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Archetto v. Zoning Board of Review of Town of Jamestown

Superior Court of Rhode Island, Newport

May 16, 2018

HENRY W. ARCHETTO, MARIA A. ARCHETTO, PAUL H. ARCHETTO, LINDA C. ARCHETTO, and MARIA A. ARCHETTO-HICKMAN
v.
THE ZONING BOARD OF REVIEW OF THE TOWN OF JAMESTOWN AND RICHARD BOREN, JOSEPH LOGAN, DEAN WAGNER, RICHARD CRIBB, RICHARD ALLPHIN, JUDITH BELL, AND TERRENCE LIVINGSTON IN THEIR CAPACITIES AS MEMBERS OF THE ZONING BOARD OF REVIEW OF THE TOWN OF JAMESTOWN, AND CHRISTIAN R. SMITH

          For Plaintiff: Robert E. Flaherty, Esq.

          For Defendant: Wyatt A. Brochu, Esq.

          DECISION

          VAN COUYGHEN, J.

         In this zoning appeal, Henry W. Archetto, Maria A. Archetto, Paul H. Archetto, Linda C. Archetto, and Maria A. Archetto-Hickman (collectively, Appellants) seek judicial review of a decision of the Zoning Board of Review of the Town of Jamestown (Board). The decision approved Defendant Christian R. Smith's (Applicant or Mr. Smith) Application for a dimensional variance. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

         I

         Facts and Travel

         The Applicant is the owner of a property located in the Town of Jamestown, and further described as Lot No. 264 on Tax Assessor's Plat No. 1 (the Property). (Application at 1.) The Property is situated in an RR80 zone, contains approximately 63, 609 square feet, and does not have any frontage on a public street. Id. at 1 and 3. The land is delineated on a plat called Conanicut Park that was drawn by John Mullin and recorded in the land evidence records in approximately 1873. (Board's Decision at 1.) Our Supreme Court has described this plat as follows:

The plat plan covers an extensive area at the northern end of the island. At the time this plat plan was drawn, all of Conanicut Park was owned by the Conanicut Land Company. It is clear that the company's intention was to develop Conanicut Park into a residential neighborhood. The plat plan reveals a subdivision including more than 2, 000 lots, many streets, parks, groves, ponds, and even an area labeled 'Steamboat Landing' . . .
Most of Conanicut Park remains undeveloped today . . . [A] great many of the streets shown on the plat plan do not exist, [and] . . . Conanicut Park is actually a relatively heavily wooded area with considerable brush and briar . . . [D]evelopment of this plat according to the plat plan was halted in the late 1800s because of a contaminated well and an outbreak of typhoid fever among the residents of that time. Gammons v. Caswell, 447 A.2d 361, 362- 63 (R.I. 1982).

         The Applicant's Property is bordered by a paper street called Circuit Avenue. Circuit Avenue has access to East Shore Road via another paper street called Providence Avenue. (Ex. 8D.)[1] Although Providence Avenue traverses East Shore Road, this Decision only is concerned with the westerly portion of that paper street. Said portion is forty feet wide and abuts several properties, one of which belongs to Appellants. The Appellants' property is described as Lot No. 184 on Tax Assessor's Plat No. 1 (the Archetto property). (Ex. 8C and Tr. at 13, July 28, 2015 (Tr. I).). Currently, in order to access the Archetto property, Appellants use a driveway that is located entirely within the area delineated as Providence Avenue.

         On June 19, 2015, Applicant sought relief from Article 3, Section 82-302, Table 3-2 of the Zoning Ordinance for the Town of Jamestown (Ordinance), which requires 200 feet of frontage on a public road in order to construct a single-family residence on the Property. (Application at 3.) To achieve access from East Shore Road, Applicant proposed extending the existing driveway further along Providence Avenue in order to meet Circuit Avenue, eventually culminating with a turnaround on the Applicant's Property. Specifically, Applicant proposed "a 12-foot wide driveway with 5-foot buffers on either side." (Tr. I at 13.)

         Prior to a hearing on the matter, Applicant obtained an "insignificant alteration permit" from the Rhode Island Department of Environmental Management (Ex. 8F.), as well as a septic permit (Ex. 8G.) and "a permit from the Department of Transportation for the intersection of the driveway and East Shore Road, because East Shore Road is a highway." (Tr. I at 17.) The Applicant also obtained approval for the plan from the Jamestown Fire Department (Ex. 8I.) and the Jamestown Planning Office. (Ex. 8K.)

         The hearings were held on July 28, 2015 (Tr. I.), September 22, 2015 (Tr. II.), and November 17, 2015 (Tr. III.) Mr. Smith testified on his own behalf (Tr. I at 12-25.) Attorney Robert E. Flaherty spoke on behalf of Mr. Henry Archetto (Tr. III at 11-22.), and abutter Paul Sullivan also testified. (Tr. III at 23-24.) At the conclusion of the hearing, the Board unanimously voted in favor of the Applicant and granted the dimensional variance.

         Additional facts will be supplied in the analysis portion of this Decision as needed.

         II

         Standard of Review

         This Court's review of a zoning board decision is governed by § 45-24-69(d), which provides:

The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been ...

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