Ray Reedy, Inc. v. Town of North Kingstown, C. A. WC 2007-0664

CourtSuperior Court of Rhode Island
Docket NumberC. A. WC 2007-0664
Decision Date08 June 2009



Before this Court is an appeal from a decision of the Town of North Kingstown Zoning Board of Review (the "Board") which denied the applicant, Ray Reedy, Inc. and Johnston Corporation ("Appellants") several dimensional variances from the Zoning Ordinance of the Town of North Kingstown (the "Ordinance") §§ 21-311(f)-(g), 21-186(d)(1) and Article IV Dimensional Regulations Table 2A. The Board also denied Appellants a special use permit pursuant to the Ordinance §§ 21-311(g)-(h). Appellants seek a reversal of the Board's decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I Facts and Travel

The property in dispute is located on Boyer Street, described as Lots 59 and 60 on Assessor's Plat 74 of the Town of North Kingstown, Rhode Island (the "Property"). The Property is comprised of two pre-existing legal non-conforming undersized lots pursuant to Ordinance § 21-311(e) and G.L. 1956 § 45-24-39, which have merged by operation of law. The Property consists of 4848 square feet of vacant land located in the Neighborhood Residential (NR/R-40) Zoning District, which generally requires 40,000 square feet of land for development of a single-family dwelling. (See Ordinance Article IV—Dimensional Regulations, Table 2A.) The Property is also located in a Groundwater Overlay Zoning District, which requires that the average density of the lot does not exceed one dwelling unit per two acres. See section 21-186(d)(1).

The NR/R-40 Zoning District requires lots to have 90 feet of road frontage, to be 100 feet from front to rear and 80 feet wide and to have side setbacks of 12 feet and a rear setback of 35 feet. Additionally, the Ordinance permits single-family dwellings on merged non-conforming lots comprising fewer than 10,000 square feet, provided that any interior side setback is 12 feet and that the rear setback meets the 35 foot requirement applicable to the NR/R-40 zone. (See Ordinance § 21-311(f).) Notwithstanding this provision the Ordinance also provides that single-family dwellings are not allowed on merged lots within the NR/R-40 district that do not meet the required frontage and depth requirements unless the frontage is 90 feet and the depth is 100 feet. (See Ordinance § 21-311(g).) The Property yields zero feet of frontage, a width of 50 feet, side setbacks of 11 and 9 feet, and rear setback of 30.5 feet.

In 2007, Appellants, who purchased the Property in 2002 requested dimensional variances for the following: (1) the lot size requirement pursuant to Ordinance § 21-311(f); (2) the depth requirement pursuant to § 21-311(g); (3) the frontage requirement pursuant to § 21-311(g); (4) the width requirement pursuant to Article IV—Dimensional Regulations, Table 2A; (5) the minimum density requirement pursuant to § 21-186(d)(1); (6) the rear setback requirement pursuant to Article IV—Dimensional Regulations, Table 2A; and (7) the side setback requirement pursuant to § 21-311(f). Appellants also requested special use permits for the following: (1) relief from the 90 foot frontage requirement pursuant to §§ 21-311(g) and (h); and (2) relief from the 100 foot depth requirement pursuant to § 21-311(g).1[]

Public hearings on Appellants' application were held on June 12, 2007 and September 11, 2007. During the hearings, Appellants called three expert witnesses: Ed Pimental ("Pimental"), a land planning and zoning expert; Scott Morehead ("Morehead"), a professional engineer and land surveyor; and Robert Degregorio ("Degregorio"), a real estate expert. The experts were questioned by Appellants and the Board, and all three experts endorsed the proposed dwelling.

Pimental testified that the average footprint is 1700 square feet on a lot size of 14,000 square feet, which is approximately 12 percent lot coverage. (Tr. 6/12/07 at 7-8.) He testified that the proposal was designed to fit the character of the neighborhood [with 16 percent lot coverage] consisting of 780 square foot footprint on a 4848 square foot lot. Id. In support of the dimensional variances, Pimental testified that: there is no ability to acquire any additional land to bring it into compliance; the hardship is not the result of any prior action of the applicants; the granting of the requested variance would not alter the general character of the neighborhood; and the relief necessary would be the least relief necessary. (Tr. 6/12/07 at 10-11.) Pimental also testified that: the proposal would not alter the general character of the surrounding area nor pose a threat to the drinking water supply; the sewage and waste disposal system was approved; and the lot could meet parking requirements. (Tr. 6/12/07 at 12.)

