County Superior Court
Plaintiff: Susan A. Chiariello, Esq.
Defendant: Peter D. Ruggiero, Esq.
matter is before the Court on appeal from a final decision of
the Warwick Zoning Board of Review (Board or Zoning Board),
which on December 8, 2015 denied an application for
dimensional variances to allow James McGowan (Applicant or
Mr. McGowan) to build a single-family home on a lot in the
Conimicut section of the City. Mr. McGowan intended to build
a 3 bedroom single-family dwelling on a vacant undersized
non-conforming lot. Jurisdiction is pursuant to G.L. 1956
filed an application with the Warwick Zoning Board on
November 2, 2015. Applicant has owned the subject property
located on Spadina Avenue and designated by the City of
Warwick as Assessor's Plat 334, Lot 229 since 2003.
See Zoning Bd. Decision. The property is in a Zoning
District designated as Residential A-40, which requires that
a residence may be built only on properties with at least 40,
000 sq. ft. of land. The property owned by Applicant measures
only 4050 sq. ft. The property is also non-conforming in
regard to width, square footage, front yard setback, side
yard setback, and rear yard setback. The subject property,
located on Spadina Avenue in Warwick, Rhode Island, is
located in a VE-14 flood zone. In order to build the home, it
would be necessary for him to obtain dimensional relief from
the front and rear yard setbacks, the side yard setbacks, and
the width and square footage requirements contained in the
Warwick Zoning Ordinances. The Applicant has received
Individual Sewage Disposal System (ISDS) approval for an
above-ground septic system, and he has received preliminary
approval of the Coastal Resources Management Council (CRMC or
December 8, 2015, the Zoning Board held a duly noticed public
hearing. Mr. Richard Crenca, Planner for the City of Warwick,
testified against the proposed construction. Specifically,
Mr. Crenca testified that "the Warwick Comprehensive
Plan strongly opposes the construction on undersized,
nonconforming lots" and "calls for the City to
discourage the creation and/or development of undersized and
nonconforming lots." Hr'g Tr. 6-7. Mr. Crenca
further testified that "the City is in the process of
foreclosing on the right of redemption of a number of lots
directly across from Spadina [Avenue] . . . in order to
preserve the property as open space and prevent the
development of this sensitive environmental property."
Id. at 7-8. According to Mr. Crenca, the view of the
Planning Board was that "approval of this petition would
result in adverse impacts on the environment and is in direct
conflict with the goals and objectives of the City
Comprehensive Plan, " and therefore, his Department
"would recommend denial of this petition."
Id. at 8-9.
Richard Johnston represented the Applicant at the hearing of
the Zoning Board. He described the subject property as
"a single-family, nonconforming lot of record."
Id. at 12. He further elaborated that the Applicant
"did receive an ISDS approval" and "a
preliminary determination from Coastal for this plan, [in]
which they acknowledged that it will be approved subject to a
full Coastal application." Id. Attorney
Johnston confirmed that the Applicant sought relief from
Warwick Zoning Ordinance 405.4 (A), which governs properties
with a square footage of less than 7000 and frontage less
than 50 ft. Id. at 14.
Pimentel, who has offered testimony to several zoning boards
and Rhode Island courts regarding land use and planning,
offered testimony on behalf of the Applicant. Based upon his
qualifications and experience, Mr. Pimentel was unanimously
accepted by the Board to provide expert testimony, including
opinions as to the application. Id. at
He also submitted a written report, which was submitted as
Applicant's Exhibit 4. Id. He testified that the
subject property was "similar in size" to other
nearby properties on which a dwelling was constructed, and
"it's true that the lots . . . to the east, which
borders the wetlands, are larger, for [the] most part, the
interior blocks [where the subject property is located]
probably are more reflective of a A-7000 [square footage
requirement]." Id. at 17. Mr. Pimentel
elaborated that this is relevant because the designation of
A-40, 000 "results in a lot of setback area [being
required] that probably would not be required if it was, once
again, zoned 7, 000 instead of the 40[000 square feet]."
Id. at 17-18. According to Mr. Pimentel, the
"side yard setbacks extinguish the building envelope
because we don't have the requisite 60 feet [30 feet on
each side]. And then if you apply the front and rear, we end
up with only ten feet." Id. at 18. He told the
Board that compliance with the Warwick Zoning Ordinances
would be "impossible. You can't build a house
that's ten feet in depth and a house that's zero feet
in width." Id.
