TOWN OF TIVERTON ZONING BOARD OF REVIEW MINUTES
NOVEMBER 3, 2021
The following petitions were received and were heard by the Tiverton Zoning Board of Review on Wednesday, November 3, 2021 at 7:00 p.m.
Members present: Chairwoman Lise Gescheidt, Mr. John Jackson, Mr. George Alzaibak, Ms. Wendy Taylor-Humphrey and Mr. Edwin Schober, (second alternate) .
Also present were: Travis DeCosta, Esquire, Town Solicitor, John Hoyle, Building, Official and Ms. Sally Ferreira, Court Stenographer.
2a) Variance:
A petition has been filed by Donna Silveira, 35 Mount Hope Ave, Tiverton, RI. 02878 (302-114) requesting a variance to demolish the existing 1 ¾ story home (696 sq. ft.) and construct a new two story, two bedroom home (1620 sq. ft.). Article V, section 1: dimensional variance for a front yard setback of 13’-8” where 40’ is required, and a left side setback of 5’ where 25’ is required. Article 1, section 4-a: Enlarging, moving, and reconstructing a non- conforming structure. The property is l
DECISION: Attorney Matthew Leys appeared before the Board on behalf of the petitioners. Mr. Leys indicated that Architect Sue Horwitz and Construction Builder Kevin Sawyer were present and would testify. Ms. Horwitz and Mr.
Sawyer were sworn in Mr. and Mrs. Silveira were also present.
Attorney Leys stated when this matter was last on the agenda, there was a legal issue of whether or not the Silveiras could apply for a dimensional variance because of the provision in Article 14, Section 4 of the Tiverton Zoning Ordinance which is interpreted to preclude an applicant from demolishing a house and rebuilding a house unless it was in conformity with the Zoning Ordinance. Mr.
Leys reminded the Board that he submitted a letter dated October 22nd outlining those issues. The Chairwoman responded all the Board members received the letter and stated the letter was very helpful.
Attorney Leys introduced Architect Sue Horwitz who leads the design team at JPS Construction and Design. Ms. Horwitz stated she has been an architect for 35 years. Attorney Leys asked the Board to qualify Ms. Horwitz as an expert witness.
The Board had no objection to qualifying Ms. Horwitz as an expert after hearing her qualifications.
Ms. Horwitz stated the Silveiras are proposing to replace the home with a new, modern structure. Ms. Horwitz went on to explain the current house was built in 1925 with one bedroom and one bathroom. Ms. Horwitz further stated the building does not meet today's building codes in many ways and went on to say some of the issues include the stairs to the second floor that are substandard, electric systems that are outdated, the ceilings are lower than what is required by the building code for livable area, the windows do not meet egress requirements for fire safety, there is insufficient insulation in the walls, ceiling and floors, the windows are single glazed which does not meet the energy code requirements and today's code requires the foundation to extend higher than existing grade to prevent rot of the foundation. Ms. Horwitz added that there is a lot of existing wood rot and significant structural issues including underside structural members that are faced further apart than what is required by the current building code.
Attorney Leys asked Ms. Horwitz to describe the property in general and Ms. Horwitz went on to describe the land is long and narrow and there's an unusual turn about midway through the lot with an existing large one and a half story shed on the property and there is also a single car garage also existing on the property. Ms. Horwitz added the property is currently served by two cesspools.
At this time, five photographs showing the current house were marked as exhibits. Mr. Silveira was sworn in and gave testimony. Mr. Silveira stated the footprint of the existing shed was a paint and glass business that his wife's grandfather ran. It had a very flat roof which was dilapidated so he pulled a permit and rebuilt and added a second floor to it in 1997. Mr. Silveira stated he was a carpenter in his younger days. The Chairwoman asked what utilities were in the shed and Mr.
Silveira answered only electricity. The Chairwoman also asked if there was a bathroom in the shed and Mr. Silveira answered there was not.
Mr. Alzaibak asked if the applicants ever lived in the house. Mr. Silveira stated they lived in the house after his wife inherited it. Mr. Alzaibak further asked if
they did any updates on the house and Mr. Silveira answered they have done no updates on it.
Attorney Leys asked Ms. Horwitz to explain some of the details of the proposed new house. Ms. Horwitz went on to say the new house is two stories with two bedrooms and two bathrooms. The house will be moved away from the west property line from 2 feet 3 to 5 feet which will provide more distance between the new home and the neighbor's property. The same front yard setback will be maintained except for the steps and the landing which will create a usable front entry. Ms. Horwitz ended by saying the sewer facilities will be upgraded to a septic system and the cesspools will be removed.
