EXETER ZONING BOARD OF REVIEW MINUTES OF THURSDAY, JUNE 9, 2022

Minutes Approved: September 8, 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, June 9, 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, Tim Robertson, Loren Andrews and Susan Littlefield

Members absent:           Richard Quattromani and Susan Franco-Towell Others present:              Peter Ruggiero, Solicitor and Dixie Foisy, Clerk Meeting called to order at 7:44 pm by Chairman Richard Booth

Chairman Booth requested a motion to open the public hearing.  Motion made by Tom McMillian; seconded by Loren Andrews. Voted all in favor. MOTION PASSED.

I.       OLD BUSINESS:

A.   The continued petition of Harry Hawker III, Applicant and Owner of property located at 0 West

Shore Drive, 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.

Prior to hearing the continued petition of Harry Hawker, III, Chairman Booth announced that the opposing attorney for abutter James H. Woods, Timothy J. Robenhymer, had been diagnosed with COVID-19 and in accordance with CDC guidelines and by State law Mr. Robenhymer could not be present for the hearing. Mr. Booth feels that they should be allowed their due process and asked the Zoning board members to consider a continuance.

Steven H. Surdut, Esq., representing Harry Hawker, III, was recognized by Chairman Booth. Attorney Surdut felt that since the Zoning Board would not be hearing any additional testimony regarding the Hawker petition, that the Board was well within their rights to move forward, based on previous testimony and evidence that has been submitted. Mr. Surdut also noted that he offered to provide zoom capability to Mr. Robenhymer and/or the option for him to submit written documentation and had received no response from counsel. Mr. Surdut also noted that not once had Mr. Robenhymer reached out to him during any of the proceedings for this petition.

Mr. Surdut deferred the decision to the Board but did ask if they were inclined to continue this petition that a special meeting be held in short order.

Chairman Booth stated that after conferring with Solicitor Peter Ruggiero, his recommendation to the Board would be to continue this petition one more time. He apologized to Mr. Hawker for having to postpone this process. Mr. Hawker noted that this is a continuing hardship for him and every day that passes his costs increase. Chairman Booth stated that he would make a motion to postpone the meeting and hold a special meeting at a later date.

Tim Robertson made a motion to continue the petition of Harry Hawker III, Applicant and Owner of property located at 0 West Shore Drive, 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, be continued to the July meeting or earlier at a special meeting.

Chairman Booth asked that correspondence received from Timothy J. Robenhymer, counsel for abutter, James H. Woods be added to the record as Exhibit A. Then noted the motion on the floor and asked for a second. Loren Andrews seconded the motion. All in favor 5-0. The motion passed.

Discussion ensured around scheduling the next meeting for the Hawker petition and a motion was made to continue the petition to Wednesday, June 15, 2022, to be held at the Town Hall. Seconded by Loren Andrews. All in favor 5-0. The motion passed.

II.       NEW BUSINESS:

A.   Petition of Lisa Mumford, Applicant and Owner of property located at 269 Liberty Road, Exeter, RI; Zoned RU-4, and further designated as Assessor’s Plat 72, Block 6, Lot 4; a request for special use permit under Zoning Ordinance Appendix A, Section 1.3.D.A.1; and dimensional variances under Zoning Ordinance Article II, for Parcel A: Section 2.4.2.1 (lot area) 2.4.2.2 (minimum street frontage), 2.4.2.4 (front setback) and for Parcel B: Section 2.4.2.1 (lot area),

2.4.2.2 (minimum street frontage), 2.4.2.6 (side setback) seeking a proposed two lot subdivision of a single lot containing two preexisting legally nonconforming dwellings.

Chairman Booth introduced this petition; Mr. Earl Adams, III, a co-owner of the property was sworn in. Mr. Adams proceeded to give a history of the property. He stated that the Mumford’s are proposing that the 4.57-acre lot, which has had two dwellings on the lot pre-1976, be divided into two separate lots, each with an existing dwelling, well and ISDS. He noted that the entire lot is wooded with the exception of the immediate area around each dwelling used as their yards. There are no wetlands, watercourses or coastal features within 200 feet of the property lines. He noted that adjacent lots are approximately 2-acres each and with the proposed division of the Mumford’s property each lot would be more than 2-acres. He stated that the purpose of the division was to give each family ownership of their own property and for financial purposes. He noted that the Planning Board had approved their Master Plan with Conditional Preliminary (combined), Major subdivision – two lots no street with waiver and variances (Two legal preexisting dwellings on one lot – subdivided into two lots one dwelling within each lot) on June

7, 2022.

Board member Susan Littlefield asked why a Special Use permit (SUP) was needed; Hal Morgan, Zoning Official, stated the SUP was required and read into the record the following:

3.D. General provisions; alteration of nonconforming development.

