IRENE C. DAMASKOS TRUST, CHRISTOPHER R. HOSKING, JANE STEVENSON, RICHARD C. YOUNG and DEBORAH L. YOUNG, Plaintiffs,
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:
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
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).
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.
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.)
on behalf of the Application were the property owner, Mrs.
Piner, Mr. Koppelson, Engineer Michael Russell (Mr. Russell),
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
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.)
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.
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
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.
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.
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.
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.
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.
characterized the proposed structure as "a very large
primary residence." Id. at 55.
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[.]"
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.
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.
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.
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.
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 ...