MINUTES OF THE CUMBERLAND ZONING BOARD MEETING
HELD VIA ONLINE ZOOM WEBINAR
ON WEDNESDAY, MAY 12, 2021 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
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 7:02 p.m., and all the Members of the Board listed above were present.
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Mr. McCoy made note that one of the matters that was on the agenda tonight, 21‑07, Sebastian Foppema, at 13 Cook Road, was not supposed to be on the agenda. Mr. McCoy stated that it still needs Planning Board review, so that is going to happen by the Planning Board at their meeting later this month; and then this Board will have it at the June meeting which is June 9th, and the regular time is 7:00 p.m. Mr. McCoy stated this would be the only notice the Board would give of that. Mr. McCoy stated to Mr. Skwirz that he did not believe it would have to be advertised again, and Mr. Skwirz stated that was correct. Mr. McCoy stated that this matter would be on the June 9 agenda as a new matter because it has not even been heard yet.
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Mr. McCoy stated that the Board has some minutes that were in the packet from the last meeting on April 14th and asked for a motion to accept the minutes, unless anyone had any comments or changes. Mr. McGrath then made a motion to accept the minutes of April 14. Mr. Elgin seconded the motion. Mr. McCoy then took a vote on the motion, and THE MOTION WAS APPROVED UNANIMOUSLY.
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Attorney Scott Partington came forward representing Paula Malloy in this matter.
Mr. Partington stated that there is an attorney involved for one of the abutters, Phil Koutsogiane. Mr. Partington stated that he spoke with Mr. Koutsogiane, and he has graciously agreed to move this matter, in light of the length of the agenda. Mr. Partington stated there was also another person who is an abutter from down the road, a Mr. Malloy. Mr. Partington stated he did not have direct contact information for him, so he called his brother, who Mr. Partington knew; and the brother was going to advise Mr. Malloy. Mr. Partington stated they were looking for the June meeting for this matter.
Mr. McCoy asked if everyone who has an interest had been notified and if everyone is in agreement to move it to June, and Mr. Partington answered yes, as far as the people who spoke that he was aware of.
Mr. McCoy then stated that the Board has a request by the applicant, apparently assented to by the abutters and objectors, to move 21‑02, Paula Malloy, to the June 9th calendar, unless there is any response or opposition by the Board.
Mr. McCoy then asked for a motion to approve that request. Mr. LeBlanc so moved the motion to move this matter to the Meeting of June 9, and the motion was seconded by Mr. McGrath. Mr. McCoy then took a vote on the motion, and THE MOTION WAS APPROVED UNANIMOUSLY.
Mr. McCoy stated this will be on the June 9th calendar, and this will be the only notice of that; and this will be a continued matter to be taken up first on June 9th.
Attorney Scott Partington came forward to represent Mr. and Mrs. Silva on this request for dimensional variance. Mr. Partington stated that this property is serviced by both sewer and water. He stated that the intent of the applicants is to subdivide the property into one additional residential lot. He stated there is a house on it now, and under normal conditions there would be sufficient minimum lot area in a Residential‑1 to accommodate two houses; however, due to a situation involving accumulation of wetland on what would end up being both of the lots, there was a request made to receive a waiver from the Planning Board in accordance with their minor subdivision request, as well as a variance from the Zoning Board's rules with respect to buildable lot calculations, the fresh water wetlands which had been flagged.
Mr. Partington stated that on proposed Lot A they are requesting relief in the amount of 1,570 square feet, and on Lot B it would be 6,346 square feet. He stated they had extensive discussions at the Planning Board on this matter, and several of the neighbors were present and talked about it.
Mr. Partington stated that this is the culmination of a situation which began some years ago with Overhill, initially; and a pipe was run under several neighbors' lots, Ms. Laverty's lot, Mr. Hogan's lot, and the pipe ended at the property line of the Silvas. He stated that, since that time, there have been discharges of water onto the property, which basically have created a situation not of their doing. He further stated that the property may have had some wetness in the past; but it has been continuing accumulating since this pipe, and now they have gotten into a full blown wetland situation that is the jurisdiction of DEM and would be excluded from the buildable lot calculations.
