KIMBERLEY WALTZ, ELAINE BARBOZA GEORGE FOUNTAS and TRACIE E. FOUNTAS, Appellants,
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.
Plaintiff: Frank S. Lombardi, Esq.
Defendant: Peter F. Skwirz, Esq.; Anthony DeSisto, Esq.;
Joelle C. Rocha, Esq.
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.
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,
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.
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.
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.
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.
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.
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.
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.
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.
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 ...