MINUTES OF THE CUMBERLAND ZONING BOARD MEETING
HELD VIA ONLINE ZOOM WEBINAR
ON WEDNESDAY, OCTOBER 14, 2020 AT 7:00 P.M.
ZONING BOARD MEMBERS PRESENT WERE THE FOLLOWING:
John McCoy, Chairman
Robert Chaput, Vice‑Chairman
Joseph Craveiro
Mike McGrath
Edward G. LeBlanc
Ryan Antrop, 1st Alternate
Evan Elgin, 2nd Alternate
ALSO PRESENT
Peter Skwirz, Esquire, Counsel to the Zoning Board
Brad Ward, Building Official
Dolly Rousseau, Zoning Clerk
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Mr. McCoy called the meeting to order at 7:00 p.m., and all the Members of the Board listed above were present.
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20‑06. Joseph J. Pacheco, of 112 Dexter Street, Cumberland, RI 02864 has petitioned this board for a Dimensional Variance for an addition of a garage in the rear yeard setback. Article 18‑2, Section (a). Described as Assessor's Plat 007, Lot(s) 0676, and Designated Zone R‑2. Located at 112 Dexter Street, Cumberland, RI 02864.
20‑07. Roger and Brenda Farrell, of 14 Westwood Drive, Cumberland, RI 02864 has petitioned this board for a Dimensional Variance for an addition in the front yard setback. Article 18‑2, Section (a). Described as Assessor's Plat 033, Lot(s) 0318, and Designated Zone R‑1. Located at 14 Westwood Drive, Cumberland, RI 02864.
20‑08. Freedom Bank, a Division of Bristol County Savings Bank, of 584 Putnam Pike, Greenville, RI 02828 has petitioned this board for a Dimensional Variance for a freestanding sign, Maximum height, and Minimum setback. Article 13‑8, Section 13‑6. Described as Assessor's Plat 033, Lot(s) 0291, and Designated Zone C‑2. Located at 2152 Mendon Road, Cumberland, RI 02864.
20‑09. JAK Realty, LLC, of 2295 Diamond Hill Road, Cumberland, RI 02864 has petitioned this board for a Dimensional Variance for freestanding sign, Maximum height, and Minimum setback. Article 13. Described as Assessor's Plat 024, Lot(s) 0016 & 0130, and Designated Zone C‑1. Located at 2295 & 2311 Diamond Hill Road, Cumberland, RI 02864.
Mr. McCoy stated the Board actually has four matters on the docket as the Board of Review.
Mr. McCoy stated to Mr. Skwirz that it was his understanding the Board is going to be continuing all of them. Mr. Skwirz stated that is correct.
Mr. Skwirz stated that the Planning Board had some technical difficulties with their Zoom at their last meeting, so they were not able to get the recommendations to this Board which the Board would need before it can consider these requests.
Mr. Skwirz stated that, therefore, the Board would have to continue them to allow them to provide that advisory opinion.
After brief discussion, Mr. McCoy asked for a motion and a second to continue these four matters for the reason expressed by Mr. Skwirz.
Mr. LeBlanc so moved the motion to continue the matters. Mr. McGrath seconded the motion.
THE MOTION WAS APPROVED 5‑0. Mr. McCoy stated that these four matters would be continued to November 11.
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Mr. McCoy stated that the only other item of business as the Board of review is the minutes that were in the Board's packet from August 12, 2020; and he stated that, if everyone has had a chance to look at those, he would take a motion to approve them.
Mr. LeBlanc so moved the motion to approve the minutes from October 14. The motion was seconded by Mr. McGrath. THE MOTION WAS APPROVED 5‑0.
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Mr. McCoy then stated he would take a motion to adjourn the Board of Review. Mr. LeBlanc so moved the motion to adjourn. Mr. McGrath seconded the motion. The Board of Review adjourned at 7:07 p.m.
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20‑10. JAK Realty, LLC, of 2295 Diamond Hill Road, Cumberland, RI 02864, has petitioned this board for an Appeal of the Zoning‑Building Official Decision for denying pre‑existing, non‑conforming grandfather status of a sign. Article 17‑11, Section (a). Described as Assessor's Plat 024, Lot(s) 0016 & 0130, and designated Zone C‑1. Located at 2295 & 2311 Diamond Hill Road, Cumberland, RI 02864.
