not been an impermissible expansion of that legal nonconforming use. Focusing on

these contentions, the Town asks this Court to reverse the trial justice’s entry of final

judgment in favor of the defendants.

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For the reasons set forth in this opinion, we affirm the final judgment of the

Superior Court.

I

Facts and Travel

In view of the nature of the issues raised on appeal and our ultimate resolution

of those issues, we need set forth only the most basic facts that form the background

of this case and only the barest essentials of the litigation that ensued.

This case arises from a dispute regarding the activities of an industrial

enterprise which conducts its business on the Property. The Property is located in

an R-20 zone, which zone is described in the Town’s Zoning Ordinance as consisting

of “quiet, higher density residential areas of the Town, plus certain undeveloped

areas where similar residential development will likely occur in the future.”

On May 4, 1981, the Town’s Zoning Ordinance was adopted. The record

reflects that prior to 1981 “the Property was being used for an industrial use;” thus,

the use of the Property after the adoption of the Zoning Ordinance in May 1981 was

considered to be a legal nonconforming use. Decades later, on July 3, 2008, Forsons

purchased the Property by warranty deed from its predecessor-in-title, one Robert E.

Sandberg. A letter that was issued by the Town’s Zoning Enforcement Officer in

response to a request by Forsons for a zoning certificate prior to the purchase stated

in relevant part:

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“This is a commercial business in a residential zone. The
use of this property for commercial welding, machine
shop, heavy duty truck repair & heavy-duty equipment
repair is allowed because this property pre-existing non-
conforming rights to do so. These rights run with the
property not the owner; if the property is sold the new
owner could continue to use the property for the same
activities.”

In September of 2016, some eight years after the purchase of the Property by

Forsons, the Town corresponded with defendants expressing concerns about the

zoning law implications of various activities taking place on the Property. On

October 12, 2016, the Town issued a Notice of Violation. Then, on October 14,

2016, the Town filed a complaint in the Superior Court pursuant to G.L. 1956

§§ 45-24-60 and 45-24-62, alleging that defendants were in violation of certain

specified provisions of the Coventry Zoning Ordinance.

A bench trial of three days duration was held in November and December of

2017, eventuating in a written decision by the trial justice.1 Several witnesses

testified with respect to the use of the Property and the volume of business conducted

thereon. On September 21, 2018, the trial justice issued a well-reasoned written

decision, in which she ruled in defendants’ favor and allowed, inter alia, heavy-duty

1
The issuance of the trial justice’s decision was delayed because of earnest,
although ultimately unsuccessful, efforts by the parties to arrive at a global
settlement.
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vehicle inspections to be performed, albeit subject to certain specific conditions.

Final judgment in defendants’ favor entered on November 4, 2019.2

There remain only two issues of genuine significance for us to address on

appeal—viz., (1) the trial justice’s decision to allow heavy-duty vehicle inspections

to be performed on the Property provided that certain explicit conditions were

adhered to; and (2) the Town’s claim that there had been an impermissible expansion

of the pre-existing legal nonconforming use.3 We shall proceed to address those two

issues seriatim.

II

Standard of Review

It is a basic principle that “[f]actual findings of a trial justice in a nonjury case

are entitled to great weight and will not be disturbed on appeal unless found to be

clearly wrong or unless the trial justice has overlooked or misconceived material

evidence.” Town of West Greenwich v. A. Cardi Realty Associates, 786 A.2d 354,

360 (R.I. 2001). Moreover, “[i]f, as we review the record, it becomes clear to us that

the record indicates that competent evidence supports the trial justice’s findings, we

2
We commend the trial justice for her patience and for her pragmatism in
presiding over the ultimate resolution of the issues that this case involved. (The trial
justice’s rescript decision is available at Town of Coventry v. Forsons Realty LLC,
No. KC 16-1023, 2018 WL 4681463 (R.I. Super. Ct. Sept. 21, 2018)).
3
We also note that, in view of our eventual resolution of this appeal, it is not
necessary for us to address the issue of equitable estoppel.
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shall not substitute our view of the evidence for [that of the trial justice] even though

a contrary conclusion could have been reached.” Grady v. Narragansett Electric

Co., 962 A.2d 34, 41 (R.I. 2009) (internal quotation marks omitted).