In support of this application, Mr. Partington presented, as witnesses in this matter, Maria Silva, one of the applicants in this matter. He also presented Richard Bessette, Jr., currently employed by the Northeast Building Company, who testifed that he was contacted by the Silvas to build an additional home on this minor subdivision, and he also testifed as to the drainage in and around the property.
Next, Mr. Partington presented Michael Darveau, of Darveau Land Surveying, as a witness. Mr. Darveau testified he is a professional land surveyor, and he stated his company was hired to survey the property, determine the site conditions and to see if there was sufficient area, space, and conditions that would allow for a second lot and a second dwelling to be built on the property. He stated the property has just 52,400 square feet total area, and it has sewer and water. Mr. Darveau stated that, being that it is located in an R‑1 zone with sewer and water, 25,000 square feet is the minimum required. He stated it fronts on three streets, and it obviously has sufficient frontage to create it.
Mr. Darveau stated that the one item that it does not meet is because of a small wetland area located adjacent to Roland Street on the property. He further stated that the wetland area reduces the the buildable size of both lots to under the 25,000 square feet, so they have proposed two lots divided north/south between Roland Street and Overhill Road as a new property line. Mr. Darveau stated they have shown on their preliminary minor subdivision site plans the location of the existing dwelling, the location of all the existing features and improvements on and abutting the site; and they have proposed a new dwelling with public water and sewer and driveway and so forth.
After Mr. Partington concluded the presentation of his witnesses, Mr. Skwirz stated there was a person with a hand raised in the audience.
Robert Fahey, of 74 Spring Street, Cumberland, was brought into the Zoom Webinar. Mr. Fahey was sworn and testified that he was not an abutter, but he is a citizen and resident of Cumberland for 15 years, and he just wanted to comment because he has been listening in on this.
Mr. Fahey testified that the reason why he is commenting is he has a similar type situation where there is a pipe under his property. He stated there is an easement, and there is a dry well to kind of try to solve this that the Town had put in; and it does help with the water if there is a dry well connection, but it does not solve the issue because in heavy rain events the dry well gets overrun, and the water just kind of exceeds the capacity of the dry well. He stated he was just kind of bringing that forward as part of the discussion, if that was going to be a solution for this issue.
After further discussion, Mr. McCoy asked if anyone was willing to make a motion. Mr. Chaput then made a motion to grant the variances they are looking for. He stated it is kind of unique to grant a variance to a lot that does not really exist yet; but, for the lot that they refer to as Lot A, a variance of 1,570 square feet and for Lot B of 6,346 square feet.
Mr. Chaput stated this is not a situation that was caused by the applicant; and he stated he would agree with Mr. Partington that, in the interest of brevity and saving time, the Board could use the discussion that he has in Exhibit B where he carefully talks about each of the standards and how they apply to this case. Mr. Chaput stated he would agree to use that discussion and would incorporate those standards by reference, and he believed the Board should grant the variance. Mr. McGrath then seconded the motion. Mr. McCoy then took a vote on the motion. Mr. Craveiro, Mr. Chaput, Mr. McGrath, Mr. LeBlanc and Mr. McCoy all voted in favor of the motion. THE MOTION WAS APPROVED 5‑0.
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David Dugre and Parmomita Ghosh were brought into the Zoom Webinar. At the outset, Mr. Chaput stated that he did not know if it makes any difference; but, as a point of reference, he stated that the agenda reads that it is a rear yard setback, and the application is actually relief from the side yard, not from the rear yard. Mr. McCoy asked
Mr. Skwirz if he could see a problem with that.
Mr. McCoy stated that it does identify as a chicken coop, and he thought that is certainly helpful.
Mr. Skwirz stated he thought probably the best thing to do, to avoid any notice issue, is that the matter might need to be re‑noticed stating side yard setback instead of rear yard.
