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Girard v. The Zoning Board of Town of Barrington

Superior Court of Rhode Island

October 19, 2016

DOROTHY ANN GIRARD, MIGUEL MILICH, and JOAN MILICH, Plaintiffs/Appellants
v.
THE ZONING BOARD OF THE TOWN OF BARRINGTON, and LINDA BURTON, Defendants/Appellees

         Providence County Superior Court

          For Plaintiff: John R. Bernardo, III, Esq.

          For Defendant: Stephanie L. Federico, Esq. Michael A. Ursillo, Esq. Amy H. Goins, Esq.

          DECISION

          TAFT-CARTER, MAGISTRATE JUDGE.

         Following remand, this matter is before the Court for decision on the appeal of Plaintiffs-Dorothy Ann Girard, Miguel Milich, and Joan Milich-of the March 10, 2015 decision of the Zoning Board of the Town of Barrington, which approved the request of Defendant Linda Burton (Defendant, Applicant, or Appellee) for dimensional variances for her property at 296 Narragansett Avenue in Barrington, Rhode Island. The Zoning Board of the Town of Barrington and Applicant (Defendants or Appellees) opposed the appeal of the decision. On November 2, 2015, this Court remanded the matter to the Zoning Board of the Town of Barrington for further proceedings. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

         I

         Facts and Travel

         Applicant, the owner of the property located at 296 Narragansett Avenue in Barrington, submitted an application to the Town of Barrington for dimensional variances on January 14, 2015. The structures at 296 Narragansett Avenue, Plat 1, Lot 281 are a 736 square foot single- family residence with a 644 square foot detached garage. R. at 9, 12. The residence currently has two bedrooms, one bathroom, a living area, and a kitchen. Applicant sought to raise the garage roof to make a second-floor living space over the garage and connect said living space to the current residence.

         Applicant seeks relief from Section 185-17 of the Barrington Zoning Ordinance, which pertains to dimensional, area, and lot coverage requirements. The application requested dimensional variances for exceeding 1) front yard setback; 2) side yard setback; 3) rear yard setback; 4) lot coverage; and 5) construction within 100 feet of any water body. Id. at 17, 21. The home and garage, built in 1915, are nonconforming structures. The sole increase in the request is related to the lot coverage-from 35.8% to 37.7%. Id. at 18. This increase resulted from the building of a "breezeway" that would connect the current living space to the proposed living space to be built above the garage. Id. at 9. Relief was also sought from Section 185-22 of the Barrington Zoning Ordinance, which provides that "no building, structure or sign may be located . . . within 200 feet in the case of flowing water bodies in excess of 10 feet in width as provided by the state Freshwater Wetlands Act, " as her property "is approximately one hundred and twelve (112') feet from the nearest body of water." Id. at 21.

         In addition to her application, Defendant attached a 200-foot radius map, a list of abutters, and the proposed plan for the additions to the existing structures. Id. at 14, 16, 24. Defendant also provided a narrative with the application explaining her medical issues resulting from psoriatic arthritis that result in her inability, at times, to climb stairs or walk. Defendant's treating physician recommended that she live in a one-story house. Id. at 17-18. A diagram of the residence (existing and proposed) illustrates that as the garage is below the grade of residence, and the proposed construction above the garage will be on the same level as the current residence, the proposed structure will have all living space on one level (as now). Id. at 28-30. Defendant further attached a note from a physician, Mark C. Fisher, MD, MPH, of Massachusetts General Hospital in Boston, confirming her diagnosis. Id. at 23.

         The Zoning Board of the Town of Barrington (Zoning Board) held a public hearing on February 19, 2015 and approved the application with a vote of five to zero (5-0). At the hearing, several people testified in favor of the application. Defendant's attorney, Ms. Stephanie Federico, explained Applicant's medical issues caused by psoriatic arthritis, and she also explained the proposed construction. She stated that Applicant's condition was worsening, and climbing stairs was becoming increasingly difficult. She also noted that if the application were approved, all of the living space would (as it is now) be on one level, and she opined that the proposed addition would make the residence more similar to other residences in the area. Tr. 4:16-7:1, Feb. 19, 2015. David Boyce of the Rhode Island Conservation Commission testified on behalf of the Conservation Commission. He expressed support for the application, with the condition that the building materials are to be permitted only on the Narragansett Street side of the property. He stated that at their last meeting, the Conservation Commission unanimously approved Defendant's application. Id. at 12:22-13:3. Additionally, a neighbor of the Applicant, Janice Lee Kelly, testified that the proposed construction would not alter the general character of the neighborhood. Id. at 36:4-38:15. Specifically, she stated that the proposed addition would be "in keeping both in scale and in style with the character of both the house and the neighborhood." Id. at 37:22-24.

         The Zoning Board also heard from opponents of the application. Robert Healy, attorney for the Plaintiffs, argued that the expansion would inhibit the views and privacy of the neighbors, because the expansion is upward in a neighborhood where many of the residences do not conform to setback requirements and are thus in closer proximity than those normally found in a residential area. Id. at 24:7-35:25. Plaintiff Girard testified to her concerns about her view being obstructed and her privacy being infringed because the proposed additional living space would be adjacent to her bedroom. Id. at 45:10-48:21. Another neighbor, Sandra Wyatt, testified as to her concerns that the construction would be in close proximity to Narragansett Bay, and that it would impair the Girards' light and privacy because the proposed additional living space would be in close proximity to the Girards' residence. Id. at 38:19-45:6.

         The Zoning Board issued its decision on March 10, 2015 and incorporated the minutes of the meeting as findings of fact. Plaintiffs filed a timely appeal on March 30, 2015. The Zoning Board and Applicant filed separate objections to the appeal.

         On December 18, 2015, the Zoning Board rendered a decision that contained findings of facts and conclusions of law in accordance with the statutory provisions of § 45-24-69. This decision was recorded in the Town of Barrington land evidence records on December 21, 2015, and a copy was sent to ...


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