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MacDougall v. The Zoning Board of Town of Warren

Superior Court of Rhode Island

December 15, 2014

JANE MACDOUGALL
v.
THE ZONING BOARD OF THE TOWN OF WARREN, MICHAEL GERHARDT, ALDEN HARRINGTON, PAUL ATTEMANN, STEPHEN P. CALENDA, MARK SMILEY and ANDREW ELLIS, all in their capacities as members of THE ZONING BOARD OF THE TOWN OF WARREN, WATER STREET DOCK CO., INC. and BLOUNT REALTY COMPANY

Providence County Superior Court

For Plaintiff: Robert J. Healey, Jr., Esq.

For Defendant: Anthony DeSisto, Esq.

Stephanie L. Federico, Esq. Andrew M. Teitz, Esq.

DECISION

NUGENT, J.

Before the Court is an appeal from a decision of the Zoning Board of the Town of Warren (Zoning Board). Jane MacDougall (Appellant) seeks reversal of the Zoning Board's decisions of February 20, 2013 (Decisions), granting the applications of Blount Realty Company and Water Street Dock Company, Inc. (Applicants) for both a special use permit and a dimensional variance. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth in this Decision, this Court remands the matter to the Zoning Board for further proceedings consistent with this Decision.

I

Facts and Travel

The subject premises are designated as Lots 11, 110, 111, 109, 25, 3, 98, 114, and 107 on Plat 6 of the Tax Assessor's Map in Warren, Rhode Island and are owned by Applicants. The premises are located at 461 and 463 Water Street in the Town of Warren in an area zoned "W" for Waterfront District. On September 25, 2012, Applicants filed petitions for a special use permit seeking relief from Sections 32-57 and 32-74 of the Town of Warren Zoning Ordinances (Ordinances) and for a dimensional variance seeking relief from Section 32-78 of the Ordinances, with amended petitions being filed on November 29, 2012. The Applicants sought the expansion of legal non-conforming use to allow boat manufacturing in a waterfront district and construction of a building—a tent structure—of non-conforming use. Their dimensional variance proposed a rear setback of 0 feet when the required setback is 20 feet; a proposed building coverage of 34% when the maximum coverage allowed is 30%, and a proposed building height of 44 feet when the maximum allowable height is 35 feet. After a public hearing on January 7, 2013, the Town of Warren Planning Board of Review recommended that the Zoning Board approve both applications.

The Zoning Board then conducted a public hearing on the applications for a special use permit and dimensional variance on January 16, 2013. Three people—Ms. Marsha Blount, president of Applicants; Mr. Richard Fitzgerald, a professional structural engineer; and Mr. Ronald Blanchard, a professional civil engineer—testified in favor of the Applicants. Ms. Blount testified as to Applicants' need for a tent structure; Blount Boats has been building vessels since 1949 and is currently building more boats per year and requires a protected construction space to ensure the company remains "competitive and efficient." (Bd. Hr'g Tr. at 5.) She further testified as to all the lots at issue being used for boat and ship manufacturing, and that the uses on the property were in keeping with neighboring land uses. Id. at 7-8. Ms. Blount next addressed the Town of Warren's Comprehensive Plan, which includes a paragraph suggesting the Waterfront area "must recapture its thriving ship building heritage." Id. at 11.

She then testified about the requested dimensional variances that are necessary to permit the construction of larger vessels regardless of weather. Id. at 15-18. Mr. Fitzgerald testified regarding the need for a zero foot setback for the tent structure. Id. at 20-21. He then explained the need for a tent—rather than a permanent structure—that could be taken down to accommodate construction of 180-foot vessels. Id. at 23.

Two members of the public came forward to address their concerns to the Zoning Board. Ms. Ida Hoffman, a neighbor residing at 492 Water Street in Warren, raised the issue of the right of way to the water, known as Shipyard Lane. Id. at 34-35. She also expressed her opinion that the proposed structure was too large for the shipyard and there were already too many buildings. Id. at 36-38. Mr. Blanchard testified in response to concerns over the right of way; it was determined by Mr. Blanchard and Mr. William Nash, a building inspector, that Plat 6, Lot 25 was not recorded as a public right of way and the Blounts are taxed for it. Id. at 39-40. Mr. Andre Asselin, another neighbor, also expressed concern over the alleged right of way and presented a map showing Shipyard Lane. Id. at 41-42. The Zoning Board noted that it had received extensive communications from Appellant, who lives at 500 Water Street in Warren and did not attend the hearing, as well as comments from Mr. Philip Kirby of 40 Haile Street. Id. at 44.

The Zoning Board then engaged in discussion and posed additional questions to some of the witnesses. They agreed to condition their unanimous granting of the special use permit on Coastal Resources Management Council's (CRMC) approval, as well as the Department of Environmental Management's (DEM) approval, and the Building Board of Appeal's approval. Id. at 55. Subsequently, the Zoning Board addressed the application for dimensional variance, which they also unanimously approved, granting the rear setback, the height variance, and the lot coverage variance. Id. at 56-57. The Zoning Board issued its Decisions for both applications on February 20, 2013.

The Appellant timely appealed the Zoning Board's Decisions on March 13, 2013. On appeal, Appellant raises a number of issues, including that the Decisions of the Zoning Board were "defective, " affected by errors of law, and in excess of the authority granted to the Zoning Board. Furthermore, Appellant argues that the Decisions were "defective" because the applications were incomplete and that the hearing and the record were also "defective." She also claims that the Zoning Board acted capriciously in a clearly unwarranted exercise of discretion, that the relief granted is in excess of that ...


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