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Irene C. Damaskos Trust v. Kirwin

Superior Court of Rhode Island, Newport

March 25, 2019

IRENE C. DAMASKOS TRUST, CHRISTOPHER R. HOSKING, JANE STEVENSON, RICHARD C. YOUNG and DEBORAH L. YOUNG, Plaintiffs,
v.
CHRISTOPHER KIRWIN, HEIDI BLANK, CHARLES ALLOT, BART GRIMES and REBECCA MCSWENY, in the official Capacity as Members of the ZONING BOARD OF REVIEW OF THE CITY OF NEWPORT, CHARLES KOPPELSON, RICHARD PINER and VALERIE PINER, Defendants.

          Jeremiah C. Lynch, III, Esq. For Plaintiff:

          Christopher J. Behan, Esq. Girard Galvin, Esq. Russell Jackson, Esq. For Defendant:

          DECISION

          NUGENT, J.

         Before this Court is an appeal from a decision of the Zoning Board of Review of the City of Newport (Board), which granted a special use permit and a dimensional variance to Charles Koppelson, Richard Piner and Valerie Piner (collectively, Appellees). The Irene C. Damaskos Trust, Christopher R. Hosking, Jane Stevenson, Richard C. Young and Deborah L. Young (collectively, Appellants) seek reversal of the Board's decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

         I

         Facts and Travel

         The property at issue in this case is located at 214 Eustis Avenue, Newport, Rhode Island, and is otherwise known as Tax Assessor's Plat 30, Lot 059. (Combined Application for a Special Use Permit & a Regulatory (Dimensional) Variance at 1) (Application). Richard W. and Valerie C. Piner own the property, which is located in an R-20 zone and contains 23, 726.59 square feet. It has 100 feet of frontage along Eustis Avenue, and it also has 101 feet along Old Beach Road. Id. at 3. Currently, the property contains two residential structures. Id. The "main house" is a two-story Colonial fronting on Eustis Avenue and contains approximately 1779 square feet of living space, while the "Cottage" is a single level structure near Old Beach Road which contains approximately 480 square feet of living space. (Peter M. Scotti Real Estate Report at 1, Mar. 23, 2017.) Mrs. Piner's son, Charles Koppleson, lives in the "cottage." (Appl. Hr'g Tr. at 10, Mar. 23, 2017).

         On September 26, 2016, Mr. Koppleson applied for a special use permit and a dimensional variance. (Application at 1.) Specifically, he sought

"to demolish and remove the existing detached Cottage which contains the second dwelling unit on the premises, and construct a new detached 1½ story dwelling ("Bungalow") in approximately the same location of the existing cottage on the eastern side of the lot." Id. at 2.

         The proposed new structure would contain approximately 2142 square feet of above grade living space. (James A. Houle Report at 2, Feb. 22, 2017.) The Application seeks dimensional relief from the lot coverage requirement and it will not intensify any existing dimensional nonconformities. (Application at 5.) The Board conducted a duly noticed hearing on March 23, 2017. (Tr. at 1.)

         Testifying on behalf of the Application were the property owner, Mrs. Piner, Mr. Koppelson, Engineer Michael Russell (Mr. Russell), [1] and Real Estate Expert Peter M. Scotti (Mr. Scotti). Real Estate Expert James A. Houle (Mr. Houle) and abutting neighbor Margaret Palmer (Ms. Palmer) testified against the Application.

         Mrs. Piner testified that the property has been in her family since 1941. (Tr. at 9.) She stated that the cottage has been on the property since at least 1954. (Id. at 10.)

         Mr. Koppelson testified that both he and his wife live in the cottage and that they need to "create a structure that can accommodate us and a growing family." Id. at 12. He stated that the cottage contains one bedroom, and although it is structurally adequate, it is not suitable for expansion due to a slope in the floor. Id. at 15. Mr. Koppelson informed the Board that the Planning Board had granted him permission to demolish the cottage. Id. at 16. Currently, the cottage only has a five-foot setback from a neighbor's property; however, the proposed structure would conform to the fifteen-foot setback requirement. Id. at 18.

         Mr. Koppelson then testified that the proposal is for a three-bedroom, "single-gable house with the gable front facing Old Beach Road[.]" Id. at 21, 27. He stated that the design would preserve his neighbors' sight lines of the nearby beach and pond, and that the size of the structure would increase from 480 square feet to 1428 square feet. Id. at 21 and 26. He stated that in order to build a three-bedroom house that would be low enough to the ground so as not to obstruct any views meant that he would need a 1.4 percent increase in lot coverage. Id. at 29-30. This would translate into a reduction of the footprint by approximately 330 square feet. Id. at 30. The existing cottage sits on a slab and does not conform to flood-zone requirements. Id. at 33.

         Next to testify was Mr. Russell. See id. at 34. He testified that he prepared a site plan for the proposed structure. Id. at 34-35. He stated that the existing utilities for the cottage, such as electricity, water and gas, are all connected to the primary dwelling, and that this arrangement would remain in place for the new structure. Id. at 35, 36. However, he said that the old cesspool servicing the cottage's wastewater would be replaced by a pump station or pump pit which would indirectly tie into the City's sewer service via the primary residence. Id. at 36. Mr. Russell stated that this arrangement would eliminate environmental concerns due to the proximity of the cottage to the pond. Id. at 37. The Chairperson of the Board pointed out that if the cesspool is within 200 feet of the pond, then the owner would be under a legal obligation to eliminate the cesspool regardless of the Application. Id. at 38.

