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Waltz v. The Zoning Board of Review of Town of Tiverton

Superior Court of Rhode Island, Newport

November 9, 2018

KIMBERLEY WALTZ, ELAINE BARBOZA GEORGE FOUNTAS and TRACIE E. FOUNTAS, Appellants,
v.
THE ZONING BOARD OF REVIEW OF THE TOWN OF TIVERTON; LISE J. GESCHEIDT in her capacity as Tiverton Zoning Board Chairperson; DAVID COLLINS in his capacity as Tiverton Zoning Board Vice Chairperson; GEORGE S. ALZAIBAK as Tiverton Zoning Board member; JOHN R. JACKSON in his capacity as Tiverton Zoning Board member; WENDY TAYLOR HUMPHREY in her capacity as Tiverton Zoning Board member; PETER MELLO in his capacity as Tiverton Zoning Board member; DENISE G. SAURETTE, in her capacity as the Town of Tiverton Treasurer; JOHN A. SCADUTO; MARCY SCADUTO; AND JOHN & MARCY SCADUTO, TRUSTEES, Appellees.

          For Plaintiff: Frank S. Lombardi, Esq.

          For Defendant: Peter F. Skwirz, Esq.; Anthony DeSisto, Esq.; Joelle C. Rocha, Esq.

          DECISION

          NUGENT, J.

         Appellants Kimberley Waltz, Elaine Barboza, George Fountas and Tracie E. Fountas (Appellants) challenge the decision of the Zoning Board of Review of the Town of Tiverton (Board) issued on August 20, 2017. That decision granted dimensional relief to Applicants John and Mary Scaduto (Applicants) to reduce the lot coverage of their nonconforming lot, as well as to build stairs beyond the preexisting setback. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

         I

         Facts and Travel

         Applicants' Trust, "John & Marcy Scaduto, Trustees," is the owner of the subject property, Plat 806, Lots 154 & 158 on Tiverton Tax Assessor's map located at 24 Shore Road in the Town of Tiverton (Property). Am. Compl. ¶¶ 13-15. The Property is a substandard lot, containing only 3750 feet in a R-80 zone, which is subject to different dimensional standards than other lots in a R-80 zone under Article VII § 4 of the Tiverton Zoning Ordinance. On June 2, 2017, Applicants applied for a dimensional variance from the Board requesting relief from Tiverton Zoning Ordinance, Article V, Sections 1 and 2(c). The Appellants are among the abutters to the Property. See Appellants' Br., Ex. B, Town of Tiverton Zoning Board Notice. At the hearing, Applicants specified that they sought relief from the front setback along Barbara Street (Front Yard Setback) which is currently 9.5 feet, requesting that it be reduced to 4.9 feet, and approval for a reduction of lot coverage from 37% to 34.3%. Hr'g Tr. 4-10, July 5, 2017 (Tr.)).

         The public and the abutters within 200 feet of the Property received notice of the July 5, 2017 hearing. The notice stated in part:

"A petition has been filed by John A Scaduto of Tiverton, RI requesting a variance to Article V Sections 1 and 2.c. of the Tiverton Zoning Ordinance in order to raze the existing home and construct a new single family home to conform to V.E. flood zone coastal requirements located at 24 Shore Road, Tiverton, RI being Plat 806 Lots 154 & 158 on Tiverton Tax Assessor's maps closer to the front, rear and side yard property lines than allowed and exceeding maximum lot coverage in a R80 zoning district." Appellants' Br., Ex. B.

         This application was filed as part of Applicants' effort to convert this property from their summer home into their year round home adding a second story to the Property.

         The Board heard Applicants' request for a variance on July 5, 2017. Although "relief from the front side, rear setbacks and lot coverage" was requested in the application, Applicants' attorney, Joelle Rocha, began by stating that the rear and side setbacks were not going to be affected. Tr. at 4-10; see Appellants' Br., Ex. F, Plans and Submissions to Zoning Board of Review. Instead, Ms. Rocha clarified that only two issues were before the Board: relief from the Front Yard Setback and for the reduction in lot coverage from 37% to 34.3%. Id. At the beginning of the hearing, Ms. Rocha offered new plans that included outside stairs to access the elevated structure. Tr. at 5. These plans were not included in the Board's package as they were not submitted with the original application. Id. Relief from the Front Yard Setback was required for the stairs to be constructed outside the dwelling. Initially, members of the Board were reluctant to consider these new plans as they received them for the first time at the hearing. Id. In response, Ms. Rocha opined that she was not sure "whether the stairs should be included in the setback," or whether "the stairs are a requirement for the setback." Tr. at 5-6. A Board member clarified for her that "[a]ny part of the structure would be the closest part of the structure [sic] would be within the setback distance. So if the stairs would be part of the structure, then that would be part of the setback." Tr. at 6. Nevertheless, the Board proceeded to discuss the stairs as part of the application. Tr. at 7.

