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Solas v. Zoning Board of Review of Town of West Warwick

Superior Court of Rhode Island

October 13, 2015

GREGORY P. SOLAS and LYNDA A. SOLAS Plaintiffs/Appellants
v.
ZONING BOARD OF REVIEW OF THE TOWN OF WEST WARWICK, and FRANK GIORGIO, III, PATRICIA MORGAN, ROBERT MESSIER, MICHAEL MCPHILLIPS, and RENE COUTU, in their capacities as members of the Zoning Board of Review of the Town of West Warwick Defendants/Appellees

Kent County Superior Court

For Plaintiff: Susan A. Chiariello, Esq. Mary B. Shekarchi, Esq.

For Defendant: Timothy A. Williamson, Esq.

DECISION

STERN, J.

Before this Court is an appeal from an October 30, 2013 decision (Decision) by the Zoning Board of Review of the Town of West Warwick (Zoning Board[1]) denying Gregory P. and Lynda A. Solas (Appellants) a special use permit to convert their single-family home into a two-family home. Appellants contend that they have satisfied the criteria for a special use permit. Alternatively, the Zoning Board contends that its findings were supported by sufficient evidence. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the following reasons, this Court affirms the Decision of the Zoning Board.

I

Facts and Travel

In June 2012, Appellants purchased 9 Smith Street in the Town of West Warwick, Rhode Island.[2] (Hr'g Tr. at 22:5-7.) The property was zoned R-8, which required a special use permit to convert a single-family residence into a multi-family residence. Despite its zoning restriction, the home had the appearance of a two-family residence. Id. at 4:14-21. Prior to purchasing the property, Appellants inspected it and noticed that there were "two kitchens, two, essentially, units." Id. at 4:18-19. The seller's agent informed them that the second unit "was an in-law apartment that could easily be converted into a two-family home." Id. at 4:18-19. Additionally, the home had two driveways and two separate entrances. Id. at 15:9-15. Appellants did not secure a lender for the purchase price and therefore did not conduct an appraisal of the property. Id. at 4:19-21. Appellants also were not represented by a realtor. Id.

Subsequently, after purchasing the property, Appellants filed an "Application for Variance or Special Use Permit" with the Zoning Board seeking relief from Section 5 of the West Warwick Zoning Ordinance (Zoning Ordinance). See Application for Variance or Special Use Permit at 2. On October 30, 2013, an advertised public hearing was held. At this hearing, Appellants were represented by attorney Mary B. Shekarchi and presented testimony from Joseph Lombardo and Robert Boyer.

Mr. Lombardo testified as a land use and planning expert. (Hr'g Tr. at 7:1-4.) Prior to his testimony, he drafted a report[3] that analyzed West Warwick's Special Use Permit Provision[4] (Special Use Provision) and investigated the fitness of Appellants' property for a special use permit. Id. at 7:22-25. At the hearing, Mr. Lombardo testified to the findings of this report as it pertained to the enumerated criteria of the Special Use Provision. See supra, n.3.

In addressing each subsection of the Special Use Provision, Mr. Lombardo testified that the proposal would be compatible with neighboring uses because the neighborhood was "a medium density residential area" that comprised a "mixture" of residential types. Id. at 9:4-6. He opined that roughly twenty-five percent of the neighborhood consisted of multi-family homes. Id. at 9:11-12. Further, he asserted that the proposal would not create a nuisance because the property was well maintained, fenced in, and had two separate driveways for off-street parking. Id. at 9:18-23. Mr. Lombardo also testified that the proposal would not hinder any future development of the town; rather, it would "likely enhance the values in that neighborhood." Id. at 10:10-11. He further stated that the proposal conformed to all applicable sections of the R-8 zoning provision that pertained to multi-family homes. [5] Id. at 10:20-25.

After concluding his testimony regarding the criteria of the Special Use Provision, Mr. Lombardo testified that the proposal would advance several land use goals and policies. He explained that one such goal is to provide a land use pattern that is capable of meeting present and future needs of the community. Mr. Lombardo noted that "two-family and three-family homes meet a housing need for people who are not in the housing market to purchase a home, who want to rent a home. But it's in a nice, stable neighborhood where there is a mix of single and multi-family homes." Id. at 11:18-12:3.

