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Merkle v. Clark

Superior Court of Rhode Island

October 9, 2015


Kent County Superior Court

For Plaintiff: Susan A. Chiariello, Esq.

For Defendant: Peter D. Ruggiero, Esq. Stephen A. Rodio, Esq.



Before the Court is an appeal from a decision of the Zoning Board of Review of the City of Warwick (Zoning Board or Board), approving the dimensional variance application of Appellees Judith and David Clark (the Clarks or Appellees). Appellants Roberta Merkle, Norma Jean Bassett, and Katherine Gilman (Appellants) bring this appeal against the Clarks, as well as against the Zoning Board and its members, seeking to reverse the decision granting the Clarks dimensional relief. Jurisdiction in this Court is pursuant to G.L. 1956 § 45-24-69. For the reasons discussed below, this Court affirms the decision of the Zoning Board.

I Facts and Travel

This action concerns property located at 243 Promenade Avenue in the City of Warwick, Rhode Island, noted on the Assessor's Map as Plat 373, Lots 184 and 185. The property, purchased by the Clarks in 2009, consists of a large primary residence as well as a separate "carriage house"[1] containing three garage stalls and a one-bedroom, second-floor apartment inhabited by Judith Clark's mother. The Clarks' property includes the adjacent lot directly north of the lot containing the Clarks' residence, which was formerly improved with a dwelling that has since been demolished, leaving only the primary residence and carriage house. The two lots together, which are to be merged by administrative subdivision, consist of about 20, 140 square feet of land and are zoned A-15, meaning that they are to be "used for low density residential use, comprising not more than one single-family dwelling unit per lot area." Warwick Zoning Ordinances §§ 301.3, 300 Table 1.

The property is located within a section of Warwick known as "Old Buttonwoods, " a longstanding community originally established near the turn of the 20th century as a summer residence area, but now inhabited year-round. Appellants also reside within the bounds of Old Buttonwoods. Additionally present in Old Buttonwoods is the Buttonwoods Beach Association (BBA), an entity which owns the private roadways and other common areas in that location, and which opposed the Clarks' petition for zoning relief.

The Clarks brought an application for zoning relief to the Zoning Board seeking a dimensional variance from local setback requirements to facilitate construction of an addition to the main dwelling consisting of a breezeway[2] and an attached garage. See Application for Variance 3 (Feb. 5, 2015); Warwick Zoning Ordinances §§ 200 Table 2A, 602.4. The carriage house was not to be altered.

The Zoning Board heard this petition on March 10, 2015. The Clarks were represented at the hearing, where they presented testimony from three expert witnesses: Mr. Harvey Wagner (Wagner), Mr. Thomas O. Sweeney (Sweeney), and Mr. Harry Miller (Miller). Appellants, among others, opposed this request through letters[3] submitted to the Zoning Board and through the presentation of testimony at the hearing and the cross-examination of the Clarks' witnesses.

Mr. Wagner, an architect, was called first on behalf of the Clarks. He was accepted as an expert in design by the Zoning Board based upon his past appearances before the Zoning Board. Hr'g Tr. at 13-14 (Mar. 10, 2015). Wagner testified at length to the existing structural nonconformities on the primary residence and the proposed dimensions of the breezeway and garage. Id. at 14-17. Regarding the location of the garage, Wagner testified that the proposed location was the only reasonable one for an attached garage, given the layout of the land and the available space for the structure. Id. at 17, 18. Wagner also noted that the garage would not be constructed as finished living space, but instead would only have space for automobiles and storage. Id. at 18-19. Finally, Wagner offered his expert opinion that the proposed additions were consistent with the general design of the community, noting the design in general and the average lot coverage of structures were in accord with other existing structures in the neighborhood. Id. at 20-22.

