Tuesday, November 3, 2009

In Johnston, appealing a zoning decision costs $2,000

By By Mark Reynolds

Journal Staff Writer
JOHNSTON — John Jalowy wonders if the local building official has made a bad call, but contesting the inspector’s zoning decision will cost $2,000.

The fee for that type of appeal ranges from $125 to $300 in five nearby communities. In Cranston, the appeal costs $500.

Not seeing anything remarkable about Johnston’s zoning process, Jalowy would like to know why it costs $2,000 in his town.

The answer is that Johnston officials boosted zoning fees in 2004 to bring more revenue to the town. Now, more than five years later, critics say the charge for zoning appeals simply discourages people from exercising their rights.

In the current economic climate, government officials should keep such consequences in mind if they are tempted to offset declining tax revenues by raising various types of fees, said John Marion, executive director of Rhode Island’s Common Cause chapter.

Charging residents $2,000 to appeal the local zoning officer is like charging speeders $2,000 to appear in traffic court and contest a speeding ticket, Marion said.

“People should have the ability to appeal the decisions of government that affect their lives,” he said.

The fee is so exorbitant that it might violate Jalowy’s due process rights under the state Constitution, according to his lawyer.

“If a fee is determined to be excessive, arbitrary and capricious, it would constitute a violation of one’s substantive due process rights,” said the lawyer, Terence Fracassa of Warwick.

Jalowy, acting through a lawyer, recently alleged that some people might be living in an accessory dwelling unit on a neighbor’s property, in violation of zoning laws, and he asked the town’s building official to investigate. On Oct. 20, the official, Bernard J. Nascenzi, ruled that the habitation is legal because the occupants are related to the neighbor.

When the council raised various zoning fees in 2004, George Corrente, who directed Johnston’s Building Department at the time and has since retired, argued that increasing the fees would capture an extra $150,000 to $160,000 in revenue each year.

Since then, the steeper fee schedule has helped the town collect greater revenue from zoning activities, such as issuing building permits.

But the appeals business isn’t booming. Nascenzi is proud to say he’s only seen one appeal since he started working for Johnston in 2005.

That appeal was filed by CapLease, a company and local taxpayer that recently listed $1.6 billion in property assets on its balance sheet and reported more than $89 million in revenues during the first six months of 2009.

CapLease, the owner of FM Global’s former headquarters building, contested a building permit for the construction of FM Global’s new headquarters.

Jalowy, of 737 Central Ave., lives a few miles up the road from CapLease’s building.

He lacks the same resources for dealing with unfavorable zoning actions.

“The fee that he would have to pay to make such an appeal,” said Fracassa, “may make it very difficult, if not impossible, for him to pursue what he thinks is a right that is legitimate.”

Johnston’s zoning ordinance says that fees for various zoning permits, requests and appeals are “not to exceed actual costs incurred for mailing, legal advertising and professional services…”

It isn’t clear how town officials reconciled that language with the appeal fee when they set it at $2,000.

Nascenzi said the fee schedule was established before he started working for the town.

If someone can identify and document “a factual basis” for the $2,000 fee, it might not violate the state Constitution, Fracassa said. If officials studied the fee before they established it, there might be a report that contains such documentation, he said.

“I’m not sure if that has been done,” he added.

Johnston’s zoning ordinance also says that the local Planning Board shall review local zoning rules at reasonable intervals, no less than every five years, and also whenever changes are made to the town’s comprehensive plan.

More than five years have passed since the fee schedule changed and, this past July, at the request of the town’s planner, the Planning Board adopted a new comprehensive plan.

Mayor Joseph M. Polisena, who has been in office for almost three years, did not respond to a request for comment on the situation.

When Fracassa recently asked the Johnston Town Council to review the fee schedule, Polisena likened the excessive fee to other problems he inherited from his predecessor almost three years ago.

“I say this tongue in cheek,” Polisena told the council.

The council has agreed to have town lawyers review the fee and make a recommendation.

Said the Zoning Board’s lawyer, Joseph Ballirano:

“We’re here to serve the people, and help them, not to hurt them with excessive fees.”