Town of Portsmouth APRIL 17, 2014

Transcription

1 Town of Portsmouth ZONING BOARD OF REVIEW 2200 East Main Road / Portsmouth, Rhode Island (401) APRIL 17, 2014 MEMBERS PRESENT: Mr. Kevin Aguiar, Chair, Mr. James Edwards, Vice-Chair, Mr. John Borden, Mr. Byron Hall, Mr. James Hall, Mrs. Tia Scigulinsky and Mr. Brian Smith. MEMBERS ABSENT: None. OTHERS PRESENT: Town Solicitor Kevin Gavin was present as legal counsel for the Board, Building Official George Medeiros, and Barbara Ripa as recording secretary. Mr. Aguiar called the meeting to order at 7:02 p.m. I. MINUTES: There were no minutes to be approved. II. CHAIRMAN S REPORT: There was no chairman s report. III. CONTINUED BUSINESS: 1. (C) A petition by Angela and William Arruda (applicant) and Vision Property Management (owner), 2922 East Main Road, Portsmouth, RI for a use variance to change a mixed use building into a residence, on tax assessor s map 31, lot 19, Article VI, Section D.5 & 6. Mr. Borden recused himself from the petition because he is an abutter and sat in the audience. Mr. Aguiar stated that before Angela and William Arruda is before the Board requesting a use variance. Before a use variance is issued to change a mixed use building into a residence, evidence must be given to support the hardship. Angela Arruda, who is still sworn in from a prior hearing, stated that the property hasn t been occupied as a store since 2005, so 9 years and there has been no successful store. In 5 years no one has tried to open one. The money needed to get the property up to code is out of range since it is not handicap accessible, there is no parking, and there is no separate entrance. They (the Arrudas) did not know it was a commercial building when they signed the lease to buy. She stated it would take at least $30,000 for it to be used as a commercial building A letter from Attorney Vernon Gorton, Jr., 181 Chase Road, on behalf of the Goetzingers who are abutters, stated that the Arrudas block the common driveway against what is written in the deed. 1 of 11

2 Mr. Aguiar called for abutters or interested parties. Attorney Vernon Gorton, Jr., 181 Chase Road stated that he represents David and Carol Goetzinger, abutter to the south. He told the Board that they are not often asked to grant the type of relief they are asked to grant tonight. Mr. Gorton said that the petitioners have to prove that there is no other commercial use for this property and he cited Supreme Court cases. Mr. Gorton also noted the gangway in the driveway is a right that the Goetzingers have in their deed. He sent them a letter and received no response and they have been parking in the driveway and blocking it. Mr. Gorton gave the Board a part of the deed labeled Exhibit B. Mr. Gorton said that if the Arrudas had agreed with the Goetzingers right they would have looked past their lack of evidence in this matter, so unless they would agree to keep the gangway open the Goetzingers will strenuously object unless it is a condition of approval. Ms. Arruda claims that she has information that the gangway was a courtesy and that there is no information on the Goetzingers deed for the gangway. Mr. Aguiar stated that the Arrudas must provide evidence that the subject land can no longer be of any beneficial use in the existing use. They do not have an expert to support their contention that it is no longer of any use as a commercial use. Deny: The use variance is very unusual. You must show that without this variance the property would serve no beneficial use. The difficulty in that area is that there are successful businesses in the area. Most commercial areas in town are suffering, but that works against you. Because of the recession, the property was never signed. Before you didn t know it was a business until you walked in the door. No money was put into the building. I don t think you provided the evidence necessary. I know you showed it didn t do anything for 10 years, but I don t think you provided evidence, so I deny. Approve: I have mixed feelings. It s been vacant for many years. No one is interested. It s time to do something else. Something needs to change, so I vote to grant the use change. Deny: It is difficult. I would like to encourage young people to move into the area, however, there has to be evidence and there is none here. I have to deny. Mr. Smith: Approve: It is difficult. You ve presented evidence to show the last years that no one wants to buy this property. You ve substantially got some proof. If you and your neighbors could have gotten along, they probably wouldn t have opposed you. I approve. 2 of 11

