EXETER ZONING BOARD OF REVIEW MINUTES OF THURSDAY, APRIL 14, 2022

Minutes Approved: May 12, 2022

675 Ten Rod Road

Exeter, RI 02822

401-294-2592

A Regular Meeting of the Exeter Zoning Board of Review was held on Thursday, April 14, 2022 at 7:30 pm, in person with no remote component, at the Town Hall Offices, 675 Ten Rod Road, Exeter, RI.

Members present:     Richard Booth, Tom McMillan, Richard Quattromani, Loren Andrews and Susan

Littlefield

Members absent:       Tim Robertson and Susan Franco-Towell Others present:           Peter Ruggiero, Solicitor and Dixie Foisy, Clerk Meeting called to order at 7:30 pm by Chairman Richard Booth

Chairman Booth requested a motion to open the public hearing.  Motion made by Tom McMillan;

seconded by Loren Andrews.  Voted all in favor. MOTION PASSED.

I.       NEW BUSINESS:

A.   The petition of Harry Hawker III, Applicant and Owner of property located at 0 West Shore Road, Exeter, RI; Zoned RE-2, and further designated as Assessor’s Plat 84, Block 9, Lot 19; a request for dimensional relief under Zoning Ordinance Article II Section 2.4.2.2 (minimum street frontage), 2.4.2.4 (front setback), 2.4.2.6 (side setback), and 2.4.2.7 (rear setback) for a proposed single-family dwelling.

Chairman Richard Booth introduced the Hawker petition. Steven H. Surdut, Esq., from the Law Offices of Sean C. Donohue, 43 Broad Street, Westerly, RI, was present representing Harry Hawker, of West Shore Road.   Chairman Booth asked if the application that was previously recorded on January 26, 2011 had changed in any way?  Mr. Surdut indicated that the current application had not changed at all. That it was exactly the same request as the previously approved application. Chairman Richard Booth asked why a new application was in front of them tonight.  Attorney  Surdut  indicated  that  due  to  a  number  of  unforeseen circumstances  the previous approval had expired. Mr. Surdut stated that Mr. Hawker is a long-time resident of Exeter, and that he has owned the West Shore Road property for more than 20 years. That Mr. Hawker would like to build a two-bedroom Chalet Style, post and beam home on the Boone Lake property.

Board member Tom McMillan asked Mr. Surdut about the relief requested and questioned the numbers  reflected  on  the  zoning  matrix  chart.  Mr. Surdut  indicated  that  the  drawing  was accurate.   Mr. McMillan reviewed the drawing numbers with Mr. Surdut.   Mr. McMillan contended that the numbers are not accurate. Attorney Surdut stated that he had applied the exact same numbers from the previous application, that had been approved by Zoning, to the current application in front the Board tonight.

Chairman Booth asked if the abutters surrounding Mr. Hawker’s property had been notified? Mr. Surdut indicated that yes, certified notices had been sent out, and that Mr. Hawker had made personal visits to his neighbors on Boone Lake. Mr. Surdut indicated that for the area the lot sizes are all about the same size as the lot Mr. Hawker would like to build on. He did indicate that over time, some of the lots have been combined into larger lot sizes.  Chairman Booth asked if the planned build could be done on a smaller scale? Mr. Surdut noted that the layout being requested is designed into the unique sloop of the landscape and the applicant doesn’t believe it can be reduced in any way without comprising his living space.

Chairman Booth inquired of Solicitor Peter Ruggiero about the acreage requirements of the Town. Mr. Ruggiero noted that on the zoning certificate it is indicated as an undersized lot, but that it is a legal preexisting lot of record.  That they are not asking for any relief and are not changing the lot in any way. Attorney Ruggiero indicated that according to the zoning code they can request to build a home on the land. Mr. Ruggiero did, however, ask that the applicant confirm the numbers of dimensional relief being sort. That he, too, felt that there were discrepancies between the numbers on the plan and the numbers on the application and they needed to be corrected. Mr. Ruggiero indicated that if the information on the plan is not accurate to the relief, that the correct relief should be marked on the plan, initialed and signed by the applicant so that whenever a building permit is sort, in the future, there is no question on the relief that was granted.