Mr. Lombardo concluded his testimony by asserting that the proposal would advance several "purposes and intents" of the Town of West Warwick's comprehensive plan. He explained that "[t]here's nothing out of character here. The intensity is within-well within the R-8 zoning district." Id. at 12:17-19. In addition, "[w]hen you look at [the home], it has all the attributes of a two-family home, with two driveways[, ] and with some small improvements . . . it can become a very functioning two family home." Id. at 12:21-13:1.

After Mr. Lombardo concluded his testimony, Ms. Morgan-a member of the Zoning Board-stated that she was very familiar with the area where the house is located. Id. at 13:21-22. She noted that there is only one multi-family home on that street, which was built in the early 1800s, and except for this house, the area consists of primarily single-family residences. Id. at 13:22-14:1. From her personal knowledge of the neighborhood, Ms. Morgan questioned Mr. Lombardo regarding how he concluded that multi-family homes constituted twenty-five percent of the neighborhood. Mr. Lombardo explained that his analysis and observations included the area "two or three streets over" and was not limited to the immediate area surrounding the home. Id. at 14:7-17.

Following Mr. Lombardo, Mr. Boyer testified as an expert witness in the field of surveying. Id. at 17:4-20. After stating that the proposal meets all the R-8 zoning regulations and setback requirements, and noting that the property has two driveways with an area sufficient for additional parking, Mr. Boyer concluded that "it's a pretty sound piece of property." Id. at 19:24-25. Mr. Boyer also explained that the interiors of both apartments were completely finished and both were occupied. Id. at 20:2-8. Attorney Shekarchi informed the Zoning Board that the Appellants' son, along with his girlfriend and a co-worker, reside in the in-law apartment. Id. at 20:24-21:1.

Fred Presley, town manager and planner for West Warwick, also testified. He explained that the previous owner had originally been approved by the Zoning Board to build an "addition" to the home. Id. at 25:3-8. The previous owner then, in violation of the granted variance, installed a full kitchen in the addition and converted it into an illegal in-law apartment. Id. at 21:15-17. Mr. Presley clarified that "[w]hat [the proposal] was approved for was an addition with a bar and a sink." Id. at 25:3-4. He noted that during the building inspector's final review, the addition conformed to the R-8 zoning restrictions and the granted variance.[6] Id. at 25:6-8. It was after the final inspection that the previous owner reconstructed the addition into an in-law apartment. Id. at 25:9-10. Mr. Presley concluded that "[i]t was clear that the buyer was not informed correctly." Id. at 25:19-20.

As the Zoning Board discussed whether to grant or deny the application, Ms. Morgan adamantly did not want to condone the illegality of the in-law apartment. She continuously asserted that "the whole neighborhood is single-family homes, " and "that neighborhood is really single family-homes; it is. It's not duplexes." Id. at 28:5-15, 42, 43. She stated her desire to follow precedent, which traditionally does not permit in-law conversions into duplexes. Id. at 53:13-25. She explained:

"[W]e have consistently said that we do not want in-law apartments to be turned into two retail apartments. We've been really consistent on that, and there's a reason behind that. And just because this was done illegally and because they were duped into buying this, doesn't mean that-that we should change our posture on this . . . ." Id. at 42:13-20.

Alternatively, the Chairman explained that this situation was distinguishable from other petitions for "in-law" conversions because the addition (or in-law apartment) was already added to the house and would remain there regardless of the Zoning Board's ruling. He expounded:

"But it's still already there. You can't-you can't change the appearance of the property without knocking the building down. You can't change-even if it remains as an in-law illegally and somebody lives on the other side, you're not going to change the traffic flow, you're not going to change the density. You're not going to change any of that." Id. at 43:15-22, 52-53.

Ms. Morgan rebutted that an approval of the proposal would potentially invite more people to live on the property. Id. at 44:8-10. Zoning Board member Coutu agreed, pointing out that the number of bedrooms could hypothetically increase because the unfinished basement could be renovated to provide for additional bedrooms. Id. at 45-47.

With respect to whether the conversion was compatible with neighboring uses, Ms. Morgan explained:

"I know the area very well, and it is single-family homes, except for one structure, and that is the street behind the street that it's on and the street in front. They're single-family homes in there, so I don't think it is compatible. Like I said, there's one large building that's been there since the 1800's that's multifamily. Other than that, it's single family homes." Id. at 58:4-11.

Ms. Morgan also questioned whether the proposal would create a nuisance in the neighborhood due to the increased volume in cars. She further explained that "yes, we could put parking on the side, but you'd be tempted-I'm afraid that people would be tempted to put them in ...


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