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Jackson v. City of Woonsocket Zoning Board of Review

Superior Court of Rhode Island

August 14, 2014

GEORGE G. JACKSON
v.
CITY OF WOONSOCKET ZONING BOARD OF REVIEW

Providence County Superior Court

For Plaintiff: George G. Jackson, pro se

For Defendant: Michael J. Marcello, Esq.

DECISION

VOGEL, J.

George G. Jackson (Appellant), pro se, brings this appeal from a decision by the City of Woonsocket Zoning Board of Review (the Zoning Board or Board), denying his application for dimensional relief. The Court exercises jurisdiction over this matter pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, this Court remands the case to the Zoning Board to make additional factual findings and to apply the correct dimensional variance standard.

I

Facts and Travel

The Appellant is the owner of a single-family home located at 170 Spring Street in Woonsocket, Rhode Island, and delineated as Tax Assessor's Plat 13, Lot 4 (the Property). (Zoning Board Hr'g Tr. (Tr.) 4, Oct. 9, 2012.) The Property is comprised of approximately 37, 313 sq. ft. and is located in an R-3 Medium Density Single and Two-Family Residential District. (Tr. at 4.)

The Appellant wishes to build a six-foot fence around the Property. (Tr. at 5.) Appellant's proposed plan includes white fence posts, and either a black or green colored see through wire vinyl fence. (Tr. at 6.) In order to construct the fence, Appellant requests relief from Woonsocket Zoning Ordinance (Ordinance) 6.2-1. Appellant requests the dimensional variance for security, privacy, odor and noise reasons. (Tr. at 6.)

Ordinance 6.2-1 states that in R-3 Districts, "[f]ences located in front yards shall not exceed three (3) feet in height. Fences located in side yards shall not exceed four (4) feet in height. Fences located in rear yards shall not exceed six (6) feet in height." Woonsocket, Rhode Island, City Code app. C, 6.2-1. The Appellant's proposed plan requires three feet of relief from the Ordinance in the front yard, and two feet of relief in the side yard.

Prior to requesting the dimensional variance, Appellant began constructing the fence at the Property. (Zoning Bd. R. Ex. A: Letter from Abutter.) However, during the installation of the fence, the inspector informed Appellant that a permit was necessary before a fence could be constructed. (Tr. at 9.) The Appellant had not obtained the requisite permit. (Tr. at 8-9.)

At a properly advertised hearing, Appellant presented several arguments to the Zoning Board. The Appellant stated that the fence would be used to support bushes and to increase privacy as well as provide security. (Tr. at 6.) Further, Appellant testified the fence also would be used to combat the noise and exhaust fumes from passing police cars, fire trucks, and garbage trucks. (Tr. at 6-7.) Additionally, Appellant asserted that the fence would increase traffic safety because a motorist would be more focused on the road instead of his yard. (Tr. at 6.) The Appellant reasoned that the fence was necessary to protect his garden from people and pollution. (Tr. at 7.) Lastly, Appellant expressed doubt that a three-foot fence would be sufficient to stop people from trespassing on his property and would not provide adequate privacy. (Tr. at 13.)

Although no abutters appeared before the Zoning Board in opposition to the dimensional variance, one objector submitted a letter to the Zoning Board (Tr. at 19, 20.) In the letter, the abutter expressed concerns about the proposed fence. (Zoning Bd. R. Ex. A: Letter from Abutter.) She questioned the appearance of the fence, explaining that Appellant had failed to give her an adequate description of the proposal. Id. The abutter also complained that Appellant had already installed the proposed six-foot white fence posts on the Property and complained that some of the posts were installed on top of an existing two-foot retaining wall, increasing the height of those posts to eight feet. Id. The abutter worried that the fence may cause traffic problems since the Property is a corner lot, and "[o]rdinance 6.5 provides that every improvement installed or planted on a corner within any district . . . shall be constructed, installed, or planted so as not to cause any obstruction of vision between the height of three (3) feet and eight (8) feet." Id. Lastly, the abutter questioned Applicant's suggestion that any fence would diminish noise problems emanating from the neighboring church. Id.

In addition to statements by the abutter, a member of the Board spoke of her personal experiences regarding the area in which the Property is situated. Board Member Dumais explained that she lives in the area, and she has not observed fire trucks and police cars frequenting the area. (Tr. at 11.) She further stated that she has not experienced any odor issues from passing garbage trucks. (Tr. at 12.)

Board Members Frechette and Masse voiced concerns about the height of the fence, particularly if mounted atop an existing two foot wall. (Tr. at 10; Tr. at 15.) Additionally, Board Member Dumais questioned whether a wire fence would stop exhaust fumes from entering the property. (Tr. at 11.) Further, while Appellant argued the fence was needed for privacy, Board Member Masse expressed doubt that a wire fence would serve that purpose. (Tr. at 15.)

Before a decision was rendered, Board Member Frechette stated, "I'm going to move to make a motion to deny the application, and after the vote's been taken, I'll give my reason why." (Tr. at 22.) The Board's counsel, Mr. Carroll, advised the Board that any decision must be based upon findings of fact. (Tr. at 22.) In response to Mr. Carroll's advice, Board Member Michaud indicated that they would "continue to operate in a manner that the Zoning Board has been run for the last decade." (Tr. at 24.) The Board did ask Mr. Carroll "to make sure that [the decision] would be adequate in [his] opinion, legally." (Tr. at 34.) Mr. ...


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