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Carria v. Schilling

Superior Court of Rhode Island

November 10, 2016

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.

         Newport County Superior Court

          For Plaintiff: Mark B. Bardorf, Esq. Michael J. Richards, Esq.

          For Defendant: Christopher J. Behan, Esq. Turner C. Scott, Esq.


          STONE, J.

         Before 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.


         Facts and Travel

         Schilling 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, residential.

         On February 25, 2015, seeking to renovate the property, Schilling filed an application with the Board for a special-use permit and a dimensional variance.[1] 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.

         On 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.[2] 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.

         At the hearing, Schilling testified[3] 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.

         Additionally, 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.

         Mr. 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[4] from certain angles if the plans were approved. Id. at 32:14-17.

         Finally, 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.

         At the 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) zoning district.
"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 1.)

         Additionally, 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 ...

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