Mr. Bill Sheeran an abutting neighbor to the left of the property asked if the single stall garage is staying or going. Ms. Horwitz replied the garage is staying. Mr.
Sheeran was concerned of the fire hazard this may create because the garage is very close to his home. Mr. Alzaibak addressed Mr. Sheerhan and stated that garage is not moving, it's preexisting. Mr. Sheerhan concluded by saying he is not against the Silveiras building a house he just wanted to make his concerns known because he just went through a house fire.
In closing, Attorney Leys stated special conditions and circumstances exist which are not applicable to other lands or structures in the same zoning district. Attorney Leys reminded the Board that Ms. Horwitz testified that this an unusually substandard house on an unusual narrow lot. Attorney Leys further stated such relief will not be contrary to the public interest because the applicants are replacing a building that's not to code for a home that is to code. Literal enforcement of provisions of this ordinance would result in an unnecessary hardship to the applicants. It would clearly be an unnecessary hardship to require them to keep this home that's not to code an arguably unusable. The unnecessary hardship that the applicants seeks to avoid has not been imposed by any prior action of the applicants. Attorney Leys also stated the granting of the requested variance will not alter the general character of the surrounding area because the house size is typical of the house sizes in the area. This is a residential district so it's consistent with those same things, and in allowing the relief from the ordinance the Board shall grant the least variance from the provisions needed to remove the unnecessary hardship.
The Board took no further input or comments from the audience so they could discuss the petition. The Chairwoman stated it seems the first issue the Board has
to deal with is whether this Board has the authority to grant the variance given "thou shall not rebuild" provisions of the ordinance, under the circumstances. The Chairwoman went on to say when the Silveiras came here without counsel it was her opinion that this Board did not have the ability to grant a variance and that's why it was suggested that the Silveiras seek legal advice. The Chairwoman further stated it doesn't make any sense to say that a house that was built in 1925 that doesn't have a foundation, that's near the water, that's rotting couldn't be fixed or made habitable. To interpret the statute or the ordinance any other way would deprive the Silveiras' beneficial use of the property. The present house is unsafe to live in and it doesn't fit the building codes, energy codes and it violates the fire code and septic requirements. The Chairwoman also stated this Board has to interpret the ordinance in a way that makes the most sense that allows the applicants to exercise their property rights and protect the public from any dangers that the existing structure might have if it continues without being repaired.
Ms. Taylor-Humphrey asked the town's solicitor to weigh in on the issues to make sure that the Board is approaching this from the right perceptive. Attorney DeCosta stated he spoke to Solicitor Marcello who is usually at these meetings who stated it is his opinion that this Board can give this variance if it's in the Board's discretion.
The Chairwoman stated the house is uninhabitable the way it is and there are special conditions and circumstances that exist peculiar to the land which are not applicable to other land or structures in the same zoning district, and are not due to the physical or economical disability of the applicants. The Silveiras inherited this property. They haven't made any changes to it. They've lived there. It needs repair and what they are proposing appears to be acceptable with the safety requirements, the energy requirements, the septic requirements. They have already gotten an approval from DEM. The Chairwoman further stated this house was built long before we had enacted our zoning codes and the criteria has been met based on the evidence that's been presented. The relief would not be contrary to public interest, and that given the substandard size of the present lot and the existence of the house as limited as it is, and given the fact that the proposal is a modest two bedroom home that to deny the relief would result in an unnecessary hardship to the applicants. This is again not imposed by any action of the Silveiras and monetary gain or loss is not considered to be an unnecessary hardship. The neighborhood would benefit by having this house be replaced with one that meets the codes and it will not alter the general character of the surrounding area or
impair the intent of the Zoning Ordinance or the Comprehensive Plan. To grant the relief from the size setback and the front setback requirement is the least amount of variance that would remove the unnecessary hardship and that this is sort of an obvious example of where the improvements would benefit the neighbors and improve the safety fire considerations, septic considerations and energy considerations. So to deny the relief would result in the Silveiras to have any reasonable beneficial use of their land and this is more than just a mere inconvenience should we not grant this. So for those reasons the Chairwoman made a motion to grant the variance as requested. Mr. Alzaibak seconded. The vote was unanimous. Voting were Ms. Gescheidt, Mr. Jackson, Ms. Taylor- Humphrey, Mr. Alzaibak and Mr. Schober.
