R.I. Sch. of Design v. Begin

RHODE ISLAND SCHOOL OF DESIGN and RISD HOLDINGS, INC., Plaintiffs, v. DENNIS BEGIN, in his capacity as a TOWN OF BARRINGTON ZONING OFFICER; TOWN OF BARRINGTON ZONING BOARD OF REVIEW; MARK FREEL, PAUL BLASBALG, THOMAS KRAIG, LADD MEYER, and DAVID RIZZOLO, in their capacities as members of the TOWN OF BARRINGTON ZONING BOARD OF REVIEW, Defendants.

C. A. No. PC-2020-06584

Superior Court of Rhode Island, Providence

November 12, 2021

For Plaintiffs: Mitchell Edwards, Esq.; Timothy M. Zabbo, Esq.

For Defendants: Michael DeSisto, Esq.; Kathleen M. Daniels, Esq. Peter F. Skwirz, Esq.

DECISION

McGUIRL, J.

Under G.L. 1956 § 45-24-69, Plaintiffs Rhode Island School of Design and RISD Holdings, Inc. (collectively, RISD) appeal a decision made by Defendants, Dennis Begin, in his capacity as a Town of Barrington Zoning Officer, and Mark Freel, Paul Blasbalg, ^[1] Thomas Kraig, Ladd Meyer, and David Rizzolo, in their capacities as members of the Town of Barrington Zoning Board of Review (collectively, the Zoning Board). (Compl. ¶ 1.) The Zoning Board affirmed the findings of Defendant Dennis Begin, which stated that RISD may not rent its property located at 15 Freemont Avenue in the Town of Barrington, Rhode Island (15 Freemont) through online short-term rental platforms unless they are renting to a single family related by blood or marriage or to no more than three unrelated persons, pursuant to the definition of "household" under Section 185-5 of the Town Zoning Ordinance (Ordinance). See Zoning Board Decision, June 18, 2020 (Decision). Mr. Begin also stated that RISD may not use the property for "events." Id. The Court has jurisdiction under § 45-24-69.

I Facts and Travel

A Use of 15 Freemont

The Rhode Island School of Design is a Rhode Island non-profit corporation with its principal place of business at 2 College Street, in the City of Providence, Rhode Island, which owns RISD Holdings, Inc. as a wholly owned, non-profit subsidiary. (Compl. ¶¶ 2-3.) Within the Town of Barrington (Barrington), RISD owns two properties: 239 Nayatt Road known as the "Tillinghast Property" (Tillinghast Property) and 15 Freemont. Id. ¶¶ 8-9. RISD's two Barrington properties abut each other. (Compl., Ex. D (Colasanto Aff.), ¶ 2.) RISD Holdings Inc. purchased 15 Freemont Avenue in December of 2017. (June 18, 2020 Barrington Zoning Board Hr'g Tr. (Tr.) 7:11-17.) The Tillinghast Property is located in the RE district, which is zoned for recreational and educational purposes. (Compl. ¶ 8.) 15 Freemont is located in the R-40 district, which is zoned for single-family residential use. (Barrington Code of Ordinances, (the Barrington Code) ch. 185, § 8(B) (2019); Tr. 55:10-11, June 18, 2020.) Section 185-5 of the Ordinance states that no more than one "household," consisting of either a family or no more than three unrelated persons, may occupy a single-family dwelling unit. (The Barrington Code, ch. 185, § 5 (1994).) RISD began listing 15 Freemont for short-term rentals on websites such as Airbnb during the summer of 2019. (Colasanto Aff. ¶ 4; Tr. 7:21-23, June 18, 2020.)

RISD does not host events at 15 Freemont except for monthly academic retreats during the academic year. (Colasanto Aff. ¶ 5; Tr. 9:12-20, June 18, 2020.) Anne Colasanto (Ms. Colasanto), who oversees communication with renters through Airbnb and takes care of the on-site management, testified that the Airbnb post for 15 Freemont indicated events were not permitted and that there was a noise restraint. (Tr. 37:4-9, June 18, 2020.) RISD instead encourages guests who seek to hold events to reserve the Tillinghast Property. (Colasanto Aff. ¶ 5; Tr. 9:12-20, June 18, 2020.) The description for 15 Freemont on the Airbnb site indicated, "[a] parcel of land [the Tillinghast Property] next to the house allows for wedding and formal events. The house is set in a quiet residential neighborhood so prior approval is required. The area is leveled for tent set up that can be used for an additional fee." (RISD's Mem. Supp. Appeal to the Zoning Board, Ex. B.) Should any large events occur at 15 Freemont, guests would have to get a special use permit. (Tr. 68:12-19, June 18, 2020.)

Guests have used 15 Freemont for a variety of purposes, including holding "dinner parties, birthday parties, college friends' reunions, and the occasional small-scale backyard wedding." (Pls.' Mem. 3.) Guests have also used 15 Freemont as a place to stay while their homes were being worked on and to hold religious celebrations such as bar mitzvahs. (Tr. 11:22-24, June 18, 2020.) If the guests ever used the property as a place to hold a party or other gathering, the fee for the rental would not change. (Tr. 12:2-7, June 18, 2020.)