Mr. McCoy then convened the Board of Appeal at 7:07 p.m. Mr. McCoy stated as a reminder, because the Board has not done this for a while, this is an appeal from an administrative decision. He stated that the Board is sitting in the shoes of the Building Official. He further stated that the Members of the Board are the finders of fact, unlike when the Board reviews a dimensional variance or something else. Mr. McCoy also stated that in this case any motion carries by a 3‑2 vote, not a 4‑1.
Attorney Scott Partington was present to represent JAK Realty on this appeal of the Building Official's decision.
Mr. Partington stated that, as the Board may already know from reviewing their packages, this appeal was filed in concert with a request for a dimensional variance as well because that was the original directive of the Town when there was an application to originally move the sign or to reconstruct the sign. Mr. Partington stated that, when he got involved, he reviewed what had transpired to date; and he thought that, given the circumstances, it certainly would not be beyond the pale to file an appeal, given what has transpired to date. Mr. Partington stated he would like to give a short rundown of this case, and then the client at that point could simply either confirm what he has said or add to it.
Mr. Partington stated that most of the Board Members are probably familiar with the property. He stated that there was a sign on the corner of Industrial Drive and Diamond Hill Road which had been there for in excess of 13 years. He stated that, sometime in early 2018, the extensive renovations to the 295 overpass began to be constructed; and the applicants, who are the owners of the property, were approached by DOT, and basically they were informed that the sign had to go. There was no negotiation; there was no back and forth. It had to go.
Mr. Mccoy then stated, just to clarify the record, that the Board is now looking at the document which is the old sign that used to be there, and
Mr. Partington stated that was correct and that the sign had to be taken down. He further stated that there is a letter included in the packet when, basically, DOT did give funds to the applicants in order to just simply relocate the sign from where it was. Mr. Partington stated that, at the time that the sign was involuntarily removed, it was nonconforming as far as the Town was concerned in two respects, the first being the height, which was 14 feet, which is in excess of the eight‑foot limit set by the ordinance; and, also, that it sat within four feet of a designated right‑of‑way. Mr. Partington further stated that when the sign was taken down, unfortunately, members or representatives of DOT, trying to be helpful, basically told the applicants that they could relocate the sign wherever they wanted to relocate it; and he explained to them since then that that really was not DOT's jurisdiction to make that call as that occurred; but what the applicants did was they proposed to simply relocate the sign at the most opportune place that would be again within setback requirements, setback‑wise.
Mr. Partington stated so there was the size element of it, being the height; and there was also the location of it with respect to the designated right‑of‑way.
Mr. Partington stated that he believed, from speaking to Mr. Ward and the solicitor's office, that the position was basically, although he was not really clear on why the size of it would not be grandfathered, that the movement of the sign to a different location on the site essentially negated any grandfather rights which would have been enjoyed as a result of the involuntary removal of the sign. He further stated that, just going by what the ordinance says, if a structure is involuntarily demolished, destroyed or damaged, it may be required or rebuilt to the same size and dimension as previously. Mr. McCoy repeated "repaired or rebuilt." Mr. Partington agreed. Mr. Partington stated that what he was basically saying is they were not given the choice of whether to remove the sign, and the sign came down. He further stated that what they did was they exercised their grandfather rights, to the extent that they proposed at the time a 14‑foot sign and also to place it close to the road, within the four‑foot setback where it was before.
After further brief discussion, Mr. Partington then presented a witness in support of this appeal.