2b) Variance:
A petition has been filed by Jennifer Jackson, 24 Lake Road Tiverton, RI. 02878 (905-165) requesting a Dimensional Variance pursuant to Article VI, Section 1: to construct a new 1,080 S.F. barn for her own personal use. The property is located within the R-80 zoning district.
DECISION: Ms. Jennifer Jackson and her nephew Nicholas Armstrong who live on the property were sworn in.
Ms. Jackson came before the Board and stated she is requesting a variance which governs the dimensional requirements to the accessory structures. Ms. Jackson described she would like to bring her horse home to live on the property instead of boarding her at a friend's house. The barn she is proposing to put on the property is 1,080 square feet and the allowed size is 864 square feet. Ms. Jackson further stated it is a 216 square foot difference.
The Chairwoman asked how many acres are there on the property and Ms. Jackson answered 2 and a half acres. The Chairwoman also asked Ms. Jackson if she lives on the property and Ms. Jackson responded she does.
Ms. Jackson addressed the Board and stated granting this relief will not be contrary to the public interest and went on to say the neighbors are in support of this. Ms. Jackson also stated granting this relief will not alter the general character of the surrounding area or impair the intent or purpose of the Zoning Ordinance.
The Chairwoman stated the Board looked at the drawings and read the letter from Mr. Hoyle the building zoning official. At this time the letter was marked as an exhibit.
In closing Ms. Jackson stated the barn will not be visible from the street and that the additional 216 feet does not in any way impose on setbacks.
Mr. Alzaibak stated he went by the property and it's his opinion that this barn will not obstruct any of the neighbors.
The Board took no further input from the applicant and there were no comments from the audience. At this time the Board discussed the petition. Ms. Taylor- Humphrey made a motion to accept this request for a variance for a proposed 1,080 square foot barn outside of the current allotment of 864 square feet. There are no other setback requirements or other variances that are being required as part of this petition. The applicant lives in an R-80 zone with two and-a-half acres.
The applicant testified that the barn will not be visible from the road. It is a 30 x 36 foot barn which if anybody knows horses and barns that is not a big barn at all. Ms. Taylor-Humphrey went on to say going through all of the standards she believes that the standards have been met. There are special conditions and circumstances which it wasn't testified as to whether they were not applicable to other land or structures but she believes based on the amount of space that this applicant has that the special conditions of wanting to bring an owned horse to her property when the applicant has the ability to do that is a special circumstance, that the relief that the applicant is requesting will not be contrary to the public interest. The applicant has plenty of acreage. The unnecessary hardship which the applicant is seeking to avoid is not imposed by her and I think the Board is in agreement that the granting of the requested variance will not alter the general character of the surrounding area. Again, just referencing the acreage that the applicant has and the fact that she lives on Lake Road, a horse barn would fit in with the general character of that area and the surrounding area. The applicant is looking for the least amount of relief. The applicant testified that she was looking into having a smaller constructed barn but because of COVID that a pre-built barn is really the only option available. The 216 feet of relief is all that the Board is granting. Mr. Schober seconded. The vote was unanimous. Voting were Ms. Gescheidt, Mr.
Jackson, Ms. Taylor-Humphrey, Mr. Alzaibak and Mr. Schober.
2c) Variance:
A petition has been filed by Vincent Paquette, 35 Hancock Street, Tiverton, RI. 02878 (203-129) requesting a variance to build a detached two stall garage. Article V, section 1: Dimensional Regulation Tables: Minimum front yard setback in the HC zone is 40’. Proposed detached garage 21.5’ from the front property lines.
DECISION: Mr. Hancock was sworn in and addressed the Board. He stated that he has lived in his house for fifty years. His grandfather gave him the lot and in turn he built a house, put an addition on and put a swimming pool in but never did end up putting a garage. Mr. Hancock went on to say when he retired he bought a camper during COVID to go traveling. Mr. Hancock also stated he would like to put a garage on his property to keep his new camper and his truck.
The Chairwoman let Mr. Hancock know that one of the requirements for relief is the applicant needs to provide the Board with an official surveyor's site map. Mr. Hancock responded he did. The Chairwoman brought it to Mr. Hancocks attention that the plan he submitted has obviously been altered because there is information that has been whited out and information has been added in that the engineer didn't put on it.
