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Biggs v. Bongiolatti

Superior Court of Rhode Island, Washington

April 11, 2018

GRETCHEN G. BIGGS
v.
LINDA BONGIOLATTI, WALTER PAWELKIEWICZ, DAVID GIORNO, MARK DOESCHER, AND ALBERT CLEMENCE IN THEIR CAPACITIES AS MEMBERS OF THE TOWN OF WESTERLY ZONING BOARD OF REVIEW

          For Plaintiff: Kelly M. Fracassa, Esq.

          For Defendant: Nancy Letendre, Esq.; John S. Payne, Esq.

          DECISION

          TAFT-CARTER, J.

         In this administrative appeal, Gretchen G. Biggs (Appellant) appeals the June 29, 2016 decision of the Town of Westerly Zoning Board of Review (the Zoning Board), affirming the zoning official's denial of a zoning certificate for her plan to build a "widow's walk" atop the roof of her home at 15 Fenway Road (the Property) in the Town of Westerly (the Town). Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

         I

         Facts and Travel

         Appellant owns the Property described as Lot 35 on Assessor's Plat 157. (Hr'g Tr. 6, May 4, 2016 (Tr. I).) The Property is a nonconforming parcel located in a medium-density residential zoning district categorized as MDR-30. Id. at 2; see Westerly Code § 260, Attach. 11.

         In 2011, Appellant applied for and obtained[1] a special use permit and dimensional variances allowing her to expand her primary residence by a total of 908 square feet or 24.66%. (Tr. I at 3; Zoning Bd. Decision, Jan. 4, 2012 (Zoning Bd. Decision I).) The zoning ordinance allows for the expansion of a nonconforming use. Id. It provides in pertinent part: "A legal nonconforming use shall be extended or added to only by special use permit; such expansion shall not exceed 25% of the floor space or area use of the use at the time the passage of this subsection or any predecessor ordinance first made the use nonconforming." Westerly Code § 260-32(D). The Zoning Board approved Appellant's application, but included in the decision one special condition:[2]

"No future development on this site or additions/increase in square footage to the three existing structures is permitted. The maximum allowable increase of the floor space or area use of the nonconforming [sic] of 25% was granted with this approval." (Zoning Bd. Decision I (bold in original).)

         The Zoning Board's decision was not appealed, and Appellant proceeded with the renovations. (Hr'g Tr. 9, June 1, 2016 (Tr. II); Letter from Appellant to Abutters, Apr. 16, 2016.)

         In 2015, [3] Appellant applied for a zoning certificate regarding her plan to construct a small deck or "widow's walk" recessed into her roof, along with an associated stairway for access.[4] (Zoning Certificate Appl. at 1-2; Tr. I at 4-5.) To obtain a building permit for such a plan, the Town requires submission of a zoning certificate indicating that the proposed construction complies with the zoning ordinance. (Stipulation, Sept. 12, 2017.)

         The zoning official, Jason Parker (Mr. Parker), denied the zoning certificate. (Letter from Mr. Parker to Appellant, Oct. 7, 2015.) He responded that the proposed construction would violate the zoning ordinance absent a special use permit from the Zoning Board. Id. Mr. Parker relied upon the language in the 2012 zoning decision as foreclosing all future development on the Property without additional action by the Zoning Board. Id. In his letter to Appellant, Mr. Parker instructed her to apply to the Zoning Board for a use variance. Id. Despite Mr. Parker's instructions, Appellant filed an appeal of his decision denying the zoning certificate to the Zoning Board of Review. (Appl. for Appeal to the Zoning Bd. of Review, Apr. 11, 2016.)

         A public hearing was conducted on May 4, 2016. At the hearing, the Zoning Board considered the appeal. (Tr. I at 2.) Mr. Parker testified that he concluded that the proposed construction of a widow's walk was not permitted pursuant to the Zoning Board's 2012 decision. Specifically, he stated:

"[I]n that first condition that says no future development on this site, it leads me to believe that there was a reason that got put in there. I wasn't here, again, I could not identify anything to make myself feel comfortable with not seeing it for any other way than the way it was written[.]" Id. at 17.

         Appellant argued that the condition had been misinterpreted by the zoning official because the proposal to build a widow's walk did not expand the nonconforming use:

"So, what I'm here today on is appealing the other language in the first sentence. It says no future development on the site is permitted, and if the development were to increase the square footage, then yes, that's perfectly appropriate, but if the development that she is proposing or the changes, or the construction she is proposing is, just as an example, a fence around a vegetable garden, a flagpole, you know, exterior features on the house, those things are not constrained by the ordinance, not constrained by the nonconforming use provisions." Id. at 7.

         Appellant contended further that the previous Zoning Board decision included "surplus language" added by the zoning official at that time, Elizabeth J. Burdick (Ms. Burdick), and that this additional language violated the zoning ordinance. Id. at 9. Appellant also introduced letters from several neighbors indicating their acquiescence to her request to build the widow's walk, as well as several photographs. Id. at 10-11. The Zoning Board continued the hearing to determine whether the town zoning clerk could obtain a recording of the December 7, 2011 hearing. Id. at 20-24. The recording was never obtained.

         The Zoning Board reconvened the hearing on June 1, 2016. (Tr. II at 1.) Abutter Christopher Pile (Mr. Pile) testified at the hearing and argued in opposition to Appellant's purported appeal. (Tr. II at 11-12.) He contended that Appellant had made other, unpermitted additions to her home, including some that resulted in increasing the internal square footage of the home. Id. at 12. Mr. Pile also advocated against allowing Appellant to construct a widow's walk because it would limit the privacy in parts of his home as well as that of his brother who is also an abutter. Id. at 13. Neighbor Ellen Pile (Ms. Pile) additionally spoke out against Appellant's plan because of privacy concerns, and she presented photos that suggest the proposed widow's walk would have a view into the bedrooms of her home. Id. Ms. Pile also indicated that she had been involved in the discussions related to the 2011 special use permit application, and that the decision was the result of compromises about the use of the Property, and that no development should be allowed on the Property. Id. at 17.

         Appellant testified that her proposed use of the widow's walk would not involve parties or lighting. Id. 24-26. She merely sought the ability to take advantage of her water view and have a place to ...


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