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Donegal Properties, LLC v. Zoning Board of Review of Town of Middletown

Superior Court of Rhode Island

October 6, 2015

DONEGAL PROPERTIES, LLC. Plaintiff/Appellant,
v.
ZONING BOARD OF REVIEW OF THE TOWN OF MIDDLETOWN, THOMAS D. SILVEIRA, LUCY LEVADA, PETER VAN STEEDEN, STEVEN MACGILLIVRAY and THOMAS NEWMAN, in their capacities as members of the Zoning Board of Review of the Town of Middletown and LEON AMARANT a/k/a LEONIDAS AMARANT and DESPINA AMARANT Defendants/Appellees.

Newport County Superior Court

ATTORNEYS:

For Plaintiff: Vernon L. Gorton, Esq.

For Defendant: Christopher J. Behan, Esq. J. Russell Jackson, Esq.

DECISION

STONE, J.

Before the Court is an appeal from a decision of the Zoning Board of Review of the Town of Middletown (the Board), granting a special use permit to Leon and Despina Amarant (collectively, Defendants or Amarants) to construct a two-family dwelling on their R-10 zoned lot in Middletown, R.I.[1] The appellant, Donegal Properties, LLC (Donegal or Plaintiff), is seeking to reverse the Board's decision. Jurisdiction in this Court is pursuant to G.L. 1956 § 45-24-69. For the reasoning set forth below, this Court affirms the decision of the Board.

I

Facts and Travel

The Amarants own property located at 25 and 39 Crescent Road, Middletown, Rhode Island (the Property), which is represented as Lot 32 on Tax Assessor's Plat 116NW. (Zoning Board of Review of the Town of Middletown Decision at 1, June 23, 2010 (Decision).) The Property is situated in an R-10 zoned district. See Middletown Zoning Ordinance (Ordinance) Article 6, § 602. Pursuant to § 602 of the Ordinance, property located in an R-10 zoned district may include a two-family dwelling only upon the issuance of a special use permit.[2]

To enable the construction of a two-family dwelling on the Property, the Amarants applied for a special use permit in accordance with §§ 602 and 902 of the Ordinance. (Zoning Board Hr'g Tr. (Tr.) 3:1–4.) In 2006, a previous owner of the Property, Hilda Erfe (Erfe), had applied for similar relief from the Board. See Defs.' Resp. Mem., Ex. A, Town of Middletown Zoning Board of Review Decision at 1, Aug. 23, 2006 (seeking to erect a two-family dwelling). That relief was denied by the Board, noting traffic and parking concerns. Id. at 2. On May 25, 2010, the Board held a hearing regarding the Amarants' application. See Tr. at 3. At that hearing, the Board heard testimony from six witnesses.[3]

First, Leon Amarant testified, initially providing the Board with background information regarding the Property. Id. at 7–14. When questioned about parking issues, Mr. Amarant explained to the Board that the proposed structure would entail parking for eight vehicles, facilitated by two two-car garages and additional room for up to four vehicles. Id. at 16:11–18. Also, cars would be able to turn around in the driveway, as opposed to backing out into traffic. Id. at 16:4–7. Mr. Amarant also testified that he intended to occupy at least one of the residences on the lot with his wife and daughter. Id. at 17:21–23.

Following what was to be the close of Mr. Amarant's testimony, the Board engaged in a lengthy colloquy with the town solicitor and counsel for the Amarants and the primary objector, Donegal. See generally id. at 30–39. During that exchange, the town solicitor-over the objection of the Amarants' counsel-advised the Board that to proceed further, it should make a determination as to whether there had been changed circumstances or if the application was substantially different. Id. at 33:20–34:2. This determination was to be in addition to the passage of time conditions for successive applications set forth in Article 2, § 204 of the Ordinance. Tr. at 31:21–32:17.

Immediately thereafter, counsel for the Amarants questioned Mr. Amarant regarding the differences between the 2006 application and the application at bar. See id. at 40–44. Mr. Amarant noted that in the 2006 decision, "[t]he Board was concerned that [Erfe] had not shown that adequate off street parking had been provided, " and he continued to contrast that with the eight parking spaces made available in his plan as opposed to her four. Id. at 41:5–21 (quoting Board decision at 2, Aug. 23, 2006); see also id. at 43:14–18 (observing the absence of garages in the earlier proposal). Additionally, reference was made to the physical differences between the two proposed structures, with the present plan encompassing one large building and the prior plan roughly showing two buildings attached at the corner. Id. at 42:4–15.[4] Lastly, Mr. Amarant compared Erfe's utilization of the property, which included short-term and seasonal rentals, with his own plans for long-term tenants in conjunction with owner occupation. Id. at 44:10–21.

Next, George Durgin, who was accepted as an expert in the field of real estate, testified about his familiarity with the area, with the Amarants' petition, and with the Ordinance and Comprehensive Plan. See, e.g., id. at 45–50. He opined that the Amarants' proposed use of the Property did not conflict with any of the then-existing uses in the area, either in size or in use, and that the design and location were consistent with the surrounding neighborhood. Id. at 45:14–48:21. Mr. Durgin testified that the proposed use would not alter the neighborhood's existing character and was compatible with the Ordinance and Comprehensive Plan. Id. at 50:7– 24. He also testified that granting the special use permit would not be detrimental to the surrounding area or result in hazardous conditions. Id. at 50:25–51:10.

The Board then heard from Marilyn O'Regan, the principal of Donegal, which owns property at 19 Briarwood Avenue, Middletown, Rhode Island. She testified regarding her concerns for the Amarants' proposed development. In essence, her testimony was that approval of the special use permit would cause her to vary her current use of the property, create parking concerns, and that the Amarants could change their proposed plan for occupancy in the future. Id. at 64–66. Similarly, Lee St. Laurent came before the Board to express concerns regarding the steadfastness of the Amarants' plan for continued occupancy, and, ...


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