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Callaci v. Zoning Board of Review of Town of Exeter

Superior Court of Rhode Island, Washington

August 27, 2018

CHRISTOPHER CALLACI, Plaintiff/Appellant,
v.
ZONING BOARD OF REVIEW OF THE TOWN OF EXETER, TRADE WIND INVESTMENTS, LLC, AND CAROL J. MANN, Defendants/Appellees.

          For Plaintiff: Kelly M. Fracassa, Esq.

          For Defendant: Stephen J. Sypole, Esq.

          DECISION

          TAFT-CARTER, J.

         Christopher Callaci (Mr. Callaci), an abutting landowner, appeals the June 22, 2018 remand decision (Decision) of the Zoning Board of Review of the Town of Exeter (Zoning Board), granting Trade Wind Investments, LLC's petition for dimensional variances to construct a house on property located at 350 William Reynolds Road, Exeter, Rhode Island. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, this Court affirms the Zoning Board's decision.

         I

         Facts and Travel

         Trade Wind Investments, LLC (Trade Wind) of 567 South County Trail, Suite 111, Exeter, Rhode Island submitted an application to the Town of Exeter for dimensional relief for property located at 350 William Reynolds Road, Exeter, Rhode Island (the Property) on January 18, 2017. (Zoning Appl.) The Property, owned by Carol J. Mann (Ms. Mann), consists of .65 acres or 28, 314 square feet. (Zoning Appl.) It is situated in Zoning District CR-5 and is a preexisting, nonconforming plot of land. (Zoning Appl.; Zoning Bd. Hr'g Tr. (Tr.) 11-12, Mar. 9, 2017. Trade Wind sought to construct a 1600 square foot, three bedroom, single-family dwelling on the Property. (Decision; Zoning Appl.; Tr. 4.) The zoning application requested dimensional relief "under Exeter Zoning Ordinance, Article II, Section 2.4.2.1 (acreage); 2.4.2.2 (street frontage); 2.4.2.4 (front setback); 2.4.2.6 (left and right side setbacks)[;] and 2.4.2.7 (rear setback) to construct a 3 bedroom single family dwelling." (Decision; Zoning Appl.) Trade Wind specifically requested the following dimensional relief:

Ordinance Requirement

Variance Requested

(1)Min. lot area..................

5 acres................

4.35 acres

(2)Min. frontage..................

350 ft.................

220 ft.

(3)Min. front yard setback..........

100 ft.................

14 ft.

(4)Min. right side yard setback.......

100 ft.................

62 ft.

(5)Min. left side yard setback........

100 ft.................

59 ft.

(6) Min. rear setback...............

150 ft.................

49 ft.

         A public hearing was held by the Zoning Board on March 9, 2017. At the conclusion of the hearing, the Zoning Board granted Trade Wind's application by a vote of four to one with Board Member McMillan opposing Trade Wind's application. (Tr. 74.) However, the decision granted the application by a vote of five to zero. (Decision.) The approval was conditioned on the building of the proposed dwelling in accordance with the plans submitted to this Zoning Board on the hearing date. (Tr. 72-74.)

         The Zoning Board recorded its written decision on March 24, 2017. (Decision.) Mr. Callaci filed a timely appeal on April 12, 2017. The Zoning Board filed its objection on December 6, 2017.

         On April 4, 2018, after finding the decision insufficient for judicial review for failing to identify how each individual member voted, and because the decision lacked non-conclusory findings of fact, this Court remanded this matter to the Zoning Board for a new decision. The Zoning Board prepared and recorded the new decision on June 27, 2018.

         Mr. Callaci argues that Ms. Mann, and not Trade Wind, is the applicant in this matter, and that she created her own hardship by settling a case via a consent judgment that reduced the size of the subject lot from 0.93 acres to 0.65 acres. He maintains that this Court should reconsider the merits of the case underlying the consent judgment. Mr. Callaci contends that the Zoning Board also erred by finding that the plan was the least relief necessary and finding that the plan did not impair the intent and purpose of the zoning ordinance.

         The Zoning Board maintains that it lacks jurisdiction to question the validity of a Superior Court judgment. The Zoning Board avers that the proposed home's reasonable size and the preexistence of a non-conforming lot does not impair the intent of the ordinance and does not constitute more than the least relief necessary.

         II

         Standard of Review

         Section 45-24-69 provides the Superior Court with the specific authority to review zoning board ...


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