WILLIAM BAUMLIN SR. and CLAUDETTE BAUMLIN, Plaintiffs,
v.
BERNARD FREZZA, Chair, ANTHONY PILOZZI, DENNIS CARDILLO, RICHARD FASCIA, THOMAS LOPARDO, IN THEIR CAPACITIES AS MEMBERS OF THE JOHNSTON ZONING BOARD OF REVIEW, Defendants, MARVIN HANSON, Plaintiff,
v.
JOHNSTON ZONING BOARD OF REVIEW BY ITS MEMBERS, THOMAS LOPARDO, ANTHONY PILOZZI, JOSEPH ANZELONE, RICHARD FASCIA, RUSSELL CAMPINELLI, DENNIS CARDILLO, ALBERT COLANNINO, WILLIAM BAUMLIN, CLAUDETTE BAUMLIN, and WILLIAM BAUMLIN JR, Defendants.
Providence
County Superior Court
For
Plaintiff Baumlin: Alfred Russo, Jr., Esq.
For
Plaintiff Hanson Stephen P. Levesque, Esq.
For
Defendant: Joseph R. Ballirano, Esq.
DECISION
LICHT,
J.
These
consolidated cases concern property in the northwest corner
of Johnston. The landowners, William and Claudette Baumlin
(the Baumlins), and an abutter, Marvin Hanson (Hanson), each
appeal decisions of the Johnston Zoning Board of Review (the
Zoning Board). Jurisdiction is pursuant to G.L. 1956 §
45-24-69.
I
Facts and Travel
The
travel of this case is convoluted. The Baumlins' property
is off Bigelow Road in the far northwest corner of Johnston
and has two houses on it-a primary dwelling on the southern
half of the property and an accessory in-law dwelling on the
northern half. The primary dwelling has a shed to its south,
and the in-law dwelling has a garage to its northeast. Road
access to the Baumlins' property is via Bigelow Road, a
public street bordering to the east. Hanson owns property
abutting the Baumlins to the northeast. The Hanson property
has no frontage on Bigelow Road-access to the road network is
through a permanent, express, appurtenant easement (the
Easement) over the servient Baumlins' property.
The
Baumlins' goal has been to subdivide their land into four
lots. Three of these lots would have single-family homes on
them. Two of these homes are existing-the primary dwelling
(on Lot 2) and the in-law dwelling (on Lot 3)-and one, on Lot
1, would be built in the future. The fourth, central lot
would become an access road, providing access to Lots 2 and
3. Lot 4 is larger than, and encompasses, the Easement.
Appended to this Decision are two maps adapted from plans in
the record created by Joe Casali Engineering and dated August
25, 2011. The first map shows the property in question after
the proposed subdivision, and the second shows an inset
focusing on the Easement.
A
The
Planning Board
On or
about November 6, 2007, the Baumlins began their efforts to
subdivide their property by submitting plans to the Town of
Johnston (the Town). See Mem. from Lorri Caruso to
Johnston Planning Board, Nov. 26, 2007. The Johnston Planning
Board (the Planning Board) conditionally approved the
Baumlins' Preliminary Plan for a Minor Subdivision at
their December 4, 2007 meeting, see Planning Board
Mins. 2, Dec. 4, 2007, issuing a written decision on January
17, 2008. The approval was granted "for a three (3) lot
subdivision and construction by Applicant of a public road
right-of-way and laid out so that all three (3) lots have the
proper frontage along a public improved roadway."
Planning Board Decision at 4, Jan. 17, 2008. Further, the
Planning Board incorporated the Johnston Department of Public
Works' recommendations regarding drainage, as well as the
Department of Public Works' requirement that the Baumlins
dedicate the right-of-way to the Town but retain
responsibility for maintenance of the right-of-way. Mem. from
Lorri Caruso to Planning Board, Nov. 26, 2007.
From
the record, it seems that the Baumlins spent most of 2008 and
2009 getting the required wetlands permits from the Rhode
Island Department of Environmental Management. According to
the Planning Board minutes, the Preliminary Plan approval
expired on December 3, 2008, but the Planning Board granted
the Baumlins a one-year extension on April 7, 2009. By
mid-2010, the Baumlins were ready to apply for Final Plan
approval for their subdivision and submitted such an
application on May 27, 2010. The initial application was
deemed incomplete, however. A revised application was
certified complete on October 8, 2010.
The
Planning Board heard the matter on November 9, 2010. The
Planning Board discussed various concerns raised by Town
officials. At the Baumlins' request, the hearing on the
application was continued until March 1, 2011. The matter was
continued at that meeting and several times thereafter, until
it was heard on July 12, 2011. According to the minutes of
that meeting, the administrative officer reported on a
complaint Hanson had filed on July 7, which alerted the Town
to the Easement overlapping the proposed roadway, as well as
Hanson's other concerns. The Easement is also referenced
in a July 1, 2011 letter from the Town Planner to the Town
Solicitor. The matter was continued yet again, to October 4,
2011, while Town officials worked with the Baumlins to assess
the situation.
B
The First Zoning Board Decision
At some
point-perhaps the July 12, 2011 Planning Board meeting-the
Baumlins either decided or were advised to seek variances
from the Zoning Board. According to a September 21, 2011
letter from the Town Planner to the Zoning Officer, the
Baumlins requested "relief as a prerequisite of Final
Plan approval by the Planning Board." Per the
Baumlins' Zoning Board of Review Application, the
Baumlins sought three forms of relief: (1) Relief from the
required 140-foot frontage on an approved town
road;[1] (2) Changing the accessory family dwelling
(in-law) to a single-family dwelling; and (3) Dimensional
relief for the garage on Lot 3, as the garage that was built
was 1025 square feet, violating the 150 square-foot maximum
size allowed by the regulations.
In a
letter dated September 21, 2011, the Town Planner opined that
the frontage relief requested "may be appropriate for
this location IF the Zoning Board issues a variance and IF
the town is assured, through a properly executed and recorded
document, that the Town right of way will be privately
...