TOWN OF TIVERTON

ZONING BOARD OF APPEALS MINUTES APRIL 6, 2022

The following petition was received and heard by the Tiverton Zoning Board of Appeals on Wednesday, April 6, 2022 at 7:00 p.m.

 

Members present: Chairwoman Lise Gescheidt, Vice Chairman David Collins, Ms. Wendy Taylor Humphrey, Mr. John Jackson, Mr. George Alzaibak, Ms. Jennifer Hilton (first alternate), and Mr. Edwin Schober (second alternate).

 

Also present were: Mr. Michael Marcello, Esq., Town Solicitor, Mr. John Hoyle, Jr., Building/Zoning Official, and Ms. Sally Ferreira, Court Stenographer.

 

The Chairwoman called the meeting of the Tiverton Zoning Board of Appeals to order at 7:32 p.m.

 

1) Zoning Appeal:

Continued from March 2, 2022

A petition has been filed by Rosalind Weir, PO Box 98 Adamsville, RI. 02801, pursuant to Article XV Section 3a for the appeal of Four Corners Properties, LLC, 28 East Road (Plat 706-Lot 111) R-80 zone from a decision and violation notice from the Building Official/Zoning Official dated September 27, 2021 related to the holding of weddings at the site in violation of zoning and the construction of a tent without the proper permit.

 

DECISION: Rob Stolzman, Esq., appeared before the Board on behalf of the petition. The applicant was sworn in.

 

Mr. Stolzman stated that the violation issued in September of 2021 for the advertisement and hosting of weddings was improper. The subject property had held events since the nineties. He explained that when the zoning ordinance changed around 2013, a Special Use Permit (hereinafter, “SUP”) was obtained in 2014 for specific events. From 2015 to 2019 dozens of weddings were held. Mr. Stolzman opined that the SUP granted in 2014 was still valid, and had never been rescinded.

 

The Chairwoman asked if the ordinance allowed public gatherings for non-profit

reasons. Mr. Stolzman replied that it included non-profit as well as other uses.

 

The Chairwoman asked if the violation was served on September 27, 2021. Mr. Stolzman replied in the affirmative. The Chairwoman stated that the ordinance provides for a thirty (30) day appeal period. Mr. Stolzman agreed. The Chairwoman noted that on October 27, 2021 a sixty day (60) extension was granted. On December 9, 2021 Mr. Marcello received a letter requesting that the violation be rescinded, but there was no petition for an additional extension. Mr. Stolzman disagreed, and stated that he understood that the matter would be continued until an appeal could be filed.

 

The Chairwoman stated that due to the two extensions, the appeal period expired on December 24, 2021. The application for appeal was received by the Town on January 25, 2022, and the document was not dated.

 

Mr. Stolzman said that he was of the understanding that there was a verbal agreement that the appeal period would be extended until the appeal could be filed. The Chairwoman replied that she reviewed the correspondence, and there was no evidence in writing of another extension. Mr. Stolzman did not agree.

 

The Chairwoman mentioned that the SUP was granted along with a variance, and the Board did not have the authority at the time to grant both. Additionally, the Newport water department was not formally noticed. She stated that any action taken by the Board without proper notice would be annulled.

 

Mr. Marcello said that as proof that notice was not sent as required, the application materials submitted on December 3, 2014 did not show Newport water department on the abutter’s list.

 

Mr. Marcello stated that the applicant submitted an identical petition for a SUP following the annulment of the improper 2014 SUP. He opined that this was evidence that the applicant was aware that the 2014 SUP was void. The Chairwoman acknowledged that the petition said weddings had been held at the subject property since the nineties, and asked if the claim was to grandfathered rights. Mr. Stolzman replied in the affirmative, rights to a legal non-confirming use.

 

Mr. Marcello pointed out that the original SUP application in 2014 indicated the current use of the subject property was an art club that held weddings. The

application never requested permission to have them. Mr. Stolzman said that weddings were an ancillary use.

 

The Chairwoman stated that she had no issue with weddings, but the Board never had jurisdiction to grant the SUP in 2014.

 

The Chairwoman noted that the zoning ordinance allows non-profit events by SUP in the village commercial district. Mr. Stolzman responded that the ordinance was unclear, weddings were an ancillary use to an art club, and weddings occurred at restaurants in Town. Mr. Marcello stated that an art center is defined in the Town code as a facility use for arts instruction, promotion, display, or sale. Ancillary use is defined as the use of land, or a building, or portion thereof customarily incidental and subordinate to the principal use of the land or building located on the same lot as the principal use. Accessory use shall not be permitted without the principal use to which it was related.

 

Mr. Marcello said that it was clear that a SUP and variance could not be issued for the same property, and the Board did not have the authority to grant the SUP. He said that the same attorney filed the second identical petition, which demonstrated that the applicant was aware of the annulment of the 2014 SUP.

 

Mr. Alzaibak asked if the 2014 SUP would be considered valid if the Board overruled the violation. The Chairwoman replied in the affirmative. Mr. Alzaibak was supportive of overruling the violation, and asked who was challenging the validity of the SUP. The Chairwoman responded that the Building Official and Town Solicitor were. She also mentioned that the lack of proper notice was an issue.

 

Ms. Hilton opined that the Board didn’t have the authority to grant the SUP.

 

The Chairwoman stated that the 2014 decision should not be relied upon due to the Board’s lack of authority. Mr. Alzaibak asked if there was any relief the Board could grant. Mr. Marcello replied in the negative, this was a court matter.

 

Mr. Stolzman said that the Town’s failure to enforce the rescindment of the SUP for seven (7) years should serve to uphold the approval of the SUP.

 

The Board took no further input from the applicants.

Mr. Alzaibak was concerned about the Town’s mistake, and opined that the applicant should be allowed to continue holding weddings at the subject property.

 

Ms. Taylor Humphrey acknowledged that the issue was caused by the Board, but was not confident that the Board was the appropriate entity to make the decision. She noted lack of clarity surrounding the matter of the appeal period extension. The Chairwoman took issue with the matter of missed deadlines. Mr. Collins was unsure, adding that it was impossible to make a determination. Mr. Jackson concurred.

 

Ms. Taylor Humphrey opined that the SUP was invalid. Mr. Collins stated that the Board had to follow the law and uphold the violation. Mr. Jackson agreed. The Chairwoman opined that the Board could not uphold the unlawful SUP.

 

The Chairwoman made a motion to uphold the violation and deny the petition. Mr. Jackson seconded the motion.

Mr. Marcello stated that the record speaks for itself. Ms. Taylor Humphrey replied that she would be willing to accept the record and leave the matter up to the court. Mr. Jackson agreed.

 

The motion passed. Voting in favor of the motion were: Ms. Gescheidt, Mr. Collins, Ms. Taylor Humphrey, and Mr. Jackson. Voting against the motion was: Mr. Alzaibak.

 

 

Submitted by: Tara Ferreira                                              Approval Date: June 1, 2022    Tara Ferreira