Chairman Booth asked if the applicant’s presentation was complete? Mr. Surdut indicated that

yes, it was, but would like an opportunity to make a closing statement.

PUBLIC COMMENT:

Clifford Hackney of 208 West Shore Drive was present and sworn in. Mr. Hackney indicated that he was present to inform the zoning board that Mr. Hawker had dug up and removed a certified boundary marker without informing Mr. Hackney of its removal. Chairman Booth indicated that the Zoning Board did not have any jurisdiction in this matter and that he would advise Mr. Hackney to employ a surveyor if the property lines were in question. Mr. Hackney indicated that no, they weren’t, but that he wanted the removal of the boundary marker on the record.

David Michael Gallagher of 225 West Shore Drive was present and sworn in.   Mr. Gallagher indicated that he has lived directly across from this West Shore Drive lot for the past 39 years and he does not have a problem with Mr. Hawker’s proposed plan to build a 2-bedroom home on this property.

Jeffrey Belmonte, 238 West Shore Drive was present and sworn in. Mr. Belmonte indicated that he has known Mr. Hawker and his family for the past 58 years. He felt strongly that anything Mr. Hawker builds  will certainly improve the aesthetics of the Boone Lake area. Mr. Belmonte indicated that the previous home Mr. Hawker had on the lake sold as one of the highest priced homes in the area.

Attorney Timothy Robenhymer was present on behalf of the Martha Dixon Trust specifically Mr. James Woods, Trustee, and stated he was present to object to the proposed application. He was asked on what basis did he object and he stated on multiple bases. Exhibit A: He objected to the notice that was received by his client in California, sent out on March 29, 2022. Exhibit B: A memo from Simona Georgescu, dated Thursday, April 14, 2022, Subject: Fwd: You got CERTIFIED MAIL! WOODS TRUSTEE from Surdut Law. He noted that it was dated as received on April 02, 2022 at 10:53:50 AM PDT, not the 14 days before the hearing date. Solicitor Peter Ruggiero noted that the zoning board ordinance states that it needs to be mailed 14 days prior to the hearing date, and it had actually been 16 days. Attorney Robenhymer referenced Zoning Board ordinance Sec.

3.5 Land nonconforming by area. Subsection 3.5.3. Subdivision of merged lots, (B). and 3.5.4. Residential use of nonconforming lots, (A), (C).

Chairman Booth asked Solicitor Ruggiero for his legal opinion on the above ordinances. Solicitor Ruggiero indicated that the Board can approve the building of the house on the lot and indicated that yes, that under Section A the applicant can come before the board and ask for relief. He indicated that there are required setbacks, and the board has the right to grant relief for the setbacks. Attorney Ruggiero stated that the board has jurisdiction and can rule on whether or not the applicant has met all the requirements for relief. Mr. Robenhymer respectfully disagreed.

Mr. Robenhymer noted that the client’s attorney was asked if the applicant was asking for the least amount of relief necessary. He felt that there was no expert testimony on how this project would impact the surrounding area. His client’s concerns included drainage, water run-off, change of topography, the impact on the ISDS on his client’s well.  (Standards 45.24.41) Chairman Booth indicated that these were questions that needed or should be answered by DEM. Attorney Robenhymer disagreed, and felt that these questions should be answered by the members of the Zoning Board.

Attorney Robenhymer stated that the applicant is not asking for the least amount of relief. He referenced both Exhibit C and Exhibit D: Exhibit C is a photocopy of a land survey completed by Peter S., PLS #1814, dated 10-15-2008 and Exhibit D is a photocopy of a 2-page land survey by Coventry Survey Co, Inc., signed by John Rockwell dated, March 7, 2013. Attorney Robenhymer reviewed the layouts in Exhibits C and D and indicated that the actual 2-bedroom house that is being proposed was 723sq.ft. per floor accounting for his figure of 1,400 square feet. Attorney Surdut objected to these numbers stating that there was no documentation to the size of either floor on these layouts. Chairman Booth asked Mr. Robenhymer if he would be withdrawing his statement and he indicated he was not. He stated that he simply took from the plans the length and width and multiplied the numbers to get the square footage.  Board member Tom McMillan asked if he had taken into consideration the triangular section of the proposed home. Mr. Surdut objected to the numbers that Mr. Robenhymer was using to coming up with the square footage and noted that one of the floors was significantly smaller than the other.