Pauline Khabeaz then came forward, was sworn, and testified in support of this appeal. Mr. Partington asked Ms. Khabeaz, before she made any further comments, if she heard his opening remarks to the Chair and to the Zoning Board about the history, the nutshell version of the history of what occurred with respect to the subject sign since 2018, and if she was in essential agreement with what he had stated. Ms. Khabeaz answered yes, and then she gave a history of the sign as she understood it. Ms. Khabeaz stated that, on or about May 2005, JAK Realty, which is owned by her and her husband, purchased the building with the existing sign; and for more than 13 years that sign existed, and probably many years prior to that. She stated that, on or about January 2018, Rhode Island DOT notified them that they were planning construction on the sidewalk in front of their building which included taking of some of their land and removal of the sign. She stated that, despite the fact that they did not want to move their sign, the Rhode Island DOT required them to remove it. She stated this was not a self‑imposed hardship. She stated it was a demand made by the State of Rhode Island, and Rhode Island DOT determined that it was just inches over the sidewalk. She further stated that Rhode Island DOT assured them that the sign could be relocated on Diamond Hill Road; and, in a small payment that they made to them, that payment states that it is for relocation of the sign. She stated it was not for the payment of a sign, that it was for the relocation of the sign; and Rhode Island DOT officials assured them that they could relocate their sign, and they trusted what Rhode Island DOT said to them. Ms. Khabeaz stated that JAK is seeking the least relief possible, which is a sign that was just the same as the original. She stated that a sign to that scale for this size building is very important. She stated that denying them this sign in the original size has an economic consequence on their building, on their medical building, and the many other practices that will be here in this building.
Lengthy discussion ensued between the Board Members and Mr. Partington. After discussion,
Brad Ward, the Building Official, asked if he could make a statement. Mr. Ward was then sworn and testifed in this matter. Mr. Ward stated that he totally understood the applicant's hardship; but, when it really came down to it, his training in zoning is not to look for the intent of the Zoning Ordinance, but to look for the language of the Zoning Ordinance; and the language in Section B about moving is clear, and the fact is indisputable that they are moving the sign; and he believed that the demolition aspect in this instance, because it is involuntary, may have some weight; but the fact is that you can only rebuild it, a nonconforming use, if it is built in the exact same location, and that is an impossibility. Mr. Ward stated that he realized that zoning cannot possibly write an ordinance for every situation, and this is by far unique, but the fact of the matter is they are moving it; and, in his opinion, he had no other way to handle it than the way he did. Mr. Ward stated he had no previous information on the former sign that was taken down, since he was not working here at the time.
No one else came forward to speak or testify in this matter.
After lengthy hearing, Mr. LeBlanc made a motion to approve the appeal, based on the arguments that he has made that the applicant was forced into this position from no actions of its own. He stated that the intent of the ordinance in his view is to prevent overcrowding, congestion and unhealthy conditions; and this sign in this new spot does not contribute to any of these conditions; and moving, as discussed in the ordinance, in his view is implied that it is a voluntary moving, and this is an involuntary moving to a spot that is reasonable in his view and safe.
Mr. McGrath seconded the motion. Mr. McCoy then took a vote on the motion. Mr. McGrath and
Mr. LeBlanc voted in favor of the motion.
Mr. Craveiro, Mr. Chaput and Mr. McCoy voted against the motion. THE MOTION FAILED 2‑3.
Mr. McCoy asked if there were any further motions. Mr. Chaput then made a motion to sustain the appeal, based on what he believed was the correct interpretation of the ordinance by Mr. Ward; that he has done what he should do, and that, as to Subsection B on moving, that it was, in fact, a move of the sign and that, because the sign was moved, it was moved to a location chosen by the applicant. Therefore, the move is subject to the provisions of that subsection, and it has to conform to those provisions; so, the Board should sustain the Building Official and deny the appeal. Mr. Craveiro then seconded the motion. Mr. McCoy then took a vote on the motion. Mr. Craveiro, Mr. Chaput and Mr. McCoy voted in favor of the motion. Mr. McGrath and
Mr. LeBlanc voted against the motion.
THE MOTION TO SUSTAIN THE APPEAL WAS APPROVED 3‑2.
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Mr. McCoy then stated, if there was nothing further, he would take a motion to adjourn. Mr. McGrath then made a motion to adjourn. The motion was seconded by Mr. Chaput. Mr. McCoy then took a vote on the motion, and THE MOTION WAS APPROVED 5‑0.
(THE MEETING ADJOURNED AT 8:28 P.M.)
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Respectfully submitted,
Andrew J. D'Angelo
ANDREW J. D'ANGELO,
Court Reporter
(Signed Electronically)
I hereby certify the foregoing minutes to be a true and accurate interpretation, to the best my ability, of my stenographic notes taken at the Cumberland Zoning Board Meeting on October 14, 2020.
Andrew J. D'Angelo
ANDREW J. D'ANGELO,
Court Reporter
(Signed Electronically)