TOWN OF TIVERTON
ZONING BOARD OF APPEALS MINUTES DECEMBER 7, 2022
The following petition was received and heard by the Tiverton Zoning Board of Appeals on Wednesday, December 7, 2022 at 7:00 p.m.
Members present: Vice Chairman David Collins, Mr. John Jackson, Mr. George Alzaibak, Ms. Jennifer Hilton, and Mr. Edwin Schober.
Also present were: Mr. Michael Marcello, Esq., Town Solicitor, Mr. John Hoyle, Jr., Building/Zoning Official, and Ms. Mary-Ann Escobar, Court Stenographer.
1) Call to Order & Roll Call:
The Vice Chairman called the meeting of the Tiverton Zoning Board of Appeals to order at 7:57 p.m.
2) Appeal:
An Appeal Petition has been filed by Colbea Enterprises, L.L.C. 695 George Washington Highway, Lincoln, RI 02865 for an Appeal of Action from the Planning Board denying master plan approval and Article XX building plan review dated September 28, 2022, Book 1932, page 79 for 0 Souza Road, Tiverton, RI 02878 (Plat 119-Lot 624) GC (General Commercial) and Pedestrian Friendly Destination (PFD) Zoning District. The project being appealed is to construct a 3,600 square foot convenience store with
drive-through coffee shop and gas station.
DECISION: Rob Stolzman, Esq., of Adler Pollock & Sheehan appeared before the Board on behalf of the petition. The applicant was sworn in.
The Vice Chairman explained that the entire application history was under consideration by the Board. He asked for the record if the applicant had agreed to the December 7 meeting. Mr. Stolzman replied in the affirmative. Mr. Marcello mentioned the time clock and asked for the record if the applicant had agreed to the meeting date. Mr. Stolzman replied in the affirmative.
Mr. Marcello asked if there were any objections to the Tiverton Planning Board
(PB) decision. Neither Karen Benson, Esq., representing Preserve Tiverton, nor Mr. Stolzman raised an objection.
Mr. Stolzman stated that the errors the PB made were: denying both the Master Plan and the Design Plan Review (DPR) applications, and the Form Based Code was not codified into the zoning regulations, and therefore, the Pedestrian Friendly District (PFD) was not implemented properly. Mr. Stolzman said that the Findings of Fact made by the PB referenced the testimony of many witnesses but lacked factual testimony by experts in reference to environmental and traffic concerns.
Mr. Stolzman said that the PB findings regarding traffic were incorrect. The applicant’s engineer maintained that the conditions were safe, and although the level of service would decrease the road and intersection would be functional. Mr. Stolzman stated that the PB hired an engineer to peer-review the submitted report and supported its conclusions.
Ms. Benson said that residents have the right to testify and many have noticed and testified to flooding in the road. Mr. Marcello commented that the PB decision did not reference this testimony, but did reference that both the PB’s and applicant’s experts were in agreement.
Todd Romano, Esq., representing the Planning Board, stated that the Planning Department issued a memo that the Town Council property adopted the PFD, and since the application shows the PFD it was a non issue. He said that the PB found the project inconsistent with the Comprehensive Community Plan (CCP).
Ms. Hilton remarked that the gas pump portion of the project was by-right upon receipt of a Special Use Permit (SUP) by the Zoning Board. Mr. Romano responded that the PB had to determine if the proposal was consistent with the CCP and the zoning ordinance. Mr. Alzaibak said that the PB only had the right to review the proposed convenience store, not the gas station.
The Vice Chairman pointed out that there were no zoning ordinances in place to protect the nearby Osborn-Bennet Historical District. Mr. Alzaibak asked if the PB did not approve of the project, what could be built in the lot. Mr. Romano responded that the concerns were not a matter of use, but of design. Mr. Alzaibak inquired if that was deliberated upon at the PB meeting. Mr. Romano replied in the affirmative. Mr. Marcello noted that specific details such as design were not part of the Master Plan stage of review.
Ashley Sweet, Town Planner, explained that the Findings of Fact had higher standards of approval for the DPR than for the Master Plan. Mr. Marcello noted that if the Board ruled to grant the appeal, it would overturn the PB’s denial of both the Master Plan and DPR.
Mr. Alzaibak inquired if the PB worked with the applicant regarding the design. Ms. Sweet replied that the applicant was not willing to move the building and the DPR approval was very broad and must take many things into account.
Mr. Marcello asked if it was a procedural error for the PB to deny both the Master Plan and DPR. Ms. Sweet answered that the ordinance wasn’t very clear.
The Vice Chairman asked for public comment.
Thomas Snell, of 245 King Road, said that he hopes the Board would uphold the PB’s decision.
Renee Jones, of 161 Highland Road, noted that the General Commercial district allowed many things and the applicant was only willing to make changes up to a point.
Mr. Stolzman stated that the CCP shows the subject property in the General Commercial district and not in the Osborn-Bennet Historical District. He said that the applicant wanted to work with the Technical Review Committee for the design elements for the Preliminary Plan. Mr. Stolzman stated that the applicant was willing to modify design elements of the project, but due to existing easements on the property the layout of the proposal could not be altered.
Susan Anderson, of 1137 Main Road and Chair of the Historic Preservation Advisory Board said that the Osborn-Bennet Historical District was federally recognized and the subject property was visible from that district.
Mr. Stolzman, Ms. Benson, and Mr. Romano were agreeable to closing the public hearing and continuing the matter.
3) Discussion and Potential Vote Related to the Above Referenced Appeal
The Vice Chairman made a motion to close the public hearing and continue the
matter to the January 4 meeting for deliberations and decision. Mr. Alzaibak seconded the motion. The motion was unanimous. Voting in favor of the motion were: Mr. Collins, Mr. Jackson, Mr. Alzaibak, Ms. Hilton, and Mr. Schober.
4) Adjournment
Mr. Schober made a motion to adjourn the meeting at 10:13 p.m. (Whereupon the Zoning Board of Review meeting ended at 10:13 p.m.)
Submitted by: Tara Ferreira Approval Date: February 1, 2023 Tara Ferreira