Mr. Robenhymer showed Exhibit E, a photograph of a dock, a firepit and a couple of lawn chairs taken in November 2021 that he indicated were on the applicant’s lot. He stated that this dock was new and placed right up against his client’s property line. Mr. McMillan asked to clarify the location in question. Mr. Robenhymer indicated it was the property owned by the Martha Dixon Trust specifically Mr. James Woods, Trustee at 222 West Shore Drive. Attorney Surdut objected to the photograph coming in as a full exhibit, noting the truth and accuracy, that its truth and veracity was in question. Chairman Booth asked if this was the applicant’s dock? Mr. Hawker was asked if this was indeed his dock?   Mr. Hawker replied that it was his dock. Mr. Surdut removed his objection. Questions regarding the dock continued and Chairman Booth asked if Attorney Robenhymer would like to question Mr. Hawker, Mr. Hawker stepped forward and was sworn in.

Attorney Robenhymer handed Mr. Hawker Exhibit E and asked him what was depicted in the photograph. Mr. Hawker indicated it was his dock and that it had been installed two years ago. Discussion insured regarding the location and dimensions of the dock. Mr. Surdut objected to the line of questioning, stating it was far outside the lines of this  zoning application. Attorney Robenhymer asked that Mr. Hawker be considered a hostile witness. Questioning continued. Attorney Robenhymer asked the Board to deny Mr. Hawker’s application for the 2-bedroom proposed home, based on the following codes 3.1.5 /3.5.4.C.

Chairman Booth asked Mr. Robenhymer what was his definition of vacant. Mr. Robenhymer replied, “There’s no building on it.” Mr. Booth asked to confirm his definition and asked if he considered a dock a structure? Mr. Robenhymer said he did not consider the dock to be a structure. Chairman Booth then asked if anyone was present who wanted to speak in favor of, or opposed to, this application.   Mr. Jeffrey Belmonte stepped forward and stated that he was formally on the Board of Governors of Boone Lake and his neighbor had asked him about putting up a dock. Mr. Robenhymer objected and stated that Mr. Belmonte’s statement was hearsay. Mr. Belmonte restated his response and suggested that if Mr. Robenhymer were to contact DEM with regard to their regulations regarding the structure of docks on Boone Lake, that he would be redirected to the Boone Lake Dam Management, because Boone Lake is a private pond.

Mr. Steven Surdut, indicated that his “brother”  (Attorney Robenhymer) had referenced the appropriate statute, 3.5, that gives his client, Mr. Hawker, the right to construct a single-family residence on the premises. Chairman Booth asked, 3.5, which one? Mr. Surdut said, “The entirety of it, in that primarily #4 in that my client can build a home on the property, even though it is an undersized lot of record.” That you can’t read “C” without reading the header of number 4. That his “brother’s” interpretation was designed not to read this statue in its entirety. Furthermore, that my client was here seeking a dimensional variance not a use variance and went on to explain that his client had meet those dimensional standards. He stated that it’s also important to note, that the primary objector owns three separate lots, adjacent to my client. That they have taken great pains to preserve those three lots as separate, even paying taxes at a building lot rate. Clearly showing that they recognize the right to build on each of these three lots. Mr. Robenhymer objected and asked how any of this information was relevant, stating it had “zero relevancy.” Mr. Surdut concluded his argument stating statute 3-E.C.-1, 2, 3 and 4.

Mr.  Robenhymer  reviewed  RI  State  Law  45-24-41,  Subparagraph  E,  sub,  subparagraph  1.

