Providence County Superior Court Vogel, J.
Plaintiff: Timothy J. Robenhymer, Esq.
Defendant: William L. Bernstein, Esq.
Tolias (Appellant) brings this appeal from a decision (the
Decision) of the Zoning Board of Review for the Town of
Glocester (the Zoning Board or Board), denying his
application for dimensional relief. The Court exercises
jurisdiction over this matter pursuant to G.L. 1956 §
45-24-69. For the reasons set forth herein, this Court
remands the Decision to the Zoning Board to make additional
factual findings and conclusions of law.
Appellant owns property located on Spring Grove Drive in the
Town of Glocester (the Property), otherwise known as
Assessor's Plat 13, Lot 21. Zoning Board Hr'g Tr. (Tr.)
at 2:5-7, Oct. 25, 2018. The Property, located in an R-2
residential zone, is comprised of approximately forty-three
acres and encompasses all of Spring Grove Pond. Pl.'s
Mem. at 2; Tr. at 4:11-12; 23-24. The R-2 zone permits, among
other uses, single-family dwellings and requires a minimum
lot size of two acres. Glocester Zoning Ordinance (Ordinance)
Article III § 350-13.
Applicant seeks to build a single-family dwelling on the
upland area of the Property. The upland area is approximately
forty-eight thousand square feet in area. Tr. at 4:13-14. In
order to construct the dwelling, the Appellant requests
relief from Ordinance § 350-13. Id. at 2:8-13.
Ordinance § 350-13 requires a seventy-five-foot setback
from the front and fifty-foot setback from the side of the
Property. Ordinance § 350-13. The proposed plan requires
thirty-nine feet of relief from the front setback and twelve
feet of relief from the side setback. Tr. at 2:13-17.
Zoning Board held a properly advertised hearing on October
25, 2018. Id. at 1; Zoning Board Record: Notice of
Pubic Hearing, Oct. 10, 2018. At the hearing, civil engineer
and project planner Thomas D'Angelo (Mr. D'Angelo)
presented testimony in support of the requested variance on
behalf of the Appellant. Tr. at 2:18-19; 3:4-11; Zoning Board
Decision at 1. Mr. D'Angelo stated that the Appellant is
seeking a dimensional variance due to the size of the
Property. Tr. at 4:20-22. The Appellant requests that the
Zoning Board allow for setbacks of thirty-nine feet from the
front and twelve feet from the sides of the Property.
Id. at 2:13-17. Mr. D'Angelo argued that the if
the Property were only forty-eight thousand square-feet-the
size of the upland area-then the Property would be
undersized, and the Appellant would not require such a
dimensional variance. Id. at 7:6-13. Pursuant to
Ordinance § 350-66(B), undersized lots require setbacks
of only thirty feet from the front and ten feet from the
sides and rear of the property. Ordinance § 350-66(B);
Tr. at 4:22-5:3. However, because the Property is
approximately forty-three acres due to its inclusion of
Spring Grove Pond, Ordinance § 350-15 mandates that the
Appellant adhere to larger side and frontage setback
requirements. Ordinance § 350-15; Tr. at 5:3-5. Mr.
D'Angelo noted that all the lots surrounding the Property
are "quite a bit smaller" than the Property and are
also smaller than the upland area. Tr. at 5:6-7; 6:23-7:3.
Mr. D'Angelo testified that the Department of
Environmental Management previously approved "both
septic and wetlands" permits necessary to build on the
Property. Id. at 4:14-20. In describing where the
proposed single-family dwelling will be built on the
Property, Mr. D'Angelo stated that Mr. Boyle chose the
location with the least environmental impact. Id. at
12:1-2. Mr. D'Angelo further explained, "We have
kept it at the highest point of the land. We could have
stayed to the right, which probably aesthetically is a nicer
area, but we stayed in the better environmental area for
this." Id. at 5:20-24. The house cannot be
built any further back because "we would be within the
wetlands buffer." Id. at 9:15-17.
the hearing, Vice Chairman Steven Winsor (Vice Chairman
Winsor) asked Mr. D'Angelo for a "compelling
reason" for why the Board should approve the
application." Id. at 11:6-8; Zoning Board
Meeting Minutes, Oct. 25, 2018 (Zoning Board Minutes) at 5.
In response, Mr. D'Angelo reiterated that the Property is
bigger than any other property in the area and that the
Appellant is installing a state-of-the-art septic system that
is "[e]nvironmentally . . . better than any system
around." Tr. at 11:9-14.
abutters appeared before the Zoning Board in opposition to
the dimensional variance, and abutters Steven and Geraldine
Brown (collectively, Mr. and Mrs. Brown) submitted a letter
in opposition to the variance that Steven Masello (Mr.
Masello) read before the Zoning Board. Abutter Carol Nadeau
expressed concerns over how building on the Property will
impact Spring Grove Pond, including concerns about rising
bacteria levels in the pond. Tr. at 15:4-13; 16:21-24. Next,
abutter Joseph Roccio (Mr. Roccio) explained that he opposes
the variance out of concern for how building on the Property
will impact his house, which is located directly next door to
the Property. Id. at 24:19-21. Mr. Roccio noted that
he specifically opposed the degree of the variance and that
he would prefer for the Appellant to reduce the variance on
the side closest to his house. Id. at 25:16-23. Mr.
Roccio's wife, Donna Roccio (Ms. Roccio), also appeared
before the Zoning Board as an abutter in opposition to the
variance. Id. at 26:5-9. Ms. Roccio questioned
whether the Appellant created his own hardship in buying and
attempting to build on the Property knowing that conditions
exist on the Property rendering it difficult to build there.
Id. at 27:8-20; 30:10-13.
Mr. Masello read a letter from Mr. and Mrs. Brown, who could
not attend the hearing, expressing their strong objection to
the variance, which they believe is "excessive."
Id. at 30:21-31:11. Lastly, abutter John Wrenn (Mr.
Wrenn) stated that he also opposes the variance due to its
effect on Spring Grove Pond and the surrounding area.
Id. 34:11-17. Mr. Wrenn expressed his frustration
over the poor condition and mismanagement of Spring Grove
Pond as he can longer utilize the pond for recreation.
Id. at 11-20.
hearing statements from the abutters, Vice Chairman Steven
Winsor made a motion to deny the Appellant's application
for a variance. Id. at 38:13-17; Zoning Board
Minutes at 6. Vice Chairman Winsor stated, "In this
case, the [Appellant] in effect creates his own hardship by
intending to purchase a piece of property that requires, in
my opinion, an excessive amount of relief from the
dimensional regulations." Tr. at 39:7-11. In making the
motion to deny the application, Vice Chairman Winsor further
reasoned, "I believe it serves the community by leaving
the property as is, a wooded area, bordering a pond."
Id. at 39:14-16. Board member Tracey Donnelly
seconded the motion to deny the application. Id. at
39:23-24; Zoning Board Minutes at 7. The remaining members of
the Zoning Board unanimously voted to deny the application
for a variance. Id. at 40:12-19.
Zoning Board recorded its Decision denying the
Appellant's application for a dimensional variance on
November 30, 2018. See Zoning Board Decision. The
Appellant timely appealed the Board's Decision to this
Court on December 19, 2018. See Compl.
to § 45-24-69, the Superior Court possesses appellate
jurisdiction to review a zoning board's ...