Baumlin v. Frezza

         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 ...