         Mr. Scotti was the final witness to testify in favor of the Application. See id. at 40. During his direct testimony, Mr. Scotti testified that the cottage probably was originally built as a garage and that it "looks to be . . . at the end of its useful economic life." Id. at 42. Mr. Scotti stated that he first analyzed whether the proposal sought the least relief necessary by reviewing five years of sales data for single family homes in Newport. Id. at 43. He then compared the gross living area of those properties with the gross living area of proposed new structure, and he determined that the new structure was below the mean and median figures for single family residences. Id. at 43-44. Mr. Scotti testified that the entire gross living area of the main house and the proposed structure was less than "the three most proximate two-family structures in the neighborhood." Id. at 44.

         Mr. Scotti opined that not only is the proposal "absolutely consistent" and compatible with the surrounding area, but that the new structure actually would be an improvement to the neighborhood. Id. at 45. Mr. Scotti further opined that the Application was the minimum relief necessary because it was only seeking about a 1.5 percent increase in lot coverage on a 23, 000 square foot lot. Id. at 47. To support this opinion, Mr. Scotti observed that relative to other single-family houses and two-family uses, the 1.5 percent deviation is "not a huge amount. It is consistent." Id. at 47.

         On cross-examination, Mr. Scotti acknowledged that the Ordinance prohibits two principal dwellings on one lot. Id. at 48. He further stated that the instant Application involved "two units on a single lot[;]" specifically, "two buildings each containing one dwelling unit." Id. at 48, 49. Mr. Scotti later conceded that all of the two-family dwellings he had researched in the neighborhood were located in a single building. Id. at 49.

         Thereafter, Mr. Houle took the stand to testify against the Application. See id. at 52. Mr. Houle stated that in his opinion, the Application failed to meet the requirements for either a dimensional variance or a special use permit. Id. at 54. He observed that the footprint of the new structure would be three times larger than that of the existing footprint and that it would be 3.3 times larger if the planned porch was added. Id. Mr. Houle also stated that:

"because it's a story and a half, it contains 2, 142 square feet above grade . . . [which] is actually significantly larger than the existing [1779 square foot primary] house; and in addition to that, i[t] has a footprint that is 28 percent larger than the existing house when the porches and the decks are included on both." Id. at 54-55.

         He thus characterized the proposed structure as "a very large primary residence." Id. at 55.

         Mr. Houle then testified that he had conducted a survey of the lot coverage for the twenty houses in the immediate neighborhood. Id. He found that "[t]he mean [lot] coverage in that area is 12 percent, and the median is 10.6" percent. Id. He stated that only four of the twenty lots exceeded lot coverage, and of those, three were "substantially substandard in terms of square footage." Id. 56. Referring to the lot coverage for the three properties containing two-family residences about which Mr. Scotti previously had testified, Mr. Houle stated that two of them were conforming lots with coverage of 11.9 percent and 13.8 percent, respectively. Id. He then stated that while the third, two-family residence had lot coverage of 23.5 percent, that particular property was a 10, 890 square foot substandard lot for which "[y]ou would maybe expect to see excess lot coverage[.]" Id.

         Mr. Houle later opined about whether the Ordinance permits two primary dwellings on a single lot. Id. 56-57. According to Mr. Houle, the Application was seeking "to completely remove an existing nonconforming use and replace it with a larger nonconforming use." Id. at 57. In his opinion, such a situation "runs contrary to the intent of the Zoning Code," and with the housing goals of the Comprehensive Plan. Id. at 57 and 58-59. He further stated that "the requested variance, in my opinion, will alter the general character of the surrounding area[, ] [because] [i]t will place two, large primary dwelling units on one site by increasing the density beyond the capacity of the lot and somewhat overcrowding the neighborhood." Id. at 58. Mr. Houle further opined that because "[t]here are two principal dwelling units not permitted by right or special use[, ]" the Application should have required a use variance. Id. at 60.

         Ms. Palmer was the final witness to testify. See id. at 72. She expressed concern about the size of the proposed structure and how it would increase density in the neighborhood. Id. She also stated that the proposal possibly could cause an "increase [in] the flooding on Old Beach Road." Id. At the conclusion of the arguments of counsel, the Chairperson closed the hearing. Id. at 78.

         Prior to deliberations, the City's Zoning Officer advised the Board that in his opinion, the Application was not one for a use variance; rather, it was an Application for two permitted uses on one lot. Id. at 79. He further stated that if the City Council had intended to treat such an Application as one for a use variance, then it would have done so under Section 17.04.050(B) of the Ordinance, which lists prohibited uses that necessarily would require a use variance. Id. at 78-79.

         During deliberations, one Board Member observed that the requested variance only constituted a small percentage increase in lot coverage, and that he believed that the Application demonstrated sensitivity to the neighbors because it did not propose a mansion and took into account the visual impact on the neighbors. Id. at 80-81. He also noted that there already exists a cottage on the site and that "these Petitioners are interested in making it better. They want to grow a family there." Id. at 80.

         Another Board Member stated that "[i]n granting the dimensional variance, it's more than an inconvenience and hardship on the family to try to live in that particular cottage as is." Id. at 81. Although he expressed concern that the proposed structure could have been located in such a way as to have less of a visual impact on the neighbors and that perhaps the structure could have been a little less high, he ...


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