III

Analysis

A

Heavy-Duty Vehicle Inspections

On appeal, the Town contends that the trial justice erred in allowing heavy-

duty vehicle inspections to be performed on the Property, even with the proviso that

certain specific restrictive conditions be adhered to.

We begin by noting the explicit language in the parties’ “Joint Statement of

Undisputed Facts,” which unequivocally states that the Town had issued a letter to

defendants classifying the use of the Property as “a pre-existing, non-conforming

use * * * of a machine shop, welding, heavy duty truck repair, and heavy-duty

equipment repair.” (Internal quotation marks omitted.)

Significantly, the trial justice expressly alluded to that undisputed fact when

she stated in her decision: “[T]he Town does not address at all in [its] post-trial

memorandum whether the Property’s use as a machine shop is anything but a legal

nonconforming use. Therefore, whether or not Defendants are permitted to operate

an industrial business on the Property is not in dispute.”

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Accordingly, we are specifically concerned with whether the conducting of

heavy-duty vehicle inspections (the extent of those inspections being explicitly and

significantly limited by the trial justice) constitutes an illegal expansion of that pre-

existing nonconforming use. With respect to the heavy-duty vehicle inspection

issue, the trial justice expressly limited the extent of such inspections as follows:

“As to the inspection issue, inspections will be permitted
on vehicles that come onto the Property for regular service
only. Inspections will also be limited by the condition that
no more than three heavy duty trucks or trailers—i.e.,
vehicles with three or more axles—may be on the Property
at any one time for the purposes of an inspection.”

It is our opinion that, such heavy-duty vehicle inspections are an inherent part

of the business of “heavy duty truck repair”—which repair activity, as noted supra,

the Town has recognized as being a part of the pre-existing nonconforming use at

issue in this case. See Jones v. Rommell, 521 A.2d 543, 545 (R.I. 1987) (“A change

of use results when the proposed use is substantially different from the

nonconforming use to which the premises were previously put * * *.”) (internal

quotation marks omitted). In our judgment, the trial justice did not err in her ruling

concerning heavy-duty vehicle inspections.

Although it is our opinion that the trial justice did not err in allowing heavy-

duty vehicle inspections to be conducted to a carefully limited extent, we are unable

to agree with the portion of her decision which states that the right to conduct such

inspections “will not run with the land.” Rather, it is our opinion that, as an inherent
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aspect of the legal nonconforming use of heavy-duty truck repair on the Property,

the performance of heavy-duty vehicle inspections remains permissible so long as

that legal nonconforming use continues unabandoned and unabated. See Duffy v.

Milder, 896 A.2d 27, 38 (R.I. 2006) (“It is well settled that a lawful nonconforming

use is not discontinued when the title to the property is conveyed to a new party.”);

Harmel Corp. v. Members of Zoning Board of Review of Town of Tiverton, 603 A.2d

303, 306 (R.I. 1992) (stating that “a mere change in ownership does not destroy the

pre-existing nonconforming use”); see also Preston v. Zoning Board of Review of

Town of Hopkinton, 154 A.3d 465, 469 (R.I. 2017); RICO Corp. v. Town of Exeter,

787 A.2d 1136, 1145 (R.I. 2001).

B

The Increased Volume of Business

The Town also contends that the trial justice erred in ruling that the increase

in the volume of business on the Property did not constitute an impermissible

expansion of the legal nonconforming use. The Town both cites and seeks to

distinguish our opinion in Cohen v. Duncan, 970 A.2d 550 (R.I. 2009), in support of

its argument that “the evidence in this case is that business and patronage have

increased at [the Property,] and the increase of business has had a deleterious effect

on the neighborhood.” (Emphasis omitted.) In our opinion, however, the Town’s

argument in that regard is unavailing. It should first be noted that this Court in Cohen