Mr. Hoyle was asked if he would accept the plans are they are and he replied he does not have a problem with the applicant making a correction with the spelling on the street. Mr. Hoyle added the location of the proposed garage was obviously done by the professional land surveyor. Mr. Hoyle asked as part of the application process if he can get a clean copy updated from the surveyor with his stamp and revised date on it.
Ms. Taylor-Humphrey stated she would like the petitioner to bring in someone that can address the runoff, the pitches to all of the trenches, the reason for the suggestions for the trenches in the first place, the new lot coverage because now it's going to have new impervious area that's going to be there, whether this is the least relief that you can possibly provide as opposed to a different sized garage and a different location for the garage.
Mr. Hancock requested a continuance to come back next month to address the Board's questions and provide an unaltered surveyor's plan with a revised date on it.
The Board were all in favor of granting the request. Voting were: Ms. Gescheidt, Mr. Jackson, Ms. Taylor-Humphrey, Mr. Alzaibak and Mr. Schober.
2d) Special Use Permit:
A petition has been filed by Kelly Ley from State Permits Inc. 319 Elaines Court, Dodgeville, WI. 53533 requesting a special use permit to have a drive up ATM at Dollar General located at 567 Main Road, Tiverton, RI. 02878 (116-361) for general consumer convenience which is located in a GC zone with an overlay zone of pedestrian friendly destination. Article XVI, section 2: Special use permit.
DECISION: Michael Perreira with William Starck Architects along with Phil Henry from Civil Design Group and Dylan Lincoln from Citizens Bank were sworn in. Mr. Pereira addressed the Board and stated Citizens Bank would like to construct a drive-up ATM in the parking lot of the Dollar General located at 567 Main Road.
Michael Perreira stated the Dollar General is an existing retail building on approximately 8,300 square feet that requires a minimum 28 parking spaces and currently there are 33 parking spaces which the applicant does not intend to change any of the parking spaces. Currently within the lot there is an 80 foot easement from Main Road and the proposed drive-up ATM will be constructed after the easement.
Mr. Perreira added the applicant is proposing to improve the site by restriping the parking lot spaces and also providing pavement markings to indicate traffic ingress and egress in and around the property and also providing a cross stripe for pedestrian action from the sidewalk to the establishment.
Mr. Perreira went on to say the applicant has been in front of the town's Technical Review Committee and Planning Board and received approval. A traffic study was
conducted and it indicated the amount of traffic that's in and around the property that's also shared with the adjacent commercial property which showed at best the bank is considered maybe seventeen cars a day compared to the hundreds of cars that are in and out of the property as well.
Mr. Alzaibak asked if the bank is leasing that property and Mr. Perreira replied the bank is leasing the property through Dollar General.
Mr. Jackson asked why would the bank want to invest in a kiosk like this for seventeen transactions a day. Mr. Lincoln responded it's more for customer convenience because there's kind of a gap so it's an opportunity for the bank to provide convenience more for customers that the bank does have in this area and traveling through this area than it's looked at as a profit maker. The seventeen cars are estimated in the Tiverton area but compared to one in Philadelphia, it's a different market and you're going to get a lot higher traffic.
Mr. Alzaibak asked who will be maintaining that drive-up area and Mr. Lincoln responded Citizens will maintain it and as part of the lease such as the snow removal that all falls to the landlord Dollar General which is all outlined in the lease. Mr. Lincoln went on to say there is some minimal landscaping that the Planning Board had asked for to make that area pedestrian friendly. Mr. Alzaibak asked if there were security cameras that will be monitoring the surrounding area and Mr. Lincoln replied there will be cameras as well as sufficient lighting.
Ms. Taylor-Humphrey asked if this will be open 24 hours a day. Mr. Lincoln responded it will be although the Dollar General is not open 24 hours a day. Ms. Humphreys stated she would like Mr. Perreira to address how this will not be detrimental to the public health, safety, welfare and morals of the public. Mr.
Perreira replied that the parking lot will get restriped and paving markings will be added to clearly indicate vehicle traffic through the site. Mr. Perreira also stated a pedestrian crosswalk will be added that will help the Dollar General or ATM customers to get in safely using either both establishments.
