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Grzebian v. Melchiori

Superior Court of Rhode Island

April 8, 2015

THOMAS V. GRZEBIAN and MARNEE GRZEBIAN
v.
MATTHEW E. MELCHIORI, ROXANNE MELCHIORI, and THE ZONING BOARD OF REVIEW OF THE TOWN OF NARRAGANSETT

Washington County Superior Court

For Plaintiff: John F. Kenyon, Esq.

For Defendant: Donald J. Packer, Esq. Mark A. McSally, Esq.

DECISION

KRISTIN E. RODGERS, J.

Thomas V. and Marnee Grzebian (the Grzebians or Appellants) appeal from a decision of the Zoning Board of Review of the Town of Narragansett (Zoning Board) granting Matthew and Roxanne Melchiori (the Melchioris or Appellees) certain relief from the Coastal and Freshwater Wetlands Overlay District and the Coastal Resources Overlay District, as well as variances from certain dimensional regulations set forth in the Code of Ordinances of the Town of Narragansett (the Zoning Ordinance).

Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, the Zoning Board's decision is affirmed.

I

Facts and Travel

The Melchioris and Grzebians are abutting property owners in the Town of Narragansett (Town). The Melchioris' property is designated as Lot 68 on Assessor's Plat W and is known as 14 Gull Road (the Property); the Grzebians' property is designated as Lot 70 on Assessor's Plat W, known as 16 Gull Road, and is situated to the north of the Melchioris' Property. Point Judith Pond abuts both properties to the west. Both properties are located in an R-40 zoning district, which requires a minimum lot size of 40, 000 square feet. The Melchioris' Property measures 30, 310 square feet and contains a single-family residence.

Because of its proximity to Point Judith Pond, the Property is subject to the Coastal and Freshwater Wetlands Overlay District and the Coastal Resources Overlay District, as codified in §§ 4.3 and 4.4 of the Zoning Ordinance, respectively. The Zoning Ordinance limits the uses permitted in those overlay districts and requires property owners to maintain setbacks between the edge of the water and any construction on the property. Specifically, § 4.3(1) defines the Coastal and Freshwater Wetlands Overlay District as all land within 150 feet of the biological edge of the wetlands; § 4.4(a) defines the Coastal Resources Overlay District as areas contiguous to shoreline features extending inland for 200 feet. Construction that cannot satisfy these requirements is only permitted with both a special use permit and a variance.

In 2000, the Melchioris sought to construct a 24 x 28 foot detached two-story garage with an 8 x 18 foot second-floor deck. The Melchioris were required to obtain special use permits and variances for the proposed garage and deck in accordance with the restrictions imposed by being within the Coastal and Freshwater Wetlands Overlay District and the Coastal Resources Overlay District. On August 17, 2000, the Zoning Board approved the Melchioris' requests for special use permits and variances for the construction of the garage measuring 24 x 28 feet and lying twenty feet from the side Property line to the south, but limited the use of the second floor of the garage to storage.

In October 2011, the Melchioris sought to convert the second floor of the garage from storage to a pool changing area[1] and recreation room with a computer/office area. They also wished to construct exterior stairs leading from the ground-level deck to the deck of the second floor of the garage. Accordingly, they applied to the Zoning Board to lift the use condition that had been imposed in 2000 and also requested two variances and special use permits. Specifically, the Melchioris sought an eighty-five foot variance and special use permit from the Coastal and Freshwater Wetlands Overlay District, Zoning Ordinance § 4.3, and a 135-foot variance and special use permit from the Coastal Resources Overlay District, Zoning Ordinance § 4.4. After their application was filed, however, the Melchioris learned that the garage that had been approved by the Zoning Board in 2000 had been constructed nineteen feet from the southern side yard Property line rather than the required twenty foot minimum side setback, see Zoning Ordinance § 6.4, and that the existing garage measured 24.3 feet x 30.3 feet rather than 24 x 28 feet.[2]

The Melchioris' application, including information and supplemental documentation pertaining to the larger-than-approved garage and its encroachment on the side yard setback, was sent to the Narragansett Planning Board (Planning Board) for preliminary review on December 6, 2011. In a written memorandum dated March 27, 2012, the Planning Board raised for the first time that the Property's lot coverage appeared to exceed the 15% lot coverage maximum for lots in an R-40 zone by 3%.[3] See Planning Board Recommendation at 2, Mar. 27, 2012. As a result of this discovery, and in addition to the relief specifically requested by the Melchioris in their original application, the Planning Board recommended that the Zoning Board approve an 895 square-foot lot coverage variance. Id. at 3.

On March 14, 2012, the Melchioris submitted an amended application to the Zoning Board dated March 12, 2012, requesting a one foot left side yard dimensional variance to account for the one foot encroachment as built, in addition to the previously requested relief. On May 17, 2012, the Zoning Board held a public hearing on the Melchioris' application. Matthew Melchiori (Melchiori) and Amy Sonder (Sonder), a professional land surveyor who prepared the Melchioris' site plan, testified in support of the application. Two neighbors testified in support of the application. Appellants' attorney argued in opposition to the application.