…nonconforming use of neighboring land or structures in the same district and permitted use of land or structure in adjacent districts shall not be considered in granting a use clearance. He noted that what his client does with his property, under state law, should not be considered when deciding if this application should be granted.

Chairman Richard Booth asked if there was any more public comment. Hearing none he asked for a motion to close the public hearing. Board member Tom McMillan made the motion and Richard Quattromani seconded the motion. All in favor, and the Motion passed.

Chairman Booth noted that there was a lot of varied testimony to review and sort through. He asked the Board members to review the dimensions. He asked Tom McMillan about his question regarding the drawing included within their individual packages from John Rockwell, dated March

7, 2013. Mr. McMillian noted that all of the information, on the maps, appeared to be identical-- on the lot, the building and so on. He did not see any new dimensions, different dimension, or a different layout, he stated that the one Mr. Robenhymer furnished in their package is relevant. Mr. Booth stated that it matched their Exhibit D. (Time recording: 1:03:11) Mr. McMillian stated that his concerns are with the application. That the page entitled Zoning Characteristics Matrix and below Deviation from Required Standards has incorrect information and that the board has every right to expect accurate information. Mr. McMillan reviewed the applicant’s numbers under the Deviation from Require Standards section and found most of the numbers to be incorrect. He stated that he didn’t feel it should be the responsibility of the Zoning Board to correct these mistakes. That the applicant should be required to come back to the Board with correct figures. What we approve is what you have to build to, it must be accurate, this is your responsibility.

Board member Susan Littlefield made a motion for the applicant to return with a complete and accurate application. Tom McMillan seconded the motion. Solicitor Peter Ruggiero suggested that the Board consider reopening the Public Hearing. Board member Susan Littlefield amended the motion to reopen the public hearing. Loren Andrews seconded the motion, all in favor. The amended motion passed.

Attorney Surdut asked for information on how he should be correcting and updating the application for his client. Attorney Robenhymer asked that notices be sent out if the drawings and dimensions are going to change and that they are sent out 14 days in advance.

Hal Morgan, Exeter’s Zoning Official, was present and sworn in. Mr. Morgan stated that he doesn’t believe, per his current zoning certificate, that he (the applicant) needs frontage relief or area relief, those are preexisting, nonconforming areas. The applicant only needs setbacks front, both sides and rear. He stated that the applicant noted area and frontage information, but that is not what is on the current zoning certificate. Mr. Morgan noted that the applicant is not required to come back with those dimensions. He also noted that the footprint is 950 sq. ft., about the size of an in-law plus a closet. Mr. Morgan stated, “This is not an extravagant structure by Town standards.”

Chairman Booth asked for a motion. Board member Susan Littlefield made the motion to continue the application to the next meeting (May 12, 2022) Chairman Booth added that the applicant would return with corrected numbers for relief sort. Tom McMillan seconded the motion.  All in favor. The motion passed.

B.   The petition of Nicole Rossignol, Applicant and Owner of property located at 20 Mockingbird Drive, Exeter, RI; Zoned RU-4, and further designated as Assessor’s Plat 51, Block 6, Lot 5; a request for dimensional relief under Zoning Ordinance Article II Section 2.4.2.7 (rear setback) for a proposed above-ground swimming pool.

Nicole Rossignol, 20 Mockingbird Drive, was present and sworn in.  Ms. Rossignol stated that she was seeking rear setback relief for a proposed swimming pool.  She indicated that the ordinance required 50 feet, they have 15 feet, a 35-foot difference. Chairman Booth stated that it is an above-ground, 18-foot round pool. Looking at the application he noted that the pool is sitting on top of their 12x12 deck with a 9-foot difference between the deck and the pool.  He asked if the pool could be placed closer to the deck. Ms. Rossignol stated that they were unable to place the pool any closer to the deck.

Chairman Booth inquired about the pool filter referencing Zoning Ordinance (4.4.1C) When a filter system and motor is to be used, a site plan showing the location of the pool and filtering system shall be submitted. He noted that the filter was 24’ from the rear property and 83’ from the right side.