Mr. McCoy stated there are a lot of people here for that tonight, and the Board also has other matters which would allow the Board to get to them.
Mr. McCoy stated that in these situations it comes down also to the applicant and what kind of risk they want to take by going forward because they are the ones who it will certainly affect if the notice was improper. Mr. McCoy stated that he appreciated the advice, and he would throw it back to the applicants as to whether they want, out of an abundance of caution, to re‑notice this for next month as a side yard setback, which is what it is.
Both of the applicants, David Dugre and Paromita Ghosh were then sworn in as witnesses in this matter. After being sworn, Mr. Dugre stated that they would take into account the recommendation of the Board. He stated that it is from the side abutting properties that they are seeking the dimensional variance for.
Mr. McCoy then asked Mr. Dugre if he understood what he was saying as they would like to continue this to next month so they would not have any issues with notice, and Mr. Dugre answered yes.
Mr. McCoy then stated that there is a request from the applicants to continue this one month to the June 9th meeting, due to a potential issue with notice, and he asked if there is a motion to grant that request.
Mr. Chaput then made a motion grant the request to continue this matter to next month. Mr. Craveiro seconded the motion. Discussion then ensued on the motion. After discussion, Mr. McCoy then took a vote on the motion. Mr. Chaput, Mr. McGrath,
Mr. Craveiro, Mr. LeBlanc and Mr. McCoy all voted in favor of the motion. THE MOTION WAS APPROVED 5‑0.
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Earlier in the meeting, Mr. Chaput stated that he would be recusing himself from sitting on this matter, and he removed himself from the Zoom Webinar for this hearing.
Attorney Scott Partington came forward to represent the applicant in this matter.
Mr. Partington presented as his first witness
Jason Macari. Mr. Macari was sworn and testified under questioning by Mr. Partington that he resides at 3100 Diamond Hill Road, Cumberland, Rhode Island, and he is the applicant in the matter before the Zoning Board at this time, and the application that is before the Board concerns his residence.
Mr. Macari stated they are looking to construct a solar array on part of the land, roughly a half an acre of solar array. He stated there are two portions of it; that there is a 250‑kilowatt size portion that is part of the REG program with National Grid which feeds back into the electric grid; and then there is a second portion of about 110 kilowatts, approximately, that would be going to the house; and it would be a net metering situation where it feeds the house; and then, if it is not using it, it feeds it back to the National Grid.
Further lengthy questioning by Mr. Partington ensued, where Mr. Macari described in more detail the layout of the project on his property.
As his next witness, Mr. Partington presented Steven Ellicott, who came forward, was sworn, and testified that he was employed by a company by the name of Infewsion. Under questioning by Mr. Partington, he stated that he is one of two principals in the company and that the company has been in existence for just under six years; and the business that they conduct is renewable energy and also, predominantly and almost exclusively, solar systems. Mr. Ellicott also stated that Infewsion has been in the business for under just under six years, but he has been in the industry with other companies for just under 15 years.
Mr. Ellicott further testified that he has been designing and implementing solar systems since about 2007, and he has been involved with well over a hundred million dollars worth of these types of projects, everything from projects in the San Joaquin Valley in California, to projects in Arizona, Nevada, Massachusetts, Vermont, New York, Rhode Island, etcetera. He stated it is his core business, and that would encompass rooftop systems, ground mount systems, carport systems, which he was doing back in 2008 and 2009 in California which are now becoming very popular in the East Coast. Mr. Ellicott stated that his company was hired as the engineer in connection with the application before the Board this evening. He further stated that they have been putting up rooftop systems for Jason's properties throughout Rhode Island over the course of the past two to three years.
Under further questioning by Mr. Partington,
Mr. Ellicott went into further detail about the design and engineering of this project.
After Mr. Partington completed his presentation, Mr. McCoy asked Mr. Skwirz if there was anyone else present who wished to speak on this matter.
