At a Regular Meeting of the Town Council of the Town of Middletown, Rhode Island, held at the Middletown Town Hall on Monday, October 17, 1994 at Seven O'Clock P.M.
| Council President George L. Andrade, Jr., | Presiding |
| Vice Chairwoman Arleen F. Kaull, | |
| Councilman William J. Flynn, | |
| Councilman Michael P. Kehew, | |
| Councilman Matthew O. Kirby, | Members Present |
| Councilman Scott McLeish, | |
| Councilman Robert Sullivan, | |
1. Applications received from the following named persons, firms or corporations for RENEWAL of Alcoholic Beverage License for the 1994-1995 licensing year - see attached list. (Requires advertising for Public Hearing)
Applications received from the following named persons, firms or corporations for renewal of Alcoholic Beverage License for the 1994-1995 licensing year. (Requires advertising)
AQUIDNECK DEVELOPMENT COMPANY, INC. - 554 West Main Road
AQUIDNECK PACKAGE STORE, INC. - 99 East Main Road
COUNTY LIQUOR MART, INC. - 43 Aquidneck Avenue
FRANK S. SANTOS - 717 Aquidneck Avenue
ELIZABETH AMARANT & ELENI MOISIADES/Aquidneck Pizza - 27 Aquidneck
RAUL BRAGA/Braga's Spaghetti & Grinder Shop - 1397 West Main Rd
CHEAP EATS', INC./Cheap Eats - 999 West Main Road
HISAE'S, LTD./Hisae's - 21-A Valley Road
ISLAND MANAGEMENT, INC./Flo's Clam Shack - 4 Aquidneck Avenue
PIZZA HUT OF AMERICA, INC. - 265 East Main Road
LISA M. SINCLAIR/Middletown House of Pizza-288 East Main Road
TOULA & JIM, INC./Ocean View Restaurant - 28 Aquidneck Avenue
TITO'S TACOS, A PARTNERSHIP - 651 West Main Road
ANDREW'S AT EASTGATE, LTD. - 909 East Main Road
BEACH VIEW ASSOCIATES, INC./Bobby Valentine's - 68 Purgatory Rd
C & M RESTAURANT, INC./Crickets - 665 West Main Road
CHING TAO CHINESE RESTAURANT, INC. - 268 West Main Road
DENNIS M. CROOKES, SR./Woodhooker's Sports Tavern-238 East Main Rd
D & H, INC./The Lighthouse Restaurant - 210 Coddington Hwy
HPK, INC./Johnny's House of Seafood - 53 Purgatory Road
JOHNNY'S ATLANTIC BEACH CLUB, INC./Atlantic Beach Club-55 Purgatory
JUNG, LTD./SeaShai Restaurant - 747 Aquidneck Avenue Suite 1B
K & E CORPORATION/Rhea's Family Restaurant - 120 West Main Road
K J'S PUB, LTD.- 59-61 Aquidneck Avenue
MARJAN, INC./East Side Mario's - 593 West Main Road
MIDDLETOWN CULINARY, INC./Howard Johnson's - 349 West Main Road
N.E. RESTAURANT CO., INC./Chili's Grill & Bar- 845-857 West Main Rd
NEWPORT COURT CLUB ASSOCIATES/Newport Athletic Club - 66 Valley Rd
SANDOR, INC./The Strike Zone - 173 East Main Road
STEVEN TIANG/Batik Garden - 99 East Main Road
TOMMY'S DELUXE DINER, INC. - 159 East Main Road
THOMAS F. TULLY/Sun and Sand Cafe - 44 Wave Avenue
WALTER B'S, INC.- 878 West Main Road
COURTYARD MANAGEMENT CORP./Courtyard Marriott - 9 Commerce Drive
PURGATORY ASSOCIATES/Inn at Newport Beach & Newport Beach Club - 30 Wave Avenue
SAVI INTERNATIONAL CORPORATION/Royal Plaza Inn - 425 East Main Road
SIBLEY ENTERPRISES, INC./Comfort Inn - 936 West Main Road
ROBERT D. SANCHES/The Briarwood - 93 Aquidneck Avenue
AQUIDNECK ISLAND ALL-VETS CLUB, INC. - 985 Aquidneck Avenue
CAPT. KENNETH L. GILBERT POST HOME ASSN./VFW - Underwood Lane
CLAMBAKE CLUB OF NEWPORT - 353 Tuckerman Avenue
MIDDLETOWN COLUMBUS CLUB, INC. - 7 Valley Road
MIDDLETOWN FRATERNAL ORDER OF POLICE LODGE #21 - 464 Mitchell's Ln
NORTH END CLUB OF NEWPORT, RI & PROV. PLANTATIONS - 26 Brookdale Rd
WANUMETONOMY GOLF CLUB - 152 Brown's Lane
BOOTHS CATERERS, INC./Kempenaar's Clambake Club - Valley Road
On motion of Council President Andrade, duly seconded, it was voted to advertise said license applications for a Public Hearing to be held at the November 7, 1994 regular meeting of the Board.
