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Freij v. Kraig

Superior Court of Rhode Island

January 26, 2016

MOHAMED J. FREIJ
v.
TOM KRAIG, IN HIS CAPACITY AS MEMBER OF THE TOWN OF BARRINGTON ZONING BOARD; PETER DENNEHY, IN HIS CAPACITY AS MEMBER OF THE TOWN OF BARRINGTON ZONING BOARD;: ELIZABETH HENDERSON, IN HER CAPACITY AS MEMBER OF THE TOWN OF BARRINGTON ZONING BOARD; LADD MEYER, IN HIS CAPACITY AS MEMBER OF THE TOWN OF BARRINGTON ZONING: BOARD; AND DAVID RIZZOLO, IN HIS CAPACITY AS MEMBER OF THE TOWN OF BARRINGTON ZONING BOARD

Providence County Superior Court

For Plaintiff: Paul Ryan, Esq.

For Defendant: Michael A. Ursillo, Esq.

DECISION

LICHT, J.

Mohamed J. Freij (Mr. Freij or Appellant) applied to the Town of Barrington (Town) Zoning Board of Review (Board) for a special use permit to unmerge a lot, which had previously been merged. The Board denied Mr. Freij's application on the grounds that the unmerged lots would not be of a size generally in conformance with other lots in the immediate vicinity, in violation of § 185-29 of the Town of Barrington's Zoning Ordinance (the Zoning Ordinance). Mr. Freij appeals that decision seeking a reversal of the Board's decision and declaratory relief under the Uniform Declaratory Judgments Act. Jurisdiction is pursuant to G.L. 1956 §§ 42-35-15 and 9-30-1, et seq.

I

Facts and Travel

In 2013, Mr. Freij bought the property located at 144 Roffee Street in Barrington, Rhode Island (the Property). The Property contains approximately 7400 square feet of land. Originally, the Property consisted of two separate lots, each of approximately 3700 square feet of land, with a common rear border. In 1986, the lots merged by operation of law when the Town amended its Zoning Ordinance and adopted a merger provision, § 185-26.[1] The current merged Property contains a single-family residence and fronts on two streets, Whipple Avenue and Roffee Street. Because the Property fronts on two different streets and is not a corner lot, the Property is designated as a "through lot" under the Zoning Ordinance.

On or about May 30, 2013, Mr. Freij applied to the Board for a special use permit to unmerge the Property (2013 Application) and thereby create two lots of approximately 3700 square feet each. Appellant's Ex. 1, at 1. Mr. Freij proposed building a new single-family residence on the lot fronting Whipple Avenue and retaining the original single-family residence on the lot fronting Roffee Street. Id. The Board denied the 2013 Application in a four-to-one vote. Id. at 4. In making its decision, the Board noted that the proposed Whipple Avenue lot house, as well as the existing Roffee Street house, met all the variance and setback requirements of the Zoning Ordinance. Id. However, the Board also determined that both of the proposed lots were located in the R-10 zoning district, which requires a minimum lot area of 10, 000 square feet. Id. at 3. Thus, the Board found that unmerging the lots would create two substandard lots.

Further, the Board concluded that the unmerged lots did not meet the standard under § 185-29 of the Zoning Ordinance which requires that unmerged substandard lots are "generally in conformance with size of developed lots in the immediate vicinity." Id. at 4. The minutes of the appeal hearing reflect that only fourteen percent of the properties in the area comply with the R-10 requirements. Id. at 3. However, the average lot size of properties in the area was 7400 square feet. Id. Therefore, the Board found that the proposed unmerged lots of 3700 square feet did not conform to the size of developed lots in the area. Id. Additionally, the Board did not feel that the unmerged lots were in accordance with the Comprehensive Plan because Mr. Freij's proposal "would not advance the objective of creating more affordable housing in accordance with [Rhode Island] law." Id. at 4. Lastly, the Board found that unmerging the Property increased the density of the neighborhood and did not satisfy the requirements of § 185-73[2] of the Zoning Ordinance. Id.

On December 19, 2014, Freij once again filed an application for a special use permit seeking to unmerge the Property and create two 3700 square feet lots (2014 Application).[3] On February 19, 2015, the Board held a public hearing on Mr. Freij's 2014 Application. During the hearing, counsel for Mr. Freij argued that his 2014 Application differed from his 2013 Application. Appellant's Ex. 2, at 3. He contended that Mr. Freij intended to deed restrict the existing single-family residence on the proposed Roffee Street lot as affordable housing, which would contribute to Barrington's affordable housing goals. Id. Further, counsel for Mr. Freij contended that the original merger created a through lot and was void because the subdivision regulations prohibit the creation of through lots. Id.

The Board denied Mr. Freij's 2014 Application. The Board found that Mr. Freij had satisfied the general standards necessary to receive a special use permit under § 185-73 of the Zoning Ordinance. Id. However, the Board ultimately determined that "the standard in § 185-29 ha[d] not been met in that the lots, as unmerged, [would] not be of a size generally in conformance with the size of developed lots in the immediate vicinity." Id. at 4. Mr. Freij now appeals to this Court, requesting reversal of the Board's decision. Mr. Freij also seeks a declaration under the Uniform Declaratory Judgments Act that the original 1986 merger was void because it created a through lot.

II

Standard of Review

The Superior Court's review of a zoning board's decision is governed by chapter 24 of title 45 of the Rhode Island General Laws. See Lischio v. Zoning Bd. of Review of N.Kingstown, 818 A.2d ...


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