Mr. Skwirz stated that there were nine people in the queue, and none have raised their hands. No one else came forward to speak in this matter.
After further discussion, Mr. McGrath made a motion to approve the request and that the Board understands that it is granted to the subject land or structure; that it is not doing any hardship to any neighbors; and it is not going against the Master Plan and/or the Comprehensive Plan. Mr. McCoy stated that the Board would be approving two things, a Special Use Permit and a Dimensional Variance, as requested, and stated to Mr. McGrath he could do whichever one he wanted to do first.
Mr. McGrath then stated that the Special Use is specifically authorized by the Ordinance and is setting forth the exact subsection of the Ordinance containing the authorization. Mr. McGrath stated that the Special Use meets all the criteria set forth in the Subsection of the Ordinance, and the granting of this Use Permit will not alter the general character of the surrounding area or impair the intent or the purpose of the Ordinance. Mr. McGrath stated that, by the preponderance of the evidence, they have stated their case and proven it, and the Board should pass the Special Use Permit.
Mr. LeBlanc then seconded the motion. Mr. McCoy stated that the only thing that he would add is he would incorporate the findings of the Planning Department and also, as noted by Mr. Partington, Exhibits A and B of the application where he sets forth the requirements. Mr. McGrath so moved that to be added to the motion.
Mr. McCoy stated that the Board has a motion and second, and the Board would be voting on the motion for the granting of the Special Use Permit pursuant to 18‑3 to allow a ground‑mounted medium solar array on this property. Mr. McCoy then took a vote on the motion. Mr. McGrath, Mr. Elgin, Mr. Craveiro,
Mr. LeBlanc and Mr. McCoy all voted in favor of the motion. THE MOTION WAS APPROVED 5‑0. Mr. McCoy stated that the Special Use Permit is granted for the ground‑mounted medium solar array as proposed.
Mr. Craveiro then made a motion to approve the dimensional variance.
As findings of fact, Mr. Craveiro stated the following:
In granting the dimensional variance, the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land and not to the general characteristics of the surrounding area and not due to a physical or economic disability of the applicant.
In granting of the variance, that said hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain.
The granting of the requested variance will not alter the general characteristics of the surrounding area or impair the intent or purpose of this Zoning Ordinance or the Town of Cumberland Comprehensive Plan.
The relief to be granted is the least relief necessary.
Mr. McCoy stated that the motion is to grant the 10‑foot dimensional variance requirement to the north and east side of the vegetative buffer under Section 18‑8, and he asked for a second to the motion.
Mr. McGrath then seconded the motion. Mr. McGrath, Mr. Elgin, Mr. Craveiro, Mr. LeBlanc and Mr. McCoy all voted in favor of the motion. THE MOTION WAS APPROVED 5‑0.
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Attorney Scott Partington came forward to represent the applicant in this matter.
Mr. Partington stated that this is kind of an unusual piece of property, in that it has has three front yards. He stated there are two separate lots which the plan is to merge together to construct a single‑family home. He stated that he confirmed with Mr. Ward that they agree that there are, in essence, three front yards and one rear yard. Mr. Partington stated that there is Diamond Hill Road, Cherokee Avenue and Lenape Street, which are paper streets which have basically necessitated, for the construction of the single‑family home, the dimensional variances that they have set forth.
Mr. Partington stated that for the minimum front yards, off Lenape Street they have a 25‑foot minimum front yard requirement, and they have proposed property dimensions at 10, so they are seeking 15 feet there. He stated there is also a minimum rear yard of 25 feet for the one rear yard, and there is also a 15‑foot request there for the rear yard. Mr. Partington stated these are preexisting lots of record, and the Town of Cumberland is one of the few muncipalities that does not have a involuntary merger provision; however, these lots are being merged voluntarily to make a better size lot.
Mr. Partington stated there are some wetlands on the lot, and there is an insignificant alteration permit granted to the developer, Brian Macari, on March 31st, 2020 for construction of a single‑family home which should have been in the Board's packet. Mr. McCoy stated the Board does have a plot plan or a site plan showing the proposed location of the house, and also a survey.
