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Tolias v. Zoning Board of Review for Town of Glocester

Superior Court of Rhode Island, Providence

September 9, 2019

NICHOLAS TOLIAS, Plaintiff,
v.
THE ZONING BOARD OF REVIEW FOR THE TOWN OF GLOCESTER, by and through its members, GARY MEINERTZ, CYRIL CROWLEY, JOSEPH TRUNZO, TRACEY DONNELLY, and STEVEN F. WINSOR, Defendants.

          Providence County Superior Court Vogel, J.

          For Plaintiff: Timothy J. Robenhymer, Esq.

          For Defendant: William L. Bernstein, Esq.

          DECISION

          VOGEL, J.

         Nicholas 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.

         I

         Facts and Travel

         The Appellant owns property located on Spring Grove Drive in the Town of Glocester (the Property), otherwise known as Assessor's Plat 13, Lot 21.[1] 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.

         The 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.

         The 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.

         Additionally, 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.

         During 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.

         Four 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.

         Thereafter, 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.

         After 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.

         The 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.

         II

         Standard of Review

         Pursuant to § 45-24-69, the Superior Court possesses appellate jurisdiction to review a zoning board's ...


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