Attorney Matt Chappell appeared on behalf of Timothy Downs the owner of 587 Main Road which is the construction company that abuts with Dollar General. Mr. Chappell explained both of these properties used to be owned by the same owner
Mr. Duffy who put an 80 foot easement in place just on what is now the Dollar General property so that it wouldn't restrict the view of whatever use he was using for the corner property. Mr. Chappell went on to say the construction company does not have an 80 foot easement off of Main Road.
Mr. Chappell discussed the traffic study and the two means of ingress or egress that is shared between the two properties. Mr. Chappell pointed out the drawings that were submitted by the petitioner place the easement completely on their property and it is his client's contention that that is his client's only means of ingress and egress. The traffic study that was submitted showed that over the course of two days 676 vehicles entered Entrance A and in that same study it showed that only 287 vehicles exited Entrance A. Mr. Chappell explained that over the course of two days, that's nearly 400 vehicles exiting his client's only means of ingress and egress. Mr. Chappell went on to say people are going to leave that ATM and drive straight out across his client's property and exit onto Main Road.
Mr. Chappell informed the Board that Mr. Downs would like it to be clear that that fence that extends across his property line now is likely going to extend to the road or as close to the road as he can make it to prevent this from being a further issue if this is considered by the Board and approved.
Mr. Chappell explained the way that their deliveries are done now their loading zone is on the south side of their building closest to the construction company. These 76 foot tractor trailer trucks come in and do this wide sweeping turn all the away against the building and then pull up and hit his client's fence in-between the property line very frequently and they have to do a 12 point turn to get back to the loading dock. Mr. Chappell stated to put an ATM bay dead center of where these trucks already are not capable of operating in is just going to create an even bigger issues. Mr. Chappell further stated every time his client brings the damaged fence issues to the owners of the Dollar General it's met with oh, it probably wasn't our truck type of deal and it just gets shrugged off.
The Chairwoman stated she is not opposed to an ATM machine somewhere but she is concerned about it impacting Mr. Chappell's client's business. The Chairwoman went on to say it seems that Dollar General is missing from the discussion here and asked if they have been spoken to about these issues. Mr. Chappell responded no and the only reason for that is because of the points of contention in the past with
Dollar General and his client mostly being the fence because every time the fence is hit they respond with it wasn't me.
Mr. Chappell stated his client was not at the Planning Board meetings because he was not notified and was unaware of this proposed ATM. Ms. Taylor-Humphrey stated the way this is presented right now she would vote no. The Chairwoman suggested that Dollar General should be involved in this discussion because there seems to be a big traffic mess and there needs to be some kind of comprehensive resolution to this.
Mr. Perreira requested a continuance to bring Dollar General to the table and see if they can work out an agreement with Mr. Downs. Mr. Chappell stated he objects to a continuance. The Chairwoman made a motion to grant the continuance . Mr. Jackson seconded. The Vote was four to one. Voting in favor were: Ms.
Gescheidt, Mr. Jackson, Mr. Schober and Ms. Taylor-Humphrey. Voting against was Mr. Alzaibak. The motion passed four to one.
3) Approval of minutes of July 2021 and September 2021 meeting.
Mr. Alzaibak made a motion to approve the minutes. Ms. Taylor-Humphrey seconded. The vote was unanimous. Voting were Ms. Gescheidt, Mr. Jackson, Ms. Taylor-Humphrey, Mr. Alzaibak and Mr. Schober.
4) Discussion and Review:
Discussion and review of proposed amended forms and rules of procedure. Applications for variances and Special Use Permits, appeals from the Building Official; appeals from Planning Board; and Rules of Procedure.
5) Adjournment
Mr. Jackson made a motion to adjourn the meeting at 9:45 p.m. Mr. Alzaibak seconded. The vote was unanimous. Voting were Ms. Gescheidt, Mr. Jackson, Ms. Taylor-Humphrey, Mr. Alzaibak and Mr. Schober.
(Whereupon the Zoning Board of Review meeting ended at 9:45 p.m.) ZBR/ssf
C E R T I F I C A T E
I, Salvina S. Ferreira, Registered Professional Reporter, hereby certify that the foregoing 12 pages of the Tiverton Zoning Board of Review minutes are transcribed to the best of my knowledge, skill and ability.
I further certify that I am not interested in the event of the action.
IN WITNESS WHEREOF, I have hereunto subscribed my hand and affixed my seal of office this 21st day of November, 2021.
Salvina S. Ferreira, RPR My commission expires: September 26, 2025
ID # 28792
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