JAMES J. CARRIA and DENISE M. CARRIA, Plaintiffs/Appellants,
CECILIA M. SCHILLING and REBECCA McSWEENEY, HEIDI BLANK, ROBERT BUZARD, DONALD BOUCHER, and MICHAEL J. MARTIN II, in their capacities as Members of the Zoning Board of Review of the City of Newport Defendants/Appellees.
County Superior Court
Plaintiff: Mark B. Bardorf, Esq. Michael J. Richards, Esq.
Defendant: Christopher J. Behan, Esq. Turner C. Scott, Esq.
this Court is an appeal from a decision of the Zoning Board
of Review of the City of Newport (the Board) which granted
Cecilia M. Schilling (Schilling or Appellee) a dimensional
variance and a special-use permit for the construction of an
addition to her home. Abutters James J. Carria and Denise M.
Carria (collectively, the Carrias or Appellants) seek
reversal of the Board's decision. Jurisdiction is
pursuant to G.L. 1956 § 45-24-69. For the reasoning set
forth herein, this Court remands this matter to the Board for
further proceedings consistent with this opinion.
owns the property at 4 Ellery Road, Newport, Rhode Island,
which is identified as Lot 118 on Tax Assessor's Plat 20
(the Property). Currently, there is a two-story,
single-family home on the Property. It contains three
bedrooms and one and one-half bathrooms. The Property is
nonconforming by dimension-as provided for in §
17.08.010 of the City of Newport's Code of Ordinances
(the Zoning Ordinance) and § 45-24-31-in four regards:
(1) the lot size is only 4160 square feet where 10, 000
square feet is required; (2) frontage is 45', where
80' is required; (3) the east side yard setback is
6', where 10' is required; and (4) the existing lot
coverage is 36% where 20% is the maximum allowed. Pursuant to
the Zoning Ordinance, Schilling's lot is zoned as R-10,
February 25, 2015, seeking to renovate the property,
Schilling filed an application with the Board for a
special-use permit and a dimensional variance. Schilling sought
to increase the current size of her home by building a
two-story addition. Specifically, the addition would provide
space for the inclusion of another bathroom and a bedroom on
the second floor. Schilling's stated motivation was to
allow for her fiancé and his son to move into the home
with her and her two children once they were married. While
she was able to live in the home with her two children rather
comfortably, she maintained that the anticipated increase in
the size of the family-by sixty-seven percent, to a family of
five-rendered the available living space inadequate. Once the
addition was complete, she explained, the home would contain
four bedrooms, and two and one-half bathrooms.
March 23, 2015, the Board held a hearing on Schilling's
application. Present for the Board were Chairperson Rebecca
McSweeney, Heidi Blank, Robert Buzard, Donald Boucher and
Michael J. Martin II. During the hearing, the Board heard
testimony from Ms. Schilling, James Corcoran-Schilling's
fiancé-Mr. Carria-the abutter contesting
Schilling's application-and Attorney Mark B.
Bardorf-counsel for the Carrias. The Board also considered
the submitted application, plans, and exhibits presented by
both Schilling and the Carrias.
hearing, Schilling testified that she wanted to bring the
house up to modern living standards and to provide adequate
living space in the home for herself, her two children, her
fiancé, and his son-the latter two of whom would be
moving in once Schilling and Corcoran were married. (Tr.
22:13-23:23, Mar. 23, 2015) In support, Schilling noted that,
as presently constituted, she shared one full bathroom with
her two sons, and, if she was not granted relief, all five
members of the family would have to share that same bathroom.
Id. at 5:9-16. She believed that allotment did not
afford a practical living arrangement for her family.
Schilling noted that her two sons each had their own bedroom
and, without more space, one of them would have to share a
room with Corcoran's young son. Id. at 5:17-19.
Complicating matters, she continued, was the fact that the
two bedrooms used by the boys were already "very
small" and therefore ill-suited to accommodate another
individual. Id. at 5:19-23. Another issue with the
bedrooms, she noted, was that they offered minimal storage
space. Id. at 5:23-24. Accordingly, the two by five
foot closet available in the "so-called master bedroom,
" in her opinion, would be insufficient for Schilling
and Corcoran's storage needs. Id. at 5:24-6:4.
Carria-Mr. and Mrs. Carria own the property located at 2
Ellery Road, Newport, Rhode Island, which directly abuts
Schilling's property to the west-testified in opposition
to Schilling's application. At the hearing, Mr. Carria
testified that he had viewed Schilling's plans and feared
the addition would affect the cross-breeze and sunlight his
home received. Id. at 30:22-24. Mr. Carria opined
that Schilling's home would become a "hulking
massive structure" and would "affect our ability to
enjoy our house." Id. at 30:24-31:2.
Additionally, he testified that his view of the street would
be limited from certain angles if the plans were
approved. Id. at 32:14-17.
Attorney Bardorf provided closing remarks on behalf of his
clients, the Carrias. Attorney Bardorf identified what he
perceived to be inaccuracies in the site plans, as well as
the absence of evidence that supports granting
Schilling's application. Id. at 35:1-36:5.
conclusion of the hearing, the Board voted unanimously to
approve Schilling's application by a vote of five to
zero. Id. at 44:14-15. The Board issued a written
decision (the Decision) that was recorded in the Land
Evidence Records on May 19, 2015 at Book 2515, Page 75. The
Decision states that after reviewing the application and
plans, and hearing the testimony of Ms. Schilling and Mr.
Carria, the Board adopted the following findings of fact:
"1. The property is located in a residential (R-10)
"2. The lot is a non-conforming lot of record containing
4, 160 sq. ft. of land.
"3. The property contains a single-family dwelling. The
existing structure is non-conforming to the front and side
yard setback requirements as well as lot coverage.
"4. Petitioner seeks permission to add a 1st floor entry
hall, a 2nd floor children's bedroom, a master bathroom,
and a farmer's porch to the front of the existing
dimensionally nonconforming structure. Ms. Schilling
testified the additions were the minimum required to
accommodate a growing family.
"5. Mr. Carria opposed the petition on the basis that
the proposal would limit the views from his property. However
the Board found through photographs presented by the
petitioner, that the view from the neighboring property would
not be significantly altered by the addition." (R. at
the Board stated:
"[T]he request is in harmony with the surrounding area;
the proposal will not have an adverse impact on abutting
properties; the variances sought were the minimum variances
that will make possible the reasonable use of the land,
building or structure; and the proposal was in ...