TOWN OF TIVERTON
ZONING BOARD OF APPEALS MINUTES JANUARY 4, 2023
The following petition was received and heard by the Tiverton Zoning Board of Appeals on Wednesday, January 4, 2023 at 7:00 p.m.
Members present: Vice Chairman David Collins, Mr. John Jackson, Mr. George Alzaibak, Ms. Jennifer Hilton-Cavanagh, 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 8:07 p.m.
2) Pending Matters
2a) Appeal Continued from December 7, 2022:
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. (No further testimony will be taken by the Board as the public hearing was completed at on 12/7/2022 and by agreement of the parties)
DECISION:
Finding #1: The proposed development is consistent with the town comprehensive plan and/or has satisfactorily addressed the issues where there may be inconsistencies.
The Vice Chairman was concerned that the Tiverton Planning Board (TPB) found
the project inconsistent with the comprehensive plan based on the location of the project within several hundred feet of the Osborn-Bennet Historical District. He said that there were no requirements in the Zoning code that applied to property within the vicinity of a historical district. Mr. Alzaibak agreed and pointed out that the subject property was not located within the historical district. Ms.
Hilton-Cavanagh agreed, and said that a newly constructed house had been developed in between Sousa Road and the Osborn-Bennet Historical District.
The TPB decision mentioned visible quality or design; the project didn’t follow the character of the neighborhood. Mr. Alzaibak opined that nothing developed on the lot would fit into the neighborhood. Mr. Jackson pointed out that the subject property was zoned General Commercial and the record shows that the Technical Review Committee (TRC) was going to meet with the applicant to discuss the design details of the project. The Vice Chairman stated that the architectural design of the project should be encouraged and recommended to fit in with the neighborhood but wasn’t required. He considered this finding to be an error of the TPB’s decision.
Finding #2: The proposed development is in compliance with the standards and provisions of the town zoning ordinance
The TPB decision denied the application over concerns of traffic and noise. Mr. Alzaibak pointed out that the TPB’s expert and the applicant’s expert came to the same conclusions regarding traffic, and the TPB’s decision did not rely on their expert’s report.
Finding #3: There will be no significant negative environmental impacts from the proposed development as shown on the final plan, with all required conditions for approval.
The Vice Chairman stated that the TPB decision mentioned litter. Mr. Marcello said that the TPB decision cites a letter from the Tiverton Litter Committee as the only evidence for this finding. Ms. Hilton-Cavanagh considered this to be an error of the TPB.
For the record, the Vice Chairman confirmed that the Board considered the Pedestrian Friendly District was valid and applicable to the lot.
The Vice Chairman cited the health and safety issues brought up in the TPB
decision regarding gasoline. He stated that there were no specific standards or data provided by the decision.
The Vice Chairman stated that the TPB decision mentioned violent crime and only neighbor testimony was relied upon as evidence. Mr. Marcello said this matter was not part of Master Plan review.
Mr. Marcello pointed out that the TPB denied the Development Plan Review (DPR) along with the Master Plan but the DPR could still be re-initiated. The Vice Chairman stated that the Board could find the TPB in error by denying the DPR at the Master Plan stage, but the DPR could be reinstated for the Preliminary Plan review. The Board agreed.
Mr. Jackson made a motion that the Tiverton Planning Board’s decision denying the Master Plan was not supported by the evidence of record. Mr. Schober seconded the motion. The motion passed unanimously. Voting in favor of the motion were: Mr. Collins, Mr. Jackson, Mr. Alzaibak, Ms. Hilton-Cavanagh, and Mr. Schober.
2b) Appeal:
An Appeal Petition has been filed by Jim Long on behalf of Tiverton Rec
L.L.C. 300 Industrial Way, Tiverton, RI 02878 for an Appeal of Action from a Cease and Desist Order from the Building/Zoning Officer dated October 6, 2022 related to uses not permitted that are inconsistent with indoor recreational center. (i.e. conventions, concerts, car shows, and retail sales events).
Members present: Chairwoman Lise Gescheidt, Vice Chairman David Collins, Ms. Wendy Taylor Humphrey, Mr. George Alzaibak, Ms. Jennifer Hilton-Cavanagh, and Mr. Edwin Schober.
DECISION: Daniel Reilly, Esq., and Jim Long of Tiverton Recreation, LLC dba Longplex appeared before the Board on behalf of the petition. The applicants were sworn in.
Mr. Reilly stated that events were held at Longplex and the Zoning Official considered some events permitted and some prohibited. He said the zoning ordinance didn’t specify what indoor versus outdoor events were, and so this was prejudicial.
The Chairwoman noted that the cease and desist letter cited a number of events and asked if licenses were obtained. Mr. Long replied in the negative. The Chairwoman pointed out that three (3) events consisted of third parties selling merchandise and inquired if the owner received financial benefit. Mr. Long responded in the negative, the third party sellers only paid a rental fee for the space.
Mr. Alzaibak said that during the time of development the use of the lot was specifically determined, and he did not consider these events to be permissible under its allowed use. Mr. Reilly replied that the use of indoor recreation for children is the continued use, and the zoning code shows the other events consistent with this use.
The Chairwoman opined that the events were all recreational and related to recreation. Ms. Hilton-Cavanagh agreed, especially if the zoning code did not define the term recreation.
Todd Romano, Esq., of Lewis Brisbois Bisgaard & Smith LLP, appeared before the Board on behalf of the Town. He said that the building was being used like a convention center. Mr. Romano stated that the events in which merchandise such as comic books, clothes, and shoes were sold should be considered a retail and not recreational use.
Mr. Alzaibak questioned if any public complaints were received. Mr. Hoyle replied in the affirmative, and stated that the Building and Zoning Office was concerned with parking capacity and safety on the property. The Chairwoman asked if any outdoor activity had been observed. Mr. Hoyle responded in the negative, just the parking concerns.
The Chairwoman took issue upholding the notice of violation since the cited events were held indoors. She noted the problematic nature of the issue since multiple events and uses were included on the notice of violation. The Chairwoman considered selling sneakers as a recreational use. Mr. Collins did not think the ordinance was specific enough to make a clear determination.
Mr. Alzaibak made a motion to uphold the zoning officer’s decision that the cited uses were in violation of the property’s permitted use.
The Chairwoman made a motion to reverse the notice of violation because of the
lack of clarity of the zoning ordinance; it was impossible to decide if the appellant’s conduct had been shown to violate the ordinance due to the four (4) separate events cited in the violation. Ms. Hilton-Cavanagh seconded the motion. The motion passed 3-2. Voting in favor of the motion were: Ms. Gescheidt, Mr.
Collins, and Ms. Hilton-Cavanagh. Voting against the motion were: Ms. Taylor Humphrey and Mr. Alzaibak.
3) Adjournment
The Chairwoman made a motion to adjourn the meeting at 10:35 p.m. (Whereupon the Zoning Board of Review meeting ended at 10:35 p.m.)
Submitted by: Tara Ferreira Approval Date: June 7, 2023 Tara Ferreira