3 Deny: It is a tough decision. It is the Board s responsibility to make difficult decisions. The criteria are clear you must prove there is no other beneficial use for the property and you have to come in with proof that there is no other use for the building. I have to deny because the criteria has not been met for the property. The petition has been denied. Mr. Borden took his seat with the Board IV. NEW BUSINESS: 1. (R) Brian Martin (applicant) and Diana Fravel (owner), 8 Columbia Terrace, Portsmouth, RI for a variance and a special use permit to allow an above ground swimming pool closer to property lines than zoning allows on tax assessor s map 57, lot 56, Art IV, Sec B and Art VI, Sec A. Brian Martin, 8 Columbia Terrace, was sworn in. Mr. Martin stated that he s on a corner lot and doesn t meet the setbacks. He d like a stockade fence all around and has a tree and a leach field that are a problem with where to site the pool, so this is the only place to put it. He will have a locking ladder and no deck. The pool will be 42 high and 21 round. He gave testimony that he meets all the special use permit criteria. His hardship is that he has two front yard setbacks to meet. Mr. Aguiar called for abutters or interested parties. Robert Wadsworth, 1206 Middle Road asked if Mr. Martin s fence style would be in keeping with his existing fence. Brian Martin, 8 Columbia Terrace, map 57, lot 56, an R20 zone is seeking two dimensional variances and a special use permit to install a 21 diameter above ground pool. He s got a corner lot so he s got a 30 setback and will need a 20.5 side yard setback on the south and an 11 rear yard setback on the west. He will enclose it all with a 6 stockade fence. He is restricted by the location of the house, his septic system and a tree. A pool is a reasonable accessory use. It is not unreasonable. To deny would amount to more than a mere inconvenience. He meets the criteria for a special use permit so I approve that as well. A pool is a reasonable request for a permitted residential use. He has constraints on where to put it. It is reasonable and he has shown a hardship. I approve the dimensional variances. The Chairman walked the petitioner through the special use permit criterion and he meets it so I approve. 3 of 11

4 I vote to approve both the dimensional variances and special use permit for reasons previously stated by my colleagues. He has a corner lot, which is a hardship and he adequately answered the special use permit criteria, so I approve both. The Chair votes to approve both the dimensional variances and the special use permit for reasons given by Mr. Edwards and Mr. Borden. The Board decided to take a break at 8:09. The Board was called back to order at 8:17 2. Michael and Mary Zani, 1304 Anthony Road, Portsmouth, RI for a variance and a special use permit to construct stairs closer to property lines than zoning allows and to exceed allowable lot coverage on tax assessor s map 1, lot 51, Art IV, Sec B and Art VI, Sec A. Michael and Mary Conley Zani, 1304 Anthony Road were sworn in. Ms. Zani stated that after the fire in the Common Fence Point area, she began thinking about needing a second point of egress for her boys, so she would like a set of stairs from the top floor. The property abuts Common Fence Point Improvement Association property. Ms. Zani testified to special use permit criteria. Mr. Aguiar called for abutters or interested parties. There were none. Mary Zani is here, 1304 Anthony Road, map 1, lot 51, an R10 zone and is seeking a 3 addition on the back of her house for stairway access from the top to the lower, a 12 front yard setback to the east, a 17 rear yard setback to the west, a 2 side setback to the north and from 28.6% lot coverage to 30.9% lot coverage and a special use permit. It is for access for her children in case of fire. The lot is unique shaped. Her testimony speaks for itself; she is concerned for her children. The variances seem excessive but not so due to where the building is located. It is more than a mere inconvenience. The lot coverage is only a 2% increase. The special use permit criteria are met so I approve. 4 of 11