Mr. Partington then presented as a witness
Brian G. Macari. Mr. Macari was brought into the Zoom Webinar, was sworn, and testified under questioning by Mr. Partington that he is employed at his company, Evergreen Homes, Incorporated, and they develop land and build homes; and he is the applicant in this case. Mr. Partington asked if his application going forward this evening is being done with the knowledge and consent of the representatives of the Gallagher Trust, and he stated that was correct.
Under further lengthy questioning by Mr. Partington, Mr. Macari went into further great detail about the history and layout of this project.
After Mr. Partington concluded his presentation, Mr. McCoy asked Mr. Skwirz if there was anyone in the queue who wished to speak, and Mr. Skwirz stated there was one person; and Lori Conolle‑Maxwell, of 1555 Diamond Hill Road, Cumberland, was brought forward into the Zoom Webinar. Ms. Conolle‑Maxwell testified against the granting of this application.
Then Jennifer Ferreira, of 1529 Diamond Hill Road, Cumberland, was brought into the Zoom Webinar.
Ms. Ferreira stated that, since what is being talked about is allowing the house to be built closer than normally would be allowed, she wanted to clarify the amount of feet that will be between the property and the neighbors on each side. Her questions were answered, and she stated that it is hard to even imagine a house fitting there within 40 or 50 feet between the properties; and she stated she did not understand how that can even be possible because it is a very small, tight lot as it is.
Mr. Partington stated that it is, like many of the lots in that area. He stated they were designed way back when, and they had a long, narrow element to them; and the problem is that Cumberland does not have an involuntary merger provision which would require these lots to be merged by common owners, but they are going to do it anyway because it makes more sense than putting it on a 5,000 square foot postage stamp lot.
After further discussion, no one else came forward to speak in this matter.
After lengthy hearing, Mr. Chaput made a motion to grant dimensional variances for the combined
Lots 260 and 277 of Assessor's Plat 18, and it would be a 15‑foot front yard variance and a 15‑foot rear yard variance from the roads that have been spoken of at some length.
Mr. Chaput stated as findings of fact the following:
The restriction from which they seek relief is due to the unique characteristics of the land, which is all those front yards. He stated it was mentioned that, if they were just side yards, they would not be here at all. There is still 25 feet from Diamond Hill Road, which most people would think of as a front yard; but it is unusual, and so they do need relief from it.
The hardship is not the result of a prior action of the applicant; and, although they will probably be getting some financial gain for it, really what they are asking for is the right to build a home on a buildable lot. It is a preexisting nonconforming lot, and they have a right to build a home there.
The granting will not alter the general characteristics of the surrounding area. The house and the size of the combined lot is similar to those in the area, and the house is going to fit in generally with the other types of homes in that particular area.
The relief is the least relief necessary because there is only a certain spot on the lot where the house could realistically be based, and that is where they are planning to put it.
If the application were denied, the hardship would be more than a mere inconvenience. They would not be able to build on the lot which they really have a right to do.
Mr. LeBlanc then seconded the motion. After further discussion, Mr. McCoy took a vote on the motion. Mr. McGrath, Mr. Craveiro, Mr. Chaput, Mr. LeBlanc and Mr. McCoy all voted in favor of the motion. THE MOTION WAS APPROVED 5‑0.
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Mr. McCoy then asked for a motion to adjourn. Mr. LeBlanc made a motion to adjourn. The motion was seconded by Mr. Elgin. Mr. McCoy stated he would assume everyone was in favor of the motion.
THE MOTION WAS APPROVED UNANIMOUSLY.
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(THE MEETING ADJOURNED AT 10:33 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 of my ability, of my stenographic notes taken at the Cumberland Zoning Board Meeting on May 12, 2021.
Andrew J. D'Angelo
ANDREW J. D'ANGELO,
Court Reporter
(Signed Electronically)