         Applicant John Scaduto testified as to how his construction plans came to fruition. Upon deciding to move into the Property year round, Applicant wanted to expand the house by adding a second story. Tr. at 13. Applicant discovered that the costs associated with improving the Property exceeded 50% of the Property's value, triggering the Property's compliance with the coastal construction regulations of the Federal Emergency Management Agency (FEMA). Tr. at 12. These regulations seek to better protect properties and people alike in the event of coastal storms. Applicant sought assistance from Mr. Warren Ducharme, the State of Rhode Island Building Code Staff Architect, who strongly advised building the home to FEMA's regulations because the Property was in a VE-18 flood zone. Id. While building to comply with these regulations, Applicant also sought to remain on the same footprint of the original home but conceded the stairs go beyond that footprint. Tr. at 14-15. When the Board members inquired into whether Applicant considered interior stairways-as part of the garage under the raised house and within the existing footprint-Applicant said that they had considered it but it would have resulted in a loss of square footage for living space. Tr. at 22-23. Applicants explained they were "trying to get as much living space as you can out of the house." Tr. at 23. The existing house's living space is 692 square feet but there would be 1500 square feet of living space between the proposed structure's two floors because the second floor included an indoor addition which would cover the first-floor patio area underneath it. Tr. at 25.

         The Board heard from Applicant's engineer, Thomas J. Principe III (Mr. Principe), who testified to the proposed structure's design and otherwise corroborated Applicant John Scaduto's testimony. He explained the structure was compliant with the applicable FEMA regulations for a property located in a VE-18 flood zone, having worked on multiple properties subject to FEMA's regulations. Tr. at 17. He explained that the reason for raising the structure was for the structure to be above the flood zone. Tr. at 18. Mr. Principe reasoned that the need for this elevation is what pushed the proposed stairs as far out as they are. Tr. at 22.

         Mr. Neil Hall, the Town Building Official, commented on his experience evaluating the damage to waterfront property after Hurricane Sandy. Zoning Decision at 3; Tr. at 24. Mr. Hall recalled that houses such as the Applicants' proposed structure were among the few still standing after the storm. Id. Mr. Hall supported raising structures pursuant to the FEMA regulations and stated he knew many residents of the town were considering doing so themselves. Id.

         Attorney for Appellants Kimberley Waltz and Elaine Barboza, Mr. Frank Lombardi, questioned Applicant John Scaduto, Mr. Principe, and Ms. Rocha. Mr. Lombardi questioned Mr. Scaduto on his previous variance application to the Board in February 2016 when he requested relief to build a patio expanding his lot coverage from 25% to 37%. Tr. at 32. Mr. Lombardi questioned both Mr. Scaduto and Mr. Principe about the lot coverage, asking for an explanation as to how this proposed structure would reduce lot coverage from 37% to 34.3%. Zoning Decision at 2; Tr. at 32-33. Mr. Principe explained that the additions to the proposed structure would be above the existing patio-and therefore within that footprint for lot coverage purposes-but part of the existing patio would be removed for the stairway and thereby reduce the lot coverage to 34.3%. Id.; Tr. at 46-47.

         The Board next heard from the public. Four people came forward to support the Applicants' plans. Tr. at 39-41. Subsequently, Mr. Lombardi made some final remarks pertaining to other issues with the requested relief, such as the standard when granting a dimensional variance, as well as a pending lawsuit by the Town over titles to property along Shore Road-including the Applicants' property. Tr. at 42-43; see Town of Tiverton v. Leeshore Realty LLC, et al., C.A. No. NC-2016-0462. The Board did not see how the outcome of that case would affect Shore Road as it existed at the time of the Board's hearing. Tr. at 43-44.

         During their deliberation, two members of the Board expressed their hesitation with the application based on the exterior stairs. Tr. at 51. The members' primary concern centered around the Applicants' failure to construct an interior stairwell pointing to a similar application that had been able to save 5 feet of setback by using an interior stairwell. Id. A member stated they "would have liked to have seen an effort made to put those stairs put inside." Id. No other Board members expressed concern about the ...


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