5 The exterior stairs are for safety. They are not proposing an increase in living area. The petitioners are constrained by the small lot. I vote to approve. The chair walked her through the special use permit criteria and she met the criteria so I approve. I am impressed. No second egress is dangerous, so I vote to approve both the dimensional variances and the special use permit. I approve, you illustrated the safety needs and you met the special use permit criteria, so I approve both. The Chair votes to approve both the dimensional variances and the special use permit. Almost anything you did you would need both, so I approve for reasons given by Mr. Edwards and Mr. Borden. 3. Gerald Gentilotti, 54 Narragansett Road, Portsmouth, RI for a variance and a special use permit to construct an addition to dwelling closer to property line than zoning allows and to exceed allowable lot coverage on tax assessor map 1, lot 31, Art IV, Sec B and Art VI, Sec A. Gerald Gentilotti, 54 Narragansett Road stated that he wants to build a bathroom on the first level of his home that is approximately 8 x 8 and he would need a 6 side yard variance and a 12.2% lot coverage variance and a special use permit. The bathroom would be one story. Mr. Aguiar walked him through the special use permit criteria and Mr. Gentilotti testified that he met all criteria. Mr. Aguiar called for abutters or interested parties. There were none. Gerald Gentilotti, is here for 54 Narragansett Road, map 1, lot 31, an R10 zone to construct a 7½ x 8 bathroom and he needs a 6 side yard variance. There is no bathroom on the first floor. There is no objection, it seems large, but it s a 2900 sf lot and there is no other place to put it due to the unique characteristics of the property. It is the least relief necessary and to deny would amount to more than a mere inconvenience. The additional lot coverage increase is 2.2% and is a negligible change. He testified that he met all the special use permit criteria, so I approve. 5 of 11

6 He is requesting dimensional relief for an additional bathroom. It is a small lot and he has a hardship due to that fact, so I grant the dimensional relief, which is reasonable and lot coverage relief. He meets the special use criteria, so I also grant the special use permit. Considering the location, it is in Common Fence Point, everyone there has the same coverage on the lots. It is reasonable, so I approve the special use permit and the dimensional and lot coverage variances. I concur with my colleagues and I approve both. The Chair votes to approve both the dimensional variances and the special use permit for reasons given by Mr. Edwards and Mr. Borden. 4. (R) William Nedderman, Old Mill Lane, Portsmouth, RI for a variance and a special use permit to construct an additional garage closer to property lines than zoning allows on tax assessor s map 68, lot 3C, Art V, Sec I.1 Art IV, Sec B and Art VI, Sec A. William Nedderman, Jr., stated that he was present to represent his son, William Nedderman, III. He did not have a letter stating that he had permission to represent him, however. He was advised to get a letter stating such and the Board would continue the petition to the regular meeting in May. A motion was made by Mr. Borden and seconded by Mr. Edwards to continue the petition of William Nedderman, Old Mill Lane, Portsmouth, RI, map 68, lot 3C, to the regular meeting scheduled for May 15, 2014 at 7:00 p.m. The motion carried with all in favor. 5. (R) James and Valerie Seveney, 72 Macomber Lane, Portsmouth, RI for a variance and a special use permit to construct a deck closer to property line than zoning allows and to exceed allowable lot coverage on tax assessor s map 34, lot 77, Art IV, Sec B and Art VI, Sec A(4). James Seveney, 72 Macomber Lane was sworn in. Mr. Seveney stated that Valerie Seveney was in the audience. He stated that his hardship is that he has a substandard lot, it is only 8400 sf in an R20 zone, and he would like to put a wooden cover over the top of his existing septic tank enclosure, just below the existing deck. He is at 20% lot coverage. The cover would be removable, it would allow accessibility to the septic system for maintenance, and it would provide additional deck area. The septic is above ground and is not attractive. The yard area is 6 of 11

