TOWN OF TIVERTON

ZONING BOARD OF REVIEW MINUTES JUNE 7, 2023

The following petitions were received and heard by the Tiverton Zoning Board of Review on Wednesday, June 7, 2023 at 7:02 p.m.

Members present: Chairwoman Lise Gescheidt, Vice Chairman David Collins, Mr. John Jackson, Mr. George Alzaibak, and Mr. Edwin Schober.

Also present were: Mr. Michael Marcello, Esq., Town Solicitor, and Ms. Mary-Ann Escobar, Court Stenographer.

1) Call to Order & Roll Call

The Chairwoman called the meeting of the Tiverton Zoning Board of Review to order at 7:02 p.m.

2) Pending Matters

2a) Clarification on 1/4/2023 Petition:

A petition has been filed by Alfred A. Sousa, 51 King Road, Tiverton, RI 02878 for a Dimensional Variance at 51 King Road, Tiverton, RI 02878 (Plat 516-Lot 107) in a R-80 Zoning District to seek relief pursuant to Article V section 1 Lot Width Dimensional Table, requiring that the lots be 200 feet wide at the front yard setback of the proposed property/lot. Lot A width variance of 32 feet where 168 feet are proposed and 200 feet is required and Lot B width variance of 9 feet where 191 feet are present and 200 feet is required. Relief is requested pursuant to Article XVII, Section 2.

DECISION: Alfred A. Sousa, owner, and Cort Chappell, Esq., appeared before the Board on behalf of the petition. The applicants were sworn in.

Mr. Chappell explained that the proposal was originally approved for a nine (9) foot lot width variance. The Planning Board wanted clarification on whether the Zoning Board approved of a nine (9) foot lot width variance at the existing building setback or a fifty-three (53) foot lot width variance at the fifty (50) foot minimum building setback.

The Chairwoman inquired about prior examples of the situation. Mr. Chappell replied that there were three (3) lots that had been granted building permits that were not two-hundred (200) feet wide at the fifty (50) foot setback.

The Chairwoman asked for public comment.

Elizabeth St Ours, of 101 Blueberry Lane brought up concerns about the right of way in the vicinity of the proposal.

The Board took no further input from the applicants and there were no comments from the audience. The Chairwoman closed the public hearing.

Mr. Alzaibak made a motion to approve the proposal. Mr. Collins seconded the motion. The motion was unanimous. Voting in favor of the motion were: Ms.

Gescheidt, Mr. Collins, Mr. Jackson, Mr. Alzaibak, and Mr. Schober.

2b) Special Use Permit or in the alternative Use Variance:

A petition has been filed by John Cottrell, 35 Main Road, Tiverton, RI 02878 for a Special Use Permit, or in the alternative a Use Variance, at 857 Main Road, Tiverton, RI 02878 (Plat 117-Lot 102) in a R-30 Zoning District to seek Mixed Use – Applicant desires to continue a mixed use of this property that is more conforming than that which has been present at the property for many years. The premises had been home to a vehicle repair, the applicant proposes to operate a residential contractor company and to clean up the premises. Special Use Permit is requested under Article XIV, Section 7(b)(1) and Article XVI. In the alternative, a Use Variance is requested under Article XIV, Section 7(b)(2) and Article XVII.

DECISION: John Cottrell, owner, and Cort Chappell, Esq., appeared before the Board on behalf of the petition. The applicants were sworn in.

Mr. Chappell stated that the property was bought by Mr. Cottrell as a commercial lot but the Town’s records show it zoned R-30. He explained that by special use permit (SUP) the Zoning Board could approve of a similar nonconforming use if the effect to the neighbors would be decreased. The existing nonconforming use was a car repair and tow company, and the proposed use was a contractor business.

Mr. Chappell pointed out that the proposed use would create less noise and odor, no additional lighting would be required, and the property would be cleaned up.

Mr. Collins asked what kind of activity the business would do on the property. Mr. Cottrell replied that it would be used as an office and storage area with counter and cabinet displays. Mr. Cottrell noted that the commercial trucks were not very large, were not diesel, and most work or viewings would be done off-site.

Mr. Chappell said that the existing and proposed uses were similar because they were both in the service industry and the types of businesses were generally classified within the same category in the ordinance.

The Chairwoman asked for public comment.

Howard Passwater, of 36 Audet Street was in support of the petition and considered that a renovation of the property would be an improvement.

J. Nathan Godfrey, of Newport Appraisal Group was considered an expert witness by the Board. He reviewed the site and determined that the petition met the criteria for the SUP.

The Board took no further input from the applicants and there were no comments from the audience. The Chairwoman closed the public hearing.

Mr. Collins was in favor of granting the SUP. Mr. Alzaibak agreed, he thought the uses were similar enough to meet the standards of the SUP. The Chairwoman opined that the use was less offensive.

The Chairwoman made a motion to approve the petition and adopt the Findings as outlined: the public welfare would be served, the use would not be a nuisance, no complaints or objections were received, and the proposal was compatible with the Comprehensive Plan. Mr. Alzaibak seconded the motion. The motion was unanimous. Voting in favor of the motion were: Ms. Gescheidt, Mr. Collins, Mr.

Jackson, Mr. Alzaibak, and Mr. Schober.

2c) Dimensional Variance:

A petition has been filed by Cort B. Chappell for Leigh Feldman, PO Box 8, Portsmouth, RI 02871 for a Dimensional Variance at 308 Riverside Drive, Tiverton, RI 02878 (Plat 301-Lot 134) in a