Through Airbnb, RISD charges guests a reservation fee, in proportion to the guests' length of stay, based on a rental fee that does not change depending on the number of guests or the type of activity that the guests seek to conduct. (Colasanto Aff. ¶¶ 4-5; Tr. 12:2-7, June 18, 2020.) Ms. Colasanto testified at the Zoning Board Hearing that 15 Freemont was not available for large gatherings, meaning more than ten people. (Tr. 12:14-22; 16:5-11, June 18, 2020.) Per RISD, as of April 2020, the sites Airbnb and Vrbo contained sixteen other short-term rentals within Barrington. (Colasanto Aff. ¶ 6.) Guests who stay at 15 Freemont typically do not stay for longer than a week. (Colasanto Aff. ¶ 9; Tr. 9:7-11, June 18, 2020.) They often stay for a weekend. (Colasanto Aff. ¶ 9; Tr. 9:7-11, June 18, 2020.) They do not use 15 Freemont in any way as a permanent residence, such as by having mail sent to 15 Freemont or by signing a long-term lease with a landlord. (Colasanto Aff. ¶ 9; Tr. 9:21-10:23, June 18, 2020.) When individuals rent the property at 15 Freemont, they receive a "limited license" and not a lease. (Tr. 10:16-23, June 18, 2020.) At the hearing, Ms. Colasanto identified Section 8.2 of Airbnb's Terms of Service. (Tr. 10:16-23, June 18, 2020.) The terms provided:

"You understand that a confirmed booking of an Accommodation ('Accommodation Booking') is a limited license to you by the Host to enter, occupy and use the Accommodation for the duration of your stay, during which time the Host (only where and to the extent permitted by applicable law) retains the right to re-enter the Accommodation, in accordance with your agreement with the Host." (RISD's Mem. Supp. Appeal to the Zoning Board, Ex. J.)

Outside of short-term rentals, 15 Freemont is largely unoccupied for much of the year and normally has fewer than three unrelated persons staying at the property. (Colasanto Aff. ¶ 13; Tr. 7:18-20, June 18, 2020.)

RISD privately received one complaint regarding 15 Freemont on May 13, 2019, from a neighboring resident. (Pls.' Mem. Supp. Appeal, Ex. I; Colasanto Aff. ¶ 7.) The resident contacted Ms. Colasanto via e-mail and stated that he had been seeing "a lot of activity" at 15 Freemont and noted that he saw "tents being erected for large parties." (Pls.' Mem. Supp. Appeal, Ex. I.) The resident also mentioned that there was a wedding at 15 Freemont. Id. Although this neighbor's complaint is the only such complaint specifically identified in the record and the only one RISD is aware of, the Zoning Board alleges it received multiple complaints from RISD's neighbors.

(Defs.' Mem. 2.) The Zoning Board alleges that Dennis Begin (Mr. Begin), the Town Zoning Enforcement Officer, "received complaints from RISD's neighbors regarding the scope of the events held on [the Freemont] Property, the attendant noise from those events, [and] the number of people staying at the short-term rental." Id. However, the Zoning Board does not identify the source of those complaints, and RISD does not have any information regarding the substance of those complaints. Id.; see also Tr. 35:1-7, June 18, 2020. Barrington never filed any complaints, but it allegedly received complaints from residents. (Defs.' Mem. 2.) The alleged complaints by RISD's neighbors "prompted [Mr. Begin] to investigate" 15 Freemont, triggering the series of events that led to this lawsuit. Id.

B The Zoning Officer's Letters to RISD

On October 1, 2019, in response to the complaints he received from RISD's neighbors, Mr. Begin sent a letter to Anne Colasanto, Director of Campus Conferences and Events, and Mitchell Edwards and John Pariseault, counsel for RISD. (Begin Letter, Oct. 1, 2019.) This was the first time the Zoning Board formally notified RISD of the alleged zoning violations. In this letter, Mr. Begin instructed RISD to "remove any on-line ads that indicate [15 Freemont] may be used for event space and shall post no other ad listing the house for event space." Id. Mr. Begin also indicated that while the Tillinghast Property may be used for events, "no event-related deliveries to or storage may take place on 15 Freemont Ave. property." Id. "Further, no event parking is allowed at 15 Freemont (other than for a wedding party)." Id. Mr. Begin also stated that participants at an event at the Tillinghast Property are not permitted to use the bathrooms at 15 Freemont, and that any tents/chairs/activities related to events at the Tillinghast Property were to be set up "no closer than 100 feet to the south of [15 Freemont] or 150 feet to the north of [15 Freemont], whichever is greater." Id. 15 Freemont could be listed on Airbnb, Mr. Begin said, as long as the listing noted that it may only be rented to a single family related by blood or marriage or to no more than three unrelated persons. Id. On October 17, 2019, RISD responded in a letter to Mr. Begin. (RISD Letter, Oct. 17, 2019.) In this letter, Assistant General Counsel Joshua Grubman, Esq., requested further clarification, and the Town Solicitor, Peter Skwirz, Esq., responded via e-mail on ...