7 lost, the view is lost and the deck will make the yard usable and improve the view of the yard and the waterfront space. Granting the dimensional variance will allow full enjoyment of their property with the least relief necessary. Mr. Aguiar discussed the configuration of the septic. Mr. Seveney stated that the septic system must be there anyway. It s an above ground sand filter and this will just be a cover and is an effort to cover it and make it usable. Mr. Aguiar led Mr. Seveney through the special use permit criteria and Mr. Seveney testified that it met all criteria. Mr. Seveney testified that it will increase the lot coverage by 3%. Mr. Seveney said he will put a railing on the east side. He testified that he will have to go to the CRMC to ensure that he can build this deck if he receives approval from the Board. Mr. Aguiar called for abutters or interested parties. A letter from Bill and Kate Labbe, 78 Macomber Lane, southerly abutters to the Seveneys wrote that the deck will have no impact on their property. David F. Fox, Esq., 850 Aquidneck Avenue, Middletown, RI stated that he was representing direct abutter Lynn Thurston to the north. He stated the cover will create an impervious surface and with other improvements that the Seveneys have made to their property, the runoff has become a much greater concern for Ms. Thurston. He stated that he did have a conversation with Mr. Seveney about installing a berm to stop runoff from reaching her property. Mr. Fox gave the Board Exhibit A, a photo illustrating erosion. Exhibit B is a photo of a downspout and a cement retaining wall. Mr. Aguiar said he wanted to clarify from Mr. Fox if he was concerned about additional runoff from the deck. Mr. Fox said he was concerned about runoff from the property, the deck being a part of it. Mr. Fox stated that if the Board would like to help the petition move forward, that they do so with a provision, or a contingency that the Seveneys: 1) install a berm that would go between and connect the two cement retaining walls on and between the Seveney and Thurston properties and 2) that the Seveneys redirect the downspout that currently is directed towards the Thurston property back toward the Seveney property. Mr. Aguiar asked if Mr. Fox had anything that demonstrated an erosion problem on the property. Mr. Fox stated he has an objector who has a right to put on whatever demonstration of why she objects to this petition and she s willing to forego that if in fact that berm is installed. Mr. Aguiar asked if has any evidence of erosion, or if he s got an agreement. Mr. Fox said he has an agreement with Mr. Seveney. Mr. Seveney stated that he was okay with the berm. He submitted additional pictures to the Board that showed water runoff. Discussion followed among the petitioner, the Board members, the Building Inspector, and Mr. Fox about the size of the berm and how much additional runoff the new deck would cause. Mr. Seveney said he would do what he had to do to make sure his 7 of 11

8 runoff is controlled properly. Mr. Aguiar and Mr. Medeiros discussed other ways to control runoff. Mr. Aguiar asked Mr. Fox if he had anything before the Board tonight that specifically pointed to a drainage or erosion problem that required that a berm be installed. Mr. Fox stated that he had evidence that he could put on that was both documentary and testimony about the runoff. Under questioning, Mr. Fox stated that it was not from an engineer. After significant discussion, Mr. Fox asked the Board for a five minute break with his clients. The Board broke at 9:40. The Board was called back to order at 9:44. Mr. Fox said his client would like the berm and the downspout redirected. A motion was made by Mr. Borden and seconded by Mr. Edwards that if the petition to construct a deck passes, a condition be placed on the petition that a berm be constructed under the supervision of the Building Inspector, George Medeiros and the petitioner. The berm should be constructed in the area between the two stone cement walls on the Seveney/Thurston property lines. Should the berm prove unsuccessful to alleviate the drainage problem, other drainage solutions will be investigated to relieve the issue in the area of the runoff and the downspout will be redirected to keep the water flow on the petitioner s property. The motion carried with three in favor and Mr. Aguiar and Mrs. Scigulinsky against. There were no other abutters or interested parties. James and Valerie Seveney, are here for 72 Macomber Lane, map 34, lot 77, for a 3% lot coverage variance, a 3 6 side yard setback variance to the south, and a special use permit to cover the existing above ground septic system. It is not unreasonable to cover the system and they get to use it a little bit. The lot coverage is not excessive. It meets the special use criteria and I vote to approve the dimensional variances and the special use permit. I will agree with Mr. Edwards. This is an existing structure and we are putting a cover on it. I wouldn t want to look at it as it is. It is a hardship amounting to more than a mere inconvenience. Regarding the special use permit criterion, this deck meets the criterion. I vote to approve both the dimensional relief and the special use permit. I vote to approve both for reasons previously mentioned by my colleagues. This should not be any problem at all. 8 of 11