At the hearing, Melchiori discussed the reasons why he and his wife sought to remove the use condition on the garage's second-floor space. He testified that he and his wife wanted to have more space and a pool changing area so that their daughters, ages thirteen and twelve, would not track mud and grass throughout the house. Tr. 9:5-9, May 17, 2012. He also testified that he and his wife would like to utilize a portion of the second-floor garage space as a game and computer room "with some work space" because his wife, a certified public accountant, would occasionally bring work home and work at the kitchen table. Tr. 9:15-17; 11:7-16, May 17, 2012. Melchiori also stated that both he and his wife have separate offices away from home, that neither brings clients to their home, and that they deduct no home office expenses on their tax returns. Tr. 11:1-12:3, May 17, 2012.

Melchiori also explained the reason for seeking a one foot side yard variance. He stated that when the garage was constructed, the hole for the foundation was wet due to the distance below grade. A contractor himself, Melchiori testified that he believed that the concrete subcontractor had trouble "getting things exactly where it needed to be." Tr. 13:20-25, May 17, 2012. In response to a question from a Zoning Board member as to why the size of the garage was built as twenty-four feet by thirty feet, as opposed to the approved twenty-four feet by twenty-eight feet, Melchiori conceded that his contractor, and ultimately he, chose to increase the size of the interior staircase by two feet "in order to get stuff up, in order to use [the second floor] as storage." Tr. 35:9-36:1, May 17, 2012.

Sonder was recognized by the Chairman of the Zoning Board as an expert based upon her experience and qualifications; her field of expertise, however, was never specified. Sonder discussed the site plan she prepared for the Melchioris, pointing out that everything on the plan was an existing condition with the exception of the proposed stairs, which would be placed over an existing structure, namely, the first-floor deck. Tr. 15:15-20, May 17, 2012. Sonder concluded that there would be no alteration to the ground or the site. Tr. 15:22-23, May 17, 2012. Sonder also testified that, notwithstanding the fact that it was not included on the site plan, there was currently an existing and operable septic tank with a leach field on the Property and that, in her professional opinion, a site suitability determination (SSD) would not be required because SSD's are usually required only when an applicant increases the number of bedrooms on a site or does fifty percent more construction to the existing structure. Tr. 17:13-19:1-16; 22:8-18, May 17, 2012. Since the Melchioris were doing neither, Sonder stated that an SSD was unnecessary.[4]

Sonder next testified that she was familiar with the Coastal and Freshwater Wetlands Overlay District and the Coastal Resources Overlay District in the Town. With regard to the Zoning Ordinance's requirements for building within these districts, Sonder testified that in the course of preparing the site map and viewing the Property, she did not observe any conditions that affected the coastal feature of the wetlands. Tr. 21:4-15, May 17, 2012. She noted that unlike other site plans she has worked on where she was asked to opine if a proposed structure would affect coastal features and wetlands, here she was able to observe that the garage that has been in existence for a number of years has had no impact on coastal features of the wetlands. Tr. 21:22-22:1-5, May 17, 2012.

With regard to the Planning Board's recommendation that an 895 square-foot lot coverage variance was required, Sonder testified that such a variance was unnecessary. Tr. 26:20-22, May 17, 2012. In reaching that conclusion, Sonder relied on the substandard size of the Melchioris' lot, believing the lot coverage measurement should be governed by the substandard table which permits landowners to have a maximum of 20% lot coverage.[5] Tr. 27:1-3, May 17, 2012. In the course of a discussion amongst the Zoning Board members over whether the 15% or 20% maximum lot coverage applied to the Property, Chairman Donald L. Goodrich asked the Melchioris' attorney, "Would you be unhappy if we gave it [the lot coverage variance] to you?" Tr. 31:15-16, May 17, 2012. The Melchioris' attorney responded, "No." Tr. 31:17, May 17, 2012.

Appellants submitted a written objection to the Zoning Board. See Grzebian letter, March 12, 2012. Appellants' counsel also argued against the Melchioris' application. First, he argued that an SSD was needed as no septic system was shown on the submitted site plan. Tr. 41:1-4, May 17, 2012. Next, he maintained that the Melchioris could not meet the burden of proof for a dimensional variance or special use permit because of the closer proximity of the garage to the side lot line. Tr. 41:5-15, May 17, 2012. He also relied upon a different section of the Zoning Ordinance, § 4.5, [6] in arguing that the 15% maximum lot coverage applies to the Property. Tr. 41:20-42:8, May 17, 2012. Finally, he asserted that the change of use of the second floor of the garage to a computer/office area would constitute a "home occupation" in violation of the Zoning Ordinance which limits home occupation to the main dwelling. Tr. 42:9-18, May 17, 2012.

On May 31, 2012, the Zoning Board unanimously approved a special use permit and variance under § 4.3, a special use permit and variance under § 4.4, a one foot left side yard setback variance, and a 3% lot coverage variance. That decision was put into writing and filed on August 31, 2012 (Decision). In its Decision, the Zoning Board accepted Sonder's testimony that there was no evidence of detrimental environmental effects on the coastal or wetland features from the existing garage and concluded that granting the requested relief (1) would not be contrary to the public interest; (2) would further substantial justice; (3) would be consistent with the purposes and objectives of the Zoning Ordinance; (4) was necessary for the full enjoyment of the property; (5) resulted from physical conditions peculiar to the subject land; and (6) that any hardship on the part of the Melchioris did not result from any of their acts. Decision at 5.

The Grzebians timely appealed to this Court on September 18, 2012.

II

Standard of Review

The Superior Court's review of a zoning board decision is governed by § 45-24-69(d), which provides:

"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have ...

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