1. Approval of Minutes - Regular Meeting, September 6, 1994.
On motion of Council President Andrade, duly seconded, it was voted to approve said minutes.
2. Approval of Minutes - Regular Meeting, September 19, 1994.
On motion of Council President Andrade, duly seconded, it was voted to approve said minutes.
3. Financial Report: Fiscal Year 1994-1995 through September 30, 1994.
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to receive said report.
4. Communication of the Honorable Bruce Sundlun, Governor, State of Rhode Island, re: Reimbursement of town expenses relative to the commissioning of the U.S.S. Rhode Island.
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to receive said communication.
5. Communication of Paul R. Annarummo, P.E., Secretary, State Traffic Commission, re: Traffic signal at West Main Road and Brown's Lane.
On motion of Council President Andrade, duly seconded, it was voted to receive said communication.
6. Notice of Public Hearing received from City of Newport, re: Adoption of zoning ordinance to meet requirements of Zoning Enabling Act of 1991.
On motion of Council President Andrade, duly seconded, it was voted to receive said notice.
7. Application of Charles Marshall, Tiverton, for RENEWAL of Tattooing License for premises located at 350 West Main Road for the 1994-1995 licensing year.
On motion of Council President Andrade, duly seconded, it was voted to grant said license.
8. Applications received from the following named persons, firms or corporations for RENEWAL of Victualling House License - Additional Operating Hours - for the 1994-1995 licensing year - see attached list. (Requires advertising for Public Hearing)
On motion of Council President Andrade, duly seconded, it was voted to advertise said license applications for a Public Hearing to be held at the November 7, 1994 regular meeting of the Council.
1. Report of Navy Beach/Third Beach Committee.
On motion of Council President Andrade, duly seconded, it was voted to receive said report.
On motion of Council President Andrade, duly seconded, it was voted to suspend the Rules of the Council to receive the Navy Beach/Third Beach Building Committee's Layout Concept and the Navy Beach proposed building floor plan and footprint.
Sub-Committee Chairmen James Razza and Lester Carpenter addressed the Council concerning their sub-committee activities. It was noted that the report reflects the general consensus of opinion of the Committee members. The Committee will continue to meet and will inform the Council concerning piling test results and the CRMC decision relative to the application for a replacement building.
The Town Administrator informed the Council that the Open Space Bond could fund project (app. $200,000.-$220,000.) as well as improvements and expansion to the Second Beach Facility as suggested by Vice Chairwoman Kaull.
Councilmen Kirby and Sullivan disqualified themselves from acting on the following items of business - thru Item #5 - due to a possible conflict of interest.
2. Communication of Allen Shers, Portsmouth, re: Opposition to proposed amendment to Town Zoning Ordinance, Section 506, Nonconforming Lot of Record.
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to receive said communication.
3. Communication of Charles Vaillancourt, Middletown, re: Proposed amendment to the Town Zoning Ordinance, Section 506, Nonconforming Lot of Record.
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to receive said communication.
4. Communication of Secretary, Middletown Planning Board, re: Recommendation, concerning proposed amendment to Town Zoning Ordinance, Section 506, Nonconforming Lot of Record.
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to receive said communication.
On motion of Council President Andrade, duly seconded, it was voted to suspend the Rules of the Council to consider the following items of business:
Communications received from the following named persons expressing opposition to proposed amendment to Section 506 of the Zoning Ordinance:
1) Trice and Chris Bouzaid, 747 Aquidneck Avenue
2) David G. Bazarsky, Polo Center, Aquidneck Avenue
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to receive said communications.
5. Public Hearing (Advertised; Abutters Notified)
An Ordinance of the Town of Middletown, (First Reading)
An ordinance in amendment to the Town Code of the Town of Middletown, Chapter 26, the Zoning Ordinance, adopted effective December 18, 1985, Section 506, Nonconforming Lot of Record.
Public Hearing was declared open.
Town Solicitor Michael W. Miller addressed the Council in response to the communication of Charles Vaillancourt entered above. Mr. Miller noted that Section 2106 of the Zoning Ordinance refers to the resubmission of a petition and amendment which had been denied by the Town Council or withdrawn with prejudice. The amendment now under consideration by the Council differs from a prior proposed amendment to Section 506 which was withdrawn without prejudice.