A.     A nonconforming development may be altered under the following conditions:

1. By special use permit, authorizing the alteration, addition, enlargement, intensification or change of use, which must be approved by the Exeter zoning board of review following the procedure established in this ordinance for special use permits.

Board member Tom McMillan noted that the petitioner is altering the property, changing the single lot into two separate lots with one house on each requiring the SUP. Mr. McMillan asked why they needed to change the property. Mr. Adams explained that the alteration of the property would make the existing dwellings less nonconforming and would then allow for conventional financing for the individual property owners. Mr. Adams noted that banking institutions would not consider any financing because of the way the property currently exists. Mr. McMillan asked how long they had owned the property, Mr. Adams stated four years.

Mr. McMillan asked about the front setback on parcel two, Mr. Morgan noted that this was a preexisting, nonconforming setback, and he (Mr. Adams) did not need to request a variance.  He stated that anything from the new line would require a variance, others would not because they are preexisting.

Tim Robertson was recognized and asked if the setbacks and reliefs would still be based on the RU-4 zoning? Chairman Booth noted that the zoning would still be RU-4. Mr. Robertson also asked about the Planning Board’s conditions for approval. Mr. Adams stated that most all of the conditions have been met at this time. Chairman Booth noted that the petitioner would have to come back to zoning for any further alterations to the properties.

Chairman Booth asked if anyone from the public was present who wanted to be heard. Virginia Howard, 289 Liberty Road, stepped forward and was sworn in. She noted that it was 4-acre zoning in this area. Also, that her adjacent property was separated from Mr. Adam’s property by a trailer, stating that her property was actually 5 acres, not two. She also indicated that Liberty Road has two-acre zoning on one side and four-acre zoning on the other. She asked why they were breaking zoning in this area to create 2-acre lots, and felt they needed to have a good reason to do this.

Gerald Howard, 180 Tomaquag Road, Ashaway, 02804 was present and sworn in. He stated that he doesn’t believe that this property is for family, he believes it will become rental properties. Mr. Adams stated that his stepson, Matthew Mumford, has been living there for the past four years. He also noted that he will be moving into the other home on the property. Financial considerations have made this zoning change necessary, in order to obtain a more manageable interest rate.

Chairman Booth asked Mr.& Mrs. Howard how this would negatively impact their property.

Mrs. Howard stated that if they are going to break zoning, and not stick to 4-acre zoning in this

area, she felt they needed to have a really good reason. Chairman Booth indicated that they were not changing the zoning and used the examples of Boone Lake and Cedar Grove in the discussion.

Chairman Booth asked the Solicitor regarding the zoning requirements that merits hardship criteria. Solicitor Ruggiero reviewed Exeter Zoning Code 1.3.3.F Special Use permit requirements under C, 1 through 5; and also 1.3.C: 1 through 4--standards of review and 1.3.D under #2 granting a dimensional variance.

Mr. Adams asked to include in the record a decision the Zoning Board granted on July 24, 2017 in a 5-0 vote AP 20, B 3, L 37 (Zoned -RE-2) property located at 74 + 78 Black Plain Road. The petition requested a request for dimensional relief under Exeter Zoning Ordinance Article II, Section

2.4.2.1 (acreage relief); 2.4.2.2 (street frontage); 2.4.2.6 (side setback) and Article I Section

1.3.3.D.A a request for a Special Use Permit to create 2 separate lots with one house on each lot.

This was marked Exhibit A.

Mr. Adams also included for the record a decision regarding property located at 29 Glen Rock Road, AP 64, B 1, L 11 a decision the Zoning Board granted on July 8, 2016 in which the petition requested dimensional relief provided under Exeter Zoning Ordinance, Article II, Section 2.4.22 (frontage) and 2.4.2.6 (side depth) establishing two lots on the existing property, as Exhibit B.

Discussion  continued  between  Mr. Howard  and  Mr.  Adams  regarding  how the  property  in question would be used.

Chairman Booth asked for a motion to close the public hearing. Tim Robertson made the motion to close the public hearing and it was seconded by Loren Andrews. All in favor, 5-0 and the public hearing was closed.