Pimentel further testified that the subject property is
"in a flood zone. So, we can't go with something
smaller in stature . . . If you look at the immediate homes
in the area, especially the newer ones, they have all been
reconstructed and the properties have been developed to
reflect the new building and flood zone codes."
Id. at 18-19. He testified that nearby "homes
were constructed in 1994 and 2006 . . . [that] had to address
the new codes and be out of the flood zone; and both of those
are [on lots that measure] 4, 050 square feet[.]"
Id. at 19. He explained that he "took pictures
of the homes in the proximate neighborhood . . . fairly new
construction. All meeting the larger size stature to reflect
flood zones . . . this is why we went with the
two-story." Id. Mr. Pimentel further testified
that two nearby "Lots 236 and 237, which are right on
the water . . . only 8300 [square feet] . . . [were able to
have homes] built in 1999 right on the water."
Id. at 21-22.
McGowan next testified. He explained, "to tell you the
honest truth, I don't know if I'm going to live in
this house or not. My original plans were to build this house
and to live in there with my wife . . . I bought this land a
long time ago . . . I got a lot older. This thing is 21 feet
up in the air. So, one of the things that I would have to
consider . . . is some way to access this house without
having to go up and down stairs all the time."
Id. at 32-33. Richard Corley, Vice-Chairman of the
Board, opined that was "not possible." Id.
at 33. Mr. McGowan responded, "Am I willing to go up and
down the stairs all the time . . . My wife is on the fence .
. . I'm trying to encourage her to move there."
Id. The Applicant concluded by stating that "I
may move there and I may not move there." Id.
Pimentel then addressed §§ 45-24-41(d)(1-4) and
(e)(2), the statutory provisions that govern the requirements
for the issuing of a dimensional variance. He told the Board
that "the hardship resulted from the land itself. It is
. . . a substandard lot of record. Approximately less than
one-tenth of the lot requirement." Id. at 35.
He then testified that the hardship "is not the result
of this owner and the prior owners. This lot has been a lot
of record for approximately 95 years, going on 96."
Pimentel elaborated that:
"this clearly is not to realize, primarily realize
financial gain. It's to realize reasonable use of
one's property. We believe we are seeking the least
relief necessary. The footprint area is not that large. I
presented the character of the neighborhood, what's in
character with the footprint, et cetera." Id.
concluded that if the variance "were to be denied . . .
not only does the hardship amount to more than a mere
inconvenience, in fact, we would be precluded from using the
property in any way . . . you would have denied our right to
some beneficial use to this property." Id. at
first witness to speak in opposition to the variance was Ms.
Leslie Derrig. Ms. Derrig testified that she had spoken to
Ms. Janet Friedman of the CRMC, and Ms. Friedman informed her
that she "would never have approved anything like that,
and nothing came to me." Id. at 40. She also
questioned whether the proposed construction had sufficient
elevation to meet the requirements of a flood zone.
Id. at 40-42. She testified that the area was prone
to flooding, and the proposed construction would worsen the
propensity for flooding. Id. at 43-47. She testified
that she and Ms. Friedman have been monitoring the erosion of
the area known as Spot Park since 2002, an area on which the
area residents would have gatherings during the summer
months, which is now impossible due to the erosion.
Id. at 53-54. Her narrative concerning the erosion,
as well as her photographs thereof, was admitted as
Objector's Ex. 1. Id. at 56. The testimony she
offered concerning her discussion with representatives of
CRMC was hearsay.
next witness to testify against the Application was Mr.
Thomas Sepe. He is a resident of the area who lives just
outside the 200-foot radius that would provide him with
mandatory notification of any proposed construction before
the Zoning Board. Id. at 57-58. He testified that he
has "observed in the last ten years . . . there's
more frequent storms, and greater flooding in the whole
area." Id. at 60.
William Derrig, another area resident, testified next against
the proposed construction. He testified that there has been
an increase in the flooding and associated erosion in the
area, and he was concerned that the proposed construction
would worsen the aforementioned problems. Id. at
64-68. He concluded his testimony by stating to the Board
that "If he builds a house that has run-off that runs
into my lot . . . you have ...