9 I approve. It is a reasonable request. It has met all criteria. The conditions placed on it are unnecessary. The Chair votes to approve both the dimensional variances and the special use permit for reasons previously stated by Mr. Edwards and Mr. Borden. It is a good use to cover the septic and we will probably see a lot more in the future. 6. (R) David Minese (applicant) and John Ellis (owner), 90 Aquidneck Avenue, Portsmouth, RI for a variance and a special use permit to realign lot line which would increase the non-conformity of lot 174 on tax assessor s map 24, Art IV, Sec A.5, Art IV, Sec B and Art VI, Sec A. David Minese, 86 Aquidneck Avenue was sword in. He stated that he is trying to correct an issue from He found a bill of sale between Issuewood/Ellis where map 24, lot 173 purchased 100 sf for a chimney, and now they want to straighten the matter out and realign lot lines. Lot 174, 90 Aquidneck Avenue, needs relief because it will be smaller. It will go from 14,166 sf to 14,051 sf. It is an R20 zone, so need 5,949 sf of lot size relief. He has been before the Planning Board and the Planning Board issued their Advisory Opinion allowing the boundary change subject to required variances being granted by the Zoning Board of Review. Mr. Aguiar called for abutters or interested parties. There were none. David Minese is here representing William Ellis, 90 Aquidneck Avenue, map 24, lot 174, and he will need a 15 side yard setback variance on the north, a lot size variance of 5,949 sf, and a special use permit. He s reducing the lot 174 by 115 sf to complete the sale agreement in This will allow Mr. Minese to sell his property. It has been approved by the Planning Board. To deny would be more than a mere inconvenience. It meets the special use permit criteria as nothing has changed except for a slight change in lot line. I approve both variances. The change in lot lines will alleviate the encroachment and clean up the deed and allow the sale of property. To deny would amount to more than a mere inconvenience. The special use permit criterion is met. I vote to approve both the dimensional relief and the special use permit. I vote to approve both for reasons previously stated by my colleagues. 9 of 11

10 I approve both the dimensional and special use permit for reasons previously stated. The Chair votes to approve both the dimensional variances and the special use permit for reasons previously stated by Mr. Edwards and Mr. Borden. Mr. Byron Hall did not participate in the next petition. Mr. Brian Smith participated. 7. (R) Hope Morrow, 0406 Governor Paine Road, Prudence, RI for a variance and a special use permit to construct a porch and a garage closer to property line than zoning allows on tax assessor s map 78, lots 35, 36, & 37 Art IV, Sec B and Art VI, Sec A. Hope Morrow, 0406 Governor Paine Road, Prudence Island was sworn in. Ms. Morrow said that she needs a special use permit and dimensional variances because she would like to build a garage on a lot that fronts on a private road. She was before the Board once before to relocate a deck and to construct an addition to that deck. Now she would like to construct a porch roof over that deck. She owns lots 35, 36 and 37 and she is in the process of merging them, but it is not complete at this time, so she will need dimensional variances. She stated that she wants to locate the garage where it is on the plan because she plans to grow food and this will give her more room to garden. Mr. Aguiar called for abutters or interested parties. Sandra Gempp, 74 Grain Terrace asked if it was going to be a community garden. Ms. Morrow said it was not. Mary Kluit, 342 Glenwood Ave., Pawtucket, RI who also has a home at 0139 Hillside Ave. wanted to find out more about what Ms. Morrow s plans were for the property. Mr. Aguiar read a letter dated April 8, 2014 from the Prudence Conservancy into the record. Hope Morrow is here from 0406 Governor Paine Road and she would like to construct a porch roof over an existing deck which would require a 3 side yard setback variance on the south and she would like to construct a 24 x 24 garage on the west side 15 from the property line, so she will need a 15 back yard setback on the west. She is merging lots. The reason she wants to placing the garage there is to make more room to garden and to make it closer to grade. Her direct abutter is the Conservancy and they are neutral. It is not unreasonable. The garage will not have a negative impact on the neighborhood. We have talked about putting erosion controls in. I vote to approve the special use permit criteria. Regarding the variance to build on a lot that does not front on a public road, it is more than a mere inconvenience, so I vote to approve. 10 of 11

11 Regarding the special use permit, this Board routinely grants relief to those requesting a variance from the requirement to a lot having frontage on a public road, so I approve that. Regarding the dimensional relief, I have a little problem with 15 to the rear, but since it abuts Conservancy land and it is only 8.8% lot coverage and a garage is a reasonable accessory use so I approve. I approve both the dimensional variances and the special use permit for reasons previously stated by Mr. Edwards and Mr. Borden. Mr. Smith: For reasons previously stated, I approve both the special use permit and the dimensional variances. The Chair votes to approve both the dimensional variances and the special use permit for reasons previously stated by Mr. Edwards and Mr. Borden. A motion to adjourn was made by Mr. James Hall and seconded by Mr. Borden. The motion carried with all in favor. The meeting was adjourned at 10:45 p.m. Respectfully submitted, Barbara A. Ripa, Recording Secretary 11 of 11