Board member Tim Robertson read the following into the record:

Exeter Code 1.3.E.C: In granting a variance, the Exeter zoning board of review shall require that evidence to the satisfaction of the following standards be entered into the record of the proceedings:

1.    That the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area; and is not due to a physical or economic disability of the applicant;

2.   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;

3.   The granting of the requested variance will not alter the general character of the surrounding area or impair the intent of purpose of the Exeter zoning ordinance or the Exeter comprehensive plan, upon which this ordinance is based; and

4.   That the relief to be granted is the least relief necessary.

Exeter Code 1.3.F.C:

The following criteria will be utilized by the Exeter zoning board of review for issuance of a special use  permit.  These  criteria  are  in conformance  with  the  purposes  and  intent  of  the  Exeter comprehensive plan and the Exeter zoning ordinance. An applicant shall demonstrate to the satisfaction of the zoning board by presenting competent evidence that the proposed use and/or structure:

1.    Will be compatible with the neighboring uses and will not adversely affect the surrounding

neighbor’s use and enjoyment of their property;

2.   Will  be  environmentally  compatible  with  neighboring  properties  and  the  protection  of property values;

3.   Will be compatible with the orderly growth and development of the Town of Exeter, and will

not be environmentally detrimental therewith;

4.   The best practices and procedures to minimize the possibility of any adverse effects on neighboring property, the Town of Exeter, and the environment have been considered and will be employed where applicable including, but not limited to, considerations of soil erosion, water supply protection, stormwater runoff, wastewater disposal, wetland protection, traffic limitation, safety and circulation; and

5.   That the purposes of this ordinance, and as set forth in the Exeter comprehensive plan, shall be served by said special use permit.

Chairman Booth added that the sub-division had been approved by the Planning Board’s Record of Decision – Master Plan with Conditional Preliminary Approval (combined) – Major (reclassified minor) 2 lot Subdivision no street with waivers; Dated June 7, 2022 and should be noted in the motion.

Board member Tom McMillian added some additional facts:

1.    Two dwellings have been on the property for many years and are both occupied

2.    The sub-divided property does not differ significantly from other properties in the vicinity

3.    That the Planning Board has recommend approval of the application

4.    That there have been objections from abutters and that the board has considered them

He however, noted that he still struggles with the statement that this is not being done for

financial gain and he felt it’s obvious that indeed there are financial gains from this situation.

Tim Robertson noted that the issue the Board has seen in a lot of these case is not that they are going to realize greater financial gain, but if they don’t receive the variance, they may need to destroy one of the structures, vacate the lot and they could be facing an economic determent. Also, if they can’t obtain further financing, they could lose the property to the bank.

Tom McMillan moved to approve the petition of Lisa Mumford, Applicant and Owner of property located at 269 Liberty Road, Exeter, RI; Zoned RU-4, and further designated as Assessor’s Plat 72, Block 6, Lot 4; a request for approval of a special use permit under Zoning Ordinance Appendix A, Section 1.3.D.A.1; dividing a single lot with two preexisting legally nonconforming dwellings and dimensional relief under Zoning Ordinance Article II, for Parcel A: Section 2.4.2.1 (lot area) of 1.65 acres and Section 2.4.2.2 (minimum street frontage), of 19 feet and for Parcel B: Section 2.4.2.1 (lot area) of 1.78 acres, Section 2.4.2.2 (Minimum street frontage) of 182 feet and Section 2.4.2.6 (left side setback) of 19 feet.

Chairman Booth acknowledged the motion and had a question for the solicitor. The application lists property owner specifically as Lisa Mumford and no other owner. That the Board had heard testimony earlier from Mr. Adams, but Mr. Adams is not listed on the application. Solicitor Ruggiero stated that the application is not signed by Mr. Adams, and that he cannot reconcile it without seeing a date he doesn’t know who owns the property. That both the affidavit and the property records indicate that Lisa Mumford is the sole owner of the property.

Tim Robertson made a motion to reopen the public hearing; Loren Andrews seconded the motion.

All in favor 5-0 and the public hearing was reopened.

Board member Tim Robertson asked a question of Mr. Earl Adams about his relationship to the owner and ownership of the property in question. Mr. Adams stated that he has been the domestic partner of Ms. Mumford for the past eight years. He noted that Lisa Mumford is the sole deeded title holder of the property and that he had explained earlier that he is her domestic partner. He stated that Ms. Mumford authorized him to speak on her behalf. Mr. Adams asked if the Board would like Ms. Mumford to come to the Town Clerk’s office now to verify this and the reply was no.

At this time, Chairman Booth asked for a motion to close the public hearing. Tim Robertson made a motion to close the public hearing; seconded by Mr. Andrews. Vote was all in favor 5-0 and the public hearing was closed.

Chairman Booth noted that Mr. McMillan had made a previous motion; Susan Littlefield seconded the motion. In the affirmative: Tom McMillan, Tim Robertson, Loren Andrews, Susan Littlefield. Opposed: Richard Booth. The motion passed 4-1.

III.       ADMINISTRATIVE:

A.   Approval of Invoices: Esquire Deposition Solutions, Southern RI Newspapers and Solicitor Peter