Palmer v. City of Newport Zoning Board of Review, 030420 RISUP, NC-2017-0251

Docket Nº:C.A. NC-2017-0251, NC-2019-0322
Opinion Judge:VAN COUYGHEN, J.
Party Name:MARGARET F. PALMER, Trustee, Plaintiff, v. CITY OF NEWPORT ZONING BOARD OF REVIEW, REBECCA MCSWEENEY, CHRISTOPHER KIRWIN, ROBERT BUZARD, HEIDI BLANK, RICHARD B. RUDD, CHARLES ALLOTT AND BARTHOLOMEW GRIMES, in their capacities as members of the City of Newport Zoning Board of Review, 183 OLD BEACH ROAD, LLC and HORAN BUILDING COMPANY, INC., ...
Attorney:For Plaintiff: Matthew H. Leys, Esq. For Defendant: Girard Galvin, Esq.
Case Date:March 04, 2020
Court:Superior Court of Rhode Island
 
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MARGARET F. PALMER, Trustee, Plaintiff,

v.

CITY OF NEWPORT ZONING BOARD OF REVIEW, REBECCA MCSWEENEY, CHRISTOPHER KIRWIN, ROBERT BUZARD, HEIDI BLANK, RICHARD B. RUDD, CHARLES ALLOTT AND BARTHOLOMEW GRIMES, in their capacities as members of the City of Newport Zoning Board of Review, 183 OLD BEACH ROAD, LLC and HORAN BUILDING COMPANY, INC., Defendants.

MARGARET F. PALMER, Trustee, Plaintiff,

v.

CITY OF NEWPORT ZONING BOARD OF REVIEW, CHRISTOPHER KIRWIN, ROBERT BUZARD, CHARLES ALLOTT, WICK RUDD AND BART GRIMES, in their capacities as members of the City of Newport Zoning Board of Review, 183 OLD BEACH ROAD, LLC, HORAN BUILDING COMPANY, LLC, and DONNA R. MORVILLO, TRUSTEE OF THE DONNA R. MORVILLO REVOCABLE TRUST, u/d/t dated June 27, 2014, Defendants.

C.A. Nos. NC-2017-0251, NC-2019-0322

Superior Court of Rhode Island, Newport

March 4, 2020

For Plaintiff: Matthew H. Leys, Esq.

For Defendant: Girard Galvin, Esq.

DECISION

VAN COUYGHEN, J.

This case is before the Court after remand to the City of Newport Zoning Board of Review (the Zoning Board) for further findings of fact and conclusions of law on the question of whether a driveway area (the Subject Area) adjacent to Margaret F. Palmer, Trustee's (Appellant) property is required to meet the ten (10') foot accessory use setback provided in §17.100.080(B) of the City of Newport Zoning Ordinance (Ordinance).1 After rehearing, the Zoning Board issued a decision concluding that regardless of whether the Subject Area is considered a driveway, a turnaround, or a parking area, it is not required to meet the ten foot accessory use setback. For the reasons stated herein, this Court affirms the Zoning Board's decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I

Facts and Travel

A detailed recitation of the facts of this case can be found in Palmer v. City of Newport Zoning Board of Review, No. NC-2017-0251, 2018 WL 4001531 (R.I. Super. Aug. 14, 2018). This Court will discuss only those pertinent factual developments since its remand. This Court remanded NC-2017-0251 to the Zoning Board, with instructions to provide adequate findings of fact and conclusions of law for its Finding of Fact No. 5, which provided as follows: "5. That the portion of what the Appellant's [sic] have claimed is a parking area and the Appellee's [sic] have claimed is part of the driveway adjacent to the west property line is not required to comply with the 10 foot accessory use setback requirement in the Zoning Ordinance."

Because the composition of the Zoning Board had changed since the date of the original hearing, the Zoning Board held a de novo hearing on December 10, 2018 to determine whether the Subject Area must comply with the ten-foot accessory use setback. The first witness to testify at the hearing in support of Appellant was Derick Hopkins (Mr. Hopkins), whom the Zoning Board qualified as an engineering expert. Mr. Hopkins testified that based on his review of the "Proposed Site Plan" and "Existing Conditions Plan," which were accepted as Appellant's Exhibits C and D, respectively, the plan showed zero feet between the driveway area and the rear property line of the property at 183 Old Beach Road, Newport, Rhode Island (the Property). (Tr. at 7-11, Dec. 10, 2018 (Tr.).) Mr. Hopkins testified that in his opinion, driveways are just the portion of pavement that takes one from the road to a final destination, and that a turnaround is not part of a driveway. Mr. Hopkins noted that although turnarounds are not unusual, an area 10' to 12' deep is the usual depth for a turnaround for a residential property and that he had never seen a 20' deep turnaround at a residential property. He concluded that the Subject Area is not a driveway or part of a driveway but rather is a parking area large enough to park two cars. (Tr. at 12-13.)

Appellant also testified. She testified that her home, located at 236 Eustis Avenue, Newport, Rhode Island, (the Palmer Property), which was highlighted on a tax plat accepted by...

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