Enright v. Town of Bristol Zoning Board of Review, 052620 RISUP, PC-2010-4294
|Docket Nº:||C. A. PC-2010-4294, PC-2010-5144, PC-2013-1095|
|Opinion Judge:||LICHT, J.|
|Party Name:||PATRICIA A. ENRIGHT v. TOWN OF BRISTOL ZONING BOARD OF REVIEW, DENNIS HARDIMAN and LISA HARDIMAN|
|Attorney:||For Plaintiff: Scott T. Spear, Esq., Karen A. Pelczarski, Esq. For Defendant: Andrew M. Teitz, Esq., Nancy Letendre, Esq., Evan S. Leviss, Esq.|
|Case Date:||May 26, 2020|
|Court:||Superior Court of Rhode Island|
For Plaintiff: Scott T. Spear, Esq., Karen A. Pelczarski, Esq.
For Defendant: Andrew M. Teitz, Esq., Nancy Letendre, Esq., Evan S. Leviss, Esq.
Appellant Patricia A. Enright (Appellant or Ms. Enright) has filed this consolidated appeal from two decisions of the Town of Bristol Zoning Board (Zoning Board) sitting as the Planning Board of Appeal and one decision of the Zoning Board, sitting as a Board of Review. Each of these appeals seeks to prevent Leslie Gray and Georgina MacDonald (Owners or Applicants)1 from creating a three-lot subdivision of their land in Bristol, Rhode Island. Ms. Enright asks this Court to (1) reverse the Planning Board of Appeal's decision approving Applicants' Proposed Plan (Master Plan Approval); (2) reverse the Zoning Board's decision granting Applicants' dimensional variances (Dimensional Variance Approval); and (3) reverse the Planning Board of Appeal's decision approving Applicants' Preliminary Plan (Preliminary Plan Approval). The Zoning Board has objected to the instant appeal. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
Facts and Travel
The Court pauses to note the lengthy delay that occurred in this case. One must wonder why this case, which is ten years old, is still pending. First, the property was placed on the market and then sold. Next, for some reason unknown to the Court, no one moved to assign this appeal for decision until 2015 when it was assigned to the Court on July 16, 2015. The Court was asked to take a view, which it did on October 29, 2015. The Court was then asked not to decide the case as the parties were trying to resolve their differences. They even went to a third-party mediator. Those efforts failed. A conference with the parties was held on September 5, 2018, at which time the Court was advised that the official tape of one of the Zoning Board meetings was inaudible. It was agreed the parties would work to reconstruct the testimony from that meeting. However, that did not happen, so finally in June 2019, the Court asked the parties to submit a scheduling order for memoranda, which they did, and the last brief was filed on September 15, 2019.
The Proposed Subdivision
Applicants owned the property located at 125 Poppasquash Road in Bristol, Rhode Island, otherwise known as Lot 2 on the Town of Bristol Tax Assessor's Map 182 (the Property) and lived in a single-family waterfront dwelling on the Property. Ms. Enright owns the abutting property located at 127 Poppasquash Point.2
The Property contains 5.3 acres of land and is located in an R-20 residential zoning district (Notice of Public Hearing, at 1, Apr. 5, 2010.), which requires the minimum lot frontage and lot width be 120 feet. (Town of Bristol Zoning Ordinances (Ordinance) Article IV § 28-111, Table B: Dimensional Table.) Applicants filed a proposed three-lot Minor Subdivision plan (the Subdivision Plan) for the Property with the Bristol Planning Board (the Planning Board). The Subdivision Plan required dimensional variances from the lot frontage and width requirements from the Zoning Board and a regulatory waiver from the interior lot angle requirements from the Planning Board. (Bristol Technical Review Committee (TRC) Plan Review Notes at 1-2, Oct. 27, 2009.) The Planning Board requested that Applicants create two plans in addition to the Subdivision Plan: (1) a "Maximum Use Plan," showing the Subdivision Plan with phantom lines illustrating the full potential for future development; and (2) a "By-Right Plan," demonstrating the subdivision with three lots that conformed with the Ordinance and Regulations. (TRC Plan Review Notes at 2, Oct. 27, 2009.)
The Property contains several old stone walls totaling over 1000 feet.4 There is a stone wall running the entire 372.01 feet of frontage along Poppasquash Road, except for a 14-foot opening, which constitutes the end of a driveway that leads to the existing residence (the Poppasquash Wall). Beginning approximately 50 feet east from Poppasquash Road and about 15 feet from each side of the driveway, there are two stone walls running parallel to the driveway at about 140 feet (the Driveway Walls). The Driveway Walls are about 44 feet from each other, and if extended westerly they would be perpendicular to Poppasquash Road. Then, about 16 feet from the eastern end of the Driveway Walls there are two stone walls: one running generally north for about 125 feet and the other generally south for about 165 feet, with each wall running almost to the northern and southern, respectively, boundary lines of the Property (the Lot Line Walls).
