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McGowan v. Zoning Board of Review of City of Warwick

Superior Court of Rhode Island

March 13, 2017


         Kent County Superior Court

          For Plaintiff: Susan A. Chiariello, Esq.

          For Defendant: Peter D. Ruggiero, Esq.


          RUBINE, J.

         This 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 § 45-24-69.


         Facts and Travel

         Applicant 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 Coastal). Id.

         On 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.

         Attorney 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.

         Edward 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 16.[1] 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.

         Mr. 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.

         Mr. 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. at 34.

         Mr. 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." Id.

         Mr. 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. at 35-36.

         He 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 36.

         The 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.

         The 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.

         Mr. 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 ...

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