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Palmer v. City of Newport Zoning Board of Review

Superior Court of Rhode Island, Newport

August 14, 2018

MARGARET F. PALMER, Trustee, Plaintiff,
v.
CITY OF NEWPORT ZONING BOARD OF REVIEW, REBECCA MCSWEENEY, CHRISTOPHER KIRWIN, ROBERT BUZARD, HEIDI BLANK, RICHARD B. RUDD, CHARLES ALLOTT, and BARTHOLOMEW GRIMES, in their Capacities as members of the City of Newport Zoning Board of Review, MICHAEL J. MCVICKER, JACQUELINE H. MCVICKER, 183 OLD BEACH ROAD, LLC, HORAN BUILDING COMPANY, INC., and DRM REALTY, LLC, Defendants.

          For Plaintiff: Matthew H. Leys, Esq.

          For Defendant: Peter B. Regan, Esq.; Christopher J. Behan, Esq.; Turner C. Scott, Esq.

          DECISION

          VAN COUYGHEN, J.

         Appellant Margaret Palmer, in her capacity as trustee (Appellant), appeals the May 24, 2017 decision of the City of Newport Zoning Board of Review (the Board of Review). In its decision, the Board of Review approved the issuance of a building permit and associated plans for the property located at 183 Old Beach Road, Newport, Rhode Island. For the reasons stated herein, this Court affirms the Board of Review's decision as it relates to the patio and the underground water quality system and remands to the Board of Review as it relates to the driveway to provide findings of fact and conclusions of law to support its decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

         I

         Facts and Travel

         The instant appeal arises from the development of property located at 183 Old Beach Road, Newport, Rhode Island, identified as Lot 72 on the Newport Tax Assessor's Plat 30 (the Property). The Property measures approximately 17, 422 square feet and is zoned as R-20 Zoning District.[1] The Property was formerly owned by Appellees 183 Old Beach Road, LLC and Horan Building Company, Inc.; however, on April 16, 2018, the Property was conveyed to DRM Realty, LLC (collectively, the Appellees).[2] Appellant owns the property located at 236 Eustis Avenue, Newport, Rhode Island, which abuts the Property at issue in this appeal.

         On September 8, 2016, the Newport Planning Board granted an application to the Appellees to demolish the single-family home then existing on the Property. On December 19, 2016, the Appellees filed a building permit application (the Building Permit) and associated plans with the Newport Building Inspector seeking to construct a new 3630 square foot single-family home with a detached garage and guest suite on the Property. The Building Permit was approved on December 21, 2016 by the Building Inspector. On December 22, 2016, Mark Horan (Mr. Horan), the sole member of 183 Old Beach Road, LLC and President of Horan Building Company, Inc. filed revised foundation and floor plans for the Property, which removed a front porch, sun deck and two window wells from the residence.

         Subsequently, on December 27, 2016, Appellant filed a timely appeal to the Board of Review requesting that it reverse the decision of the Newport Building Inspector, which approved the Building Permit for the Property and associated plans. Specifically, Appellant's appeal to the Board of Review argued that the Building Permit and associated plans violated the City of Newport's Zoning Ordinance because:

(1). . . [T]he plans violate lot coverage requirements of the Zoning Ordinance, as a result of the size of the proposed main building and garage (inclusive of roofs), and further from features such [as] a proposed raised patio structure and elements such as HVAC and similar equipment;
(2) . . . [T]he plans provide for structures within the required setbacks, including but not necessarily limited to an underground water infiltration structure in the front setback and a raised patio structure within the side setback in violation of the Zoning Ordinance;
(3) . . . [T]he plans provide for an accessory use parking area within less than 10 feet of the rear line in violation of the Zoning Ordinance Section 17.100.080(B);
(4) . . . [T]he plans do not accurately disclose the height of the proposed structure;
(5). . . [T]he Owner/Applicant have not made adequate provisions "for the proper control of drainage water and sedimentation" as required by the Zoning Ordinance. App. 61-62.

         The Board of Review held a hearing on the appeal on February 27, 2017. At the beginning of the hearing, the Zoning Board accepted the following exhibits: Appellant's Exhibit "A," which included plans dated September 21, 2016 titled "Existing Conditions Plan," plans dated October 24, 2016 titled "Permit Set" with handwritten revisions noted thereon, and documents titled "Proposed Details" and "Proposed Site Plan"; Appellant's Exhibit "B," which included the Notice of Appeal; and, Appellant's Memorandum of Law in support of her appeal.

         The first witness to testify at the hearing in support of Appellant was Derick Hopkins (Mr. Hopkins), whom the Board of Review qualified as an engineering expert. Mr. Hopkins testified that based on his review of the plans dated September 21, 2016, the lot coverage for the project would be approximately 16.5% for the residence and garage, and if the raised patio structure were included, it would be 28.1%, where 15% was the maximum allowed. Mr. Hopkins went on to testify that he had not seen the revised plans on file at City Hall that had been submitted on December 22, 2016, which removed a front porch, sun deck and two window wells from the residence.

         Appellant also testified. She testified that her home, located at 236 Eustis Avenue, Newport, Rhode Island, is directly behind the Property to the west, and that her family has owned it since 1986. Appellant testified to the characteristics of the neighborhood and described the flooding problems on Old Beach Road. She also testified regarding her concern about a parking area directly adjacent to her rear boundary line with no setback.

         At the beginning of Appellees' case, the Board of Review accepted the following exhibits: Appellees' Exhibit "1," which includes a sheet of definitions from the City of Newport Zoning Ordinance, lot coverage calculations for the Property and height calculations for the Property. First to testify in support of Appellees' case was Jeremy Rosa (Mr. Rosa), whom the Board of Review qualified as an engineering expert. Mr. Rosa testified that the development of the Property would cause no increase in water runoff onto Old Beach Road. He testified that the purpose of the substantial regrading of the Property was to remove the residence from the flood zone but stated that it would not be necessary to regrade the entire area of the patio in order to take the residence out of the flood zone.

         Appellees' next witness was Mr. Horan, who testified regarding the plans for the development of the Property, including the character of the Property and details of lot coverage. Mr. Horan testified that on December 22, 2016, he submitted revised site plans to the Building Inspector, which eliminated a front porch, sun deck, and two window wells. He stated that it was his belief that, with those modifications, the plans met the 15% lot coverage requirements of the Newport Zoning Ordinance because the lot coverage of the proposed building and accessory building on the revised site plans for the Property was 2, 555.5 square feet, which made the lot coverage 14.66%.

         After considering the testimony and evidence presented during the February 27, 2017 hearing, the Board of Review's decision made findings of fact and voted unanimously (5-0) to approve the Application and specifically held as follows:

1. That with the removal of [the] front porch, sun deck and 2 window wells from the house, the proposed lot coverage of the property is under the 15% allowed by the zoning code.
2. That the bluestone patio shown on the Site Plans is not a building or an accessory building that, if built, should be included in the calculation of lot coverage or comply with the ...

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