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specifically observed and cited Rhode Island precedent to the following effect: “Our

case law has established that a change of use occurs when the proposed use is

substantially different from the nonconforming use to which the premises were

previously put * * *.” Cohen, 970 A.2d at 565 (emphasis added) (internal quotation

marks omitted); see Harmel Corp., 603 A.2d at 305; Jones, 521 A.2d at 545; see

also Bauer v. Waste Management of Connecticut, Inc., 662 A.2d 1179, 1189 (Conn.

1995).

As is so often the case, an adverb is of great significance. In this instance, the

adverb “substantially” in the just-quoted sentence from the Cohen opinion is a

critically important qualifier. In that vein, it should be emphasized that the trial

justice in the case before us, after considering the testimony of the several witnesses

and the evidentiary exhibits in the record, supportably found that, while there had

been to some degree an adverse effect on the neighborhood due to the success of

defendants’ business, that effect could be mitigated as a result of the restrictions

ordered by the trial justice. See Town of West Greenwich, 786 A.2d at 360.

The record in this case reflects that, apart from some relatively minor increase

in the volume of business and associated activities, the manner in which defendants

have used the Property has remained substantially unchanged since the time when

their predecessor-in-title operated his business on the Property; the types of business

activity being conducted on the Property have not changed. See Cohen, 970 A.2d at

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565; Harmel Corp., 603 A.2d at 305; Jones, 521 A.2d at 545; see generally 4 E.H.

Ziegler, Jr. et al., Rathkopf’s The Law of Zoning and Planning § 73:15 (June 2022

Update) (“An increase in volume or intensification of use has been held permissible

so long as the basic character of the use is unchanged and substantially the same

facilities are used.”).

At the same time, it should not be forgotten that this Court has historically

been less than sanguine about nonconforming uses in general. See, e.g., Duffy, 896

A.2d at 37 (“[W]e have subscribed to the view that a lawful nonconforming use is a

thorn in the side of proper zoning and should not be perpetuated any longer than

necessary.”) (internal quotation marks omitted); RICO Corp., 787 A.2d at 1144-45

(stating that the law “generally views nonconforming uses as detrimental to a zoning

scheme, and the overriding public policy of zoning * * * is aimed at their reasonable

restriction”) (internal quotation marks omitted).

It should be recognized that the trial justice was by no means insensitive to

the effect on the neighborhood of the increase in business and activity on the

Property; and she saw to it that meaningful remedial measures were undertaken. In

that regard, we deem it important to quote the following portion of the trial justice’s

rescript decision:

“[T]he Court is not blind to the fact that these changes—
this increase in business and activity—has had a negative
impact on the neighborhood and on those abutting the
Property; the use has increased enough to become a
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disturbance to those in using their property. This Court
recognizes that Defendants need to take steps to minimize
the impact their use of the Property has on their neighbors.
Given the negative effect on the neighborhood, this Court
will order reasonable restrictions on the use of the Property
so that the use is fair to the neighbors but also does not
negatively impact Defendants’ ability to run their
business.”

Accordingly, keeping in mind the applicable standard of review, it is our

opinion that the trial justice was neither “clearly wrong” nor has she “overlooked or

misconceived material evidence” in determining that there had been no

impermissible expansion of the legal nonconforming use in violation of the Town’s

Zoning Ordinance. Town of West Greenwich, 786 A.2d at 360.

IV

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court. The record may be returned to that tribunal.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Town of Coventry v. Forsons Realty LLC et al.

No. 2020-64-Appeal.
Case Number
(KC 16-1023)

Date Opinion Filed June 23, 2022

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice William P. Robinson III

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Susan E. McGuirl

For Plaintiff:

David D’Agostino, Esq.
Attorney(s) on Appeal
For Defendants:

Patrick J. McBurney, Esq.

SU-CMS-02A (revised June 2020)