Robert M. Silva, Esquire representing Joseph Silveira, addressed the Council. He explained that his client is seeking to amend Section 506 to allow him the opportunity to seek a special exception from the Zoning Board of Review to open an auto repair business on an unimproved nonconforming lot on Aquidneck Avenue. It differs from a prior proposal by requiring that a special exception can be sought for a nonconforming lot only if that lot has at least 50% of the minimum lot area required by Section 320. This would apply to all undersize lots in commercial districts and, therefore, cannot be considered spot zoning. Section 506, as it is currently constituted, is inflexible and unfair, whereas the proposed amendment is reasonable and provides only the opportunity to ask for permission to open a business - auto repair shop - which is permitted by right in LB zones.
Patrick O'N. Hayes, Jr., Esquire, representing Demesne, Inc., abutting property owners, again addressed the Council in opposition to the proposal. He informed the Council that the new proposal fails to address the minimum lot width required for filing a special exception. This would indicate that no minimum is required and it doesn't matter how wide the lot is. In addition, the language of the proposal could negate the developable land requirements of Article 20, Paragraph 9 of the Zoning Ordinance.
On motion of Council President Andrade, duly seconded, it was voted to suspend the Rules of the Council to receive a copy of said Article 20, Paragraph 9.
Mr. Hayes also pointed out that Mr. Silveira has the right to apply to the Zoning Board for a use variance, although the request will be held to higher hardship standards.
Responding to Council inquiry, the Town Solicitor explained the differences between a special exception, a dimensional variance and a use variance.
Charles Vaillancourt and Nancy Gleason, abutting property owners, addressed the Council. Mr. Vaillancourt expressed concern about the possibility of improved lots reverting to an unimproved state in order to benefit from the new proposal. He provided a Black's Law Dictionary definition of unimproved land (land always unimproved or formerly improved but not unimproved) as a basis for his concern.
On motion of Council President Andrade, duly seconded, it was voted to suspend the Rules of the Council to receive a plat map and site plan of the location.
Mr. Vaillancourt continued that this petition is designed to benefit one person, that it constitutes spot zoning and that no hardship exists because Mr. Silveira cannot represent that he's being deprived of all beneficial use of his property.
Paul Hogan, Demesne, Inc., noted that the proposal could affect any number of commercial lots because "unimproved lot" has not been officially defined and required lot width has not been addressed.
Raymond Abraham, 999 Aquidneck Avenue, voiced opposition to the plan to open an auto repair shop. He expressed concern about chemical spills and water contamination.
Mr. Vaillancourt noted outrage at cutting minimum requirements by 50%.
Mr. Silva suggested that the proposal be modified to: 1) include lot width in the 50% category, 2) strictly define "unimproved lot" and 3) require compliance with Article 20, Paragraph 9 - developable land. He acknowledged the right of Mr. Vaillancourt and Mr. Abraham to oppose the proposal but asserted that the proper forum in which to voice that opposition is the Zoning Board. He reiterated that Mr. Silveira should have the right to apply for a special exception.
Andrew Rock, Kane Avenue, inquired about proper procedure for changing the proposal.
The Town Solicitor responded that amendments proposed before the close of the public hearing do not require additional advertising.
Councilman Kehew noted that while the proposed modifications are intended to close loopholes, there may be others and he cautioned against lowering standards.
Councilman Flynn expressed confidence in the Zoning Board to act responsibly and make proper decisions.
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to direct the Town Solicitor to draft the following additional modifications to the proposal:
1) lot width minimum requirements of 50%
2) strict definition of unimproved lot
3) compliance with Article 20, Paragraph 9 - developable land
and to include same in said proposal. Councilman Kehew voted NO to said motion.
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to continue the public hearing to the regular Council meeting of November 7, 1994; Councilman Kehew voted NO to said motion.
6. Public Hearing (Advertised; Abutters Notified)
An Ordinance of the Town of Middletown, (First Reading)
An ordinance in amendment to the Town Code of the Town of Middletown, Chapter 26, the Zoning Ordinance, adopted effective December 18, 1985, changing the classification of Lot 35, Tax Assessor's Plate 107NE from Traffic Sensitive Office Business (OBA) to Traffic Sensitive Limited Business (LBA).
Public Hearing was declared open.