In an extended colloquy, Mr. Corley of the Zoning Board questioned Wagner about the design and the possibility of reasonable alternatives to the proposed garage design. See id. at 26-31. Throughout the questioning, Wagner consistently maintained that the proposed location was the only one suitable for an attached garage and that alternative designs would be impractical or result in insufficient space for safe vehicle operation. According to his testimony, siting the garage elsewhere would require seventy to eighty feet of distance between the garage and main residence-an unreasonable option that was more than merely inconvenient, in his expert opinion. Id. at 27. Wagner explained his conclusion that maintaining the proposed siting of the garage while complying with setback requirements would result in the proposed construction obstructing the primary entrance to the residence, rendering it impossible to comply with the setback requirements. Id. at 28. Later in the hearing, Wagner was subject to cross-examination by opposing counsel and affirmed his conclusion that the proposed location was "the only location for the garage." Id. at 57-60.

The Board next heard from Mr. Sweeney as an expert in the field of real estate. Id. at 35-36. He testified to the nature of the parcel and offered his opinion that the proposed location for the garage was the only location consistent with the physical characteristics of the land. Id. at 37-39. He also noted that, in his opinion, the proposed additions were consistent with the general character of the neighborhood and that granting a variance for the proposed construction would be the least relief necessary to enable the construction. Id. at 40-42. Sweeney concluded his testimony by opining that the proposed setbacks were consistent with those already in place for the main residence, and that to deny them would constitute a hardship amounting to a restriction on a lawfully permitted use of the property and would be more than merely inconvenient for the Clarks. Id. at 42-44.

Mr. Miller was the final witness to testify on behalf of the Clarks, after being certified as an expert land surveyor. Miller testified to the average setback on neighboring properties, which he measured at 3.6 feet, contrasting this to the five foot proposed setback for the garage and breezeway additions. Id. at 46-48. He also testified to the extent of the new setback, describing how the dimensions of the breezeway and garage required less relief from dimensional requirements than the main house to which they would be attached, and stating that such a setback would not negatively affect the roads in the area. Id. at 48-50. He also offered his opinion that the proposed construction would not impact sight lines of motorists or pedestrians traveling on the roads adjacent to 243 Promenade Avenue. Id. at 50.

Two witnesses testified on behalf of the objecting parties, Mr. Edward Pimentel (Pimentel) and Mrs. Susan Martins-Phipps (Martins-Phipps). Pimentel testified first, after being duly certified as an expert in planning. Pimentel's testimony focused on what he characterized as the nonconforming use of the property-there being two residential structures upon the lot instead of the permitted one-and offered his opinion that the addition of the garage and breezeway intensified the nonconforming use of the property. Id. at 69-74. He also opined that the denial of a variance would not constitute a hardship upon the Clarks, nor would it amount to more than a mere inconvenience for the Clarks to site the proposed garage elsewhere. Id. at 74-75. Pimentel further explained that, in his expert opinion, any hardship that could be considered to exist was the result of action by the Clarks. Id. at 75. Furthermore, he stated, in his expert opinion, the granting of any dimensional relief enabling the construction of the proposed attached garage would not amount to the least relief necessary to alleviate any hardship. Id.

Mrs. Martins-Phipps testified in her own behalf and as President of the BBA. Id. at 81-82. She testified to the normal role of the BBA in facilitating dialogue between neighbors in the event of home addition plans and stated that this was the first petition for zoning relief that was opposed by the BBA. Id. at 83-85. To her knowledge, she stated, other homes in Old Buttonwoods were generally about 2000 square feet, with no home over 4100 square feet, while her understanding was that the addition to the Clarks' home would result in about 6000 square feet of space. Id. at 85-86. Martins-Phipps also stated that no other home in the area had an attached garage, and that most properties not conforming to setback requirements did so because of open porches. Id. at 86. Furthermore, Martins-Phipps asserted from the stand that no other home in the neighborhood had a garage facing inward towards the center of a lot, as the Clarks' proposed garage would, with all other garages facing outwards toward lot boundaries and/or roadways. Id. at 86-87. Martins-Phipps concluded her testimony by describing the character of the neighborhood at length and opining that, based on the features and design of the addition, she did not believe the proposed construction was in keeping with that character. Id. at 87-89, 92-94, 95.

The Zoning Board unanimously voted to approve the petition for relief on that date and filed a formal decision on April 2, 2015. Id. at ...

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