Under the Subdivision Plan, Applicants sought to subdivide the Property into three lots. Lot 1 contains about .68 acres of land and is bounded by the northern boundary of the Property, the northerly Lot Line Wall to the east, the northerly Driveway Wall to the south, and Poppasquash Road to the west. Lot 2 contains about .99 acres of land and is bounded by the southern boundary of the Property, the southerly Lot Line Wall to the east, the southerly Driveway Wall to the north, and Poppasquash Road to the west. Lot 3, a waterfront lot, contains 3.68 acres of land and the existing single-family dwelling. It is bounded to the east by Bristol Harbor, to the north and to the south by the northern and southern boundaries of the Property, and to the west by the Property Line Walls which form common boundaries with Lots 1 and 2, respectively. Lot 3 is connected to Poppasquash Road by a strip of land about 44 feet wide running from Poppasquash Road to the end of the Driveway Walls. As previously stated, within that strip of land is an existing driveway. Lots 1 and 2 would access Poppasquash Road by the grant of an easement from the end of the Driveway Walls to the existing driveway and then to Poppasquash Road.
The Subdivision Plan did not comply with some of the dimensional requirements of the Ordinance. Although there is more than enough frontage on Poppasquash Road for three lots, the boundaries of the proposed lots in the Subdivision Plan align with the existing stone walls and trees on the Property. As a result, Lot 2 and Lot 3 would not meet the dimensional requirements for minimum lot frontage and width under the Ordinance5 and would require variances from the Zoning Board. Further, Lot 3 would be a "flag lot, "6 because it lacked the average-lot-depth to average-lot-width ratio required by the Regulations and would therefore require waivers from the Planning Board. In order to preserve the stone walls and the trees, Lot 1 and Lot 2 would access Poppasquash Road through existing breaks in the stone walls pursuant to an easement and over the existing driveway contained in Lot 3 and would not have access by a curb cut on Poppasquash Road.
The Maximum Use Plan depicted what the Property would look like if the Subdivision Plan was approved and if Lot 3 was further subdivided into six smaller lots, the maximum number of lots allowed under the Ordinance and Regulations.
Lastly, Applicants presented the By-Right Plan, which configured Lot 1, Lot 2, and Lot 3 in a way that conformed to frontage and width requirements of the Ordinance. Similar to the Subdivision Plan, Lot 1 and Lot 2 would access Poppasquash Road through an easement on the driveway in Lot 3. Also similar to the Subdivision Plan, in the By-Right Plan, Lot 3 would still be a "flag lot" and would require waivers from the average-lot-depth to average-lot-width ratio requirements in the Regulations. The By-Right Plan would not require dimensional variances.
The main distinction between the Subdivision and By-Right Plans is the placement of the boundary lines in relation to the existing stone walls. While the By-Right Plan would preserve the stone walls and tree lines using easement restrictions, Lot 1 would have a stone wall "running through it and dividing it into a 2/3, 1/3 scenario," (Zoning Board Decision, ¶ 5, Aug. 19, 2010), whereas the Subdivision Plan would align the existing stone walls and trees with the boundary lines of the lots. The Subdivision Plan was the only proposal in which the boundary lines aligned with the existing features on the Property.
Master Plan Approval
On January 12, 2010 and February 9, 2010, the Planning Board held two duly noticed public hearings on Applicants' Subdivision Plan. (Notice of Public Hearing, Jan. 12, 2010 & Feb. 9, 2010, respectively.) At the January 12, 2010 meeting, 7 Applicants indicated that the Subdivision Plan was designed to preserve the beauty of existing fixtures on the land and that the existing driveway would service the waterfront house and provide access for the two lots in the front pursuant to an easement.
Administrative Officer, Diane M. Williamson, the Director of Community Development for the Town of Bristol, testified in support of the Subdivision Plan. She testified that, in the By-Right Plan, the road could not be built with the stone walls and trees as they existed. She also certified that all the requirements for Master Plan review were complete.
Ms. Enright called Mr. Joseph D. Lombardo, a Licensed Land Use Planning Consultant, to offer expert testimony in opposition to the Subdivision Plan. Mr. Lombardo testified that Lot 3 needed a waiver for interior angles because it would be a "flag lot" and that the Subdivision Plan would require variances because it was not in compliance with the Ordinance's dimensional requirements or the Regulations.8 He also testified that variances cannot be granted if an applicant's primary desire...
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