As a professional engineer, Morehead testified that although the Property could not meet the requirement for two acres in the Groundwater Overlay District, the proposal does comply with the standards in applying denitrifying technology and set back from abutting wells. (Tr. 6/12/07 at 18.) He also testified that Appellants had already obtained a variance for the setback from the Property's own well, which was granted by Rhode Island Department of Environmental Management ("DEM") as part of the Individual Septic Disposal System ("ISDS") permit. Id. In response to the Board's question on traffic, Morehead responded that, "It's a short drive, long winding road coming from, in from, which is a dead end, minimal development. There is adequate access. This one additional house will certainly not cause congestion." (Tr. 6/12/07 at 19-20.) Morehead said the hardship from which the applicants seek relief is due to the unique characteristics of the land, the relief requested is the least relief necessary, and the hardship suffered if the relief is not granted would be more than a mere inconvenience. (Bd. Minutes 6/12/07 at 7.)

Degregorio testified—from a real estate point of view—that the value of the house would be worth approximately $229,000; and if Appellants were not able to build, then the land could not be used for anything. (Tr. 6/12/07 at 26.) The Board also questioned Richard Johnston, who identified himself before the Board as the applicant, but who appears to have actually been an agent of Appellant Johnston Corporation. The Board questioned Johnston as to whether he intended to live in the house, and he responded that he intended to sell it. (Tr. 6/12/07 at 23.)

Several neighbors also spoke on the record at the hearings including Christine Griffith, Shannon Griffith, and Ken Raposa. The neighbors described the road and expressed their grave concern with regard to traffic and safety by referencing the unpaved and deteriorating nature of the road. (Tr. 6/12/07 at 27-45.) Ms. Griffith was concerned that her well would be closer to the applicants' septic system than it is to her own. (Bd. Minutes 6/12/07 at 8.) She said Boyer Street is a 20 foot wide dirt road for which there is no turnaround for emergency vehicles at the dead end. Id. Mr. Griffith was concerned about traffic on the one lane road with the amount of equipment needed for the construction. Id. Mr. Raposa voiced his concern that the construction equipment would damage the private dirt road. Id. Dale Grogan, a non-abutter resident of Shore Drive, testified that she was concerned with drainage and a lack of a proper water wetland crossing. (Bd. Minutes 6/12/07 at 9.) She said that during the winter months, access can be nonexistent causing the Boyer Street residents to park on Shore Drive. Id.

Thereafter, the June 12, 2007 hearing was continued to allow time for Town officials to look at Boyer Street. (Bd. Minutes 6/12/07 at 9.) During the second hearing, the Town's Principal Planner, John Hansen, testified that the Town's Fire Marshall reviewed the site and stated that the Fire Department is able to access the Property. (Bd. Minutes 9/11/07 at 2.) At that point, Mr. Griffith stated that the turn-out is inadequate for emergency vehicles and in a recent emergency, he was blocked in his driveway by vehicles. Id. However, Appellants' planning and zoning expert Pimental had previously testified that the turn-out is actually an easement.2[] (Tr. 9/11/07 at 6.)

Subsequently, the Board reviewed the application only as a special exception and use variance, and not also as dimensional variances applied for by Appellants. Id. at 27. The Board applied the "no other beneficial use" standard appropriate for use variances rather than the less stringent "mere inconvenience" standard applicable to dimensional variances.3[] Id. at 25. Pursuant to the Ordinance, the Board must have four board members in favor of an application for a variance to be granted. (Ordinance § 21-11(c)(3).4[]) Three members voted to approve the application while two members denied it. (Tr. 9/11/07 at 27-30.) The opposing members stated:

I have to agree with the folks, with the folks that spoke. Everything about it, the lot is substandard. I think in this case it was purchased with the understanding it was substandard. There is a financial gain that would be involved. It does seem to, it does seem to be in disagreement with section 906.3 [sic].5[] It's on the ground overlay. Whatever happened eight years ago is not today. I think as of the regulations today, we should be following the regulations as of today . . . . (Tr. 9/11/07 at 29)
I vote no also. As for me, I believe the hardship has not been proven in my mind. I also believe we asked the Town for an opinion on the turnaround. That was just that; it was an opinion. My opinion, I do not agree. I think it's an unsafe area. For those two reasons, I vote no. Id. at 29-30.

At the conclusion of the hearing, the Board denied the special...

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