Robert M. Silva, Esquire, representing Jeanne M. Napolitano and J. Kenneth Quirk, dba Bailey Brook Associates, property owners, addressed the Council. He explained that this matter first was heard at a regular Council meeting on September 6, 1994. Following that public hearing and prior to the second reading, it was learned that the list of abutters, provided so that notice can be given, was incomplete. That necessitated beginning the process anew, including advertising, abutter notification and a new public hearing. There are no substantive changes in the proposal.
On motion of Councilman Kehew, duly seconded, it was voted to receive the minutes of the September 6, 1994 Public Hearing (Council Records, Volume 37, Page 420) and, by reference, to make same part of the official record of this public hearing.
Mr. Silva noted that the 1992 Comprehensive Community Plan has designated the property residential and an approval of the current zoning petition would necessitate an amendment to the plan.
There being no other persons present desiring to be heard on the matter, public hearing was declared closed.
On motion of Councilman Sullivan, duly seconded, it was voted to receive said ordinance on its first reading.
7. Communication of William E. Stratford, Chairman, Town Planning Board, with enclosures, re: Incorporation of proposed Town Council changes in Town's Comprehensive Community Plan.
On motion of Councilman Kehew, duly seconded, it was voted to receive said communication.
On motion of Council President Andrade, duly seconded, it was voted to accept the revisions and to incorporate them into the amended plan.
8. Public Hearing (Advertised)
Amendment to Town's Comprehensive Community Plan - Proposed changes to said plan in compliance with State Guide Plan. (First Reading)
Public Hearing was declared open.
Town Administrator Michael E. Embury informed the Council that the subject of this public hearing is technical changes to the plan required by the State Division of Planning. Additional changes to the text of the plan must first be reviewed by the Planning Board and they are not under consideration this evening.
Robert M. Silva, Esquire, 1100 Aquidneck Avenue, expressed concern about Element IX - Land Use and certain inconsistencies. He inquired about the amendment process to the Plan and to the Zoning ordinance which will implement the plan.
The Town Administrator responded that the adoption of the zoning ordinance will correct any inconsistencies and that the plan, which can be amended four times annually, will be changed in accordance with the ordinance.
There being no other persons present desiring to be heard on this matter, public hearing was declared closed.
On motion of Council President Andrade, duly seconded, it was voted to receive said amendment on its first reading.
9. Discussion of alleged contamination on site identified as Lots 8,9,9A,10, Tax Assessor's Plate 111, West Main Road - Councilman Kirby.
Councilman Kirby expressed concern about contamination alleged to be found at the site above noted. He is seeking a clarification of the Town's legal rights and responsibilities, including the right to bring suit against the property owner, its trustee in bankruptcy and the parties responsible for the pollution as well as potential liability on the part of the Town.
The Town Solicitor noted that the State of Rhode Island, through its Dept. of Environmental Management, has authority over contamination. It will assess the situation, identify the problem and, if warranted, issue a notice of violation to be recorded in the Town's Land Evidence Records. Testing has begun but no information has been received.
On motion of Council President Andrade, duly seconded, it was voted to direct the Town Administrator to contact RIDEM seeking the status of the site and testing thereon and to request that the Town be kept informed concerning same.
At the request of Councilman Kirby, the Town Solicitor will review the Environmental Advocates Act and the Environmental Rights Act and report his findings to the Council.
10. Memorandum of Town Administrator, with enclosures, re: Senior citizen tax exemptions.
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to receive said memorandum.
11. Continued from meeting of September 19, 1994
Resolution of the Council, re: Authorizing Middletown participation in the Rhode Island Interlocal Risk Management Trust's Health Risk-Sharing Pool.
On motion of Council President Andrade, duly seconded, it was voted to continue this matter pending the decision of the Middletown School Committee concerning its participation.
12. Communication of Brian G. Bardorf, Esquire, Newport, re: Request for acceptance of roads and utilities at Sunset Ridge Subdivision.
On motion of Council President Andrade, duly seconded, it was voted to receive said communication and to approve the request.
13. Communication of Jeannine Preuit, Patricia Roberts and others, re: Request for support for participation in London New Year's Day Parade by Middletown's Universal Cheerleading Association All-Star selections.
On motion of Council President Andrade, duly seconded, it was voted to continue this matter to the November 7, 1994 regular meeting of the Council for additional information.
14. Memorandum of Town Administrator, with enclosures, re: Enterprise Zone.
On motion of Vice Chairwoman Kaull, duly seconded, it was voted to receive said memorandum.
The Town Administrator will supply additional information at the Council's next regular meeting, November 7, 1994.
On motion of Council President Andrade, duly seconded, it was voted to adjourn this meeting at 10:10 P.M.
__________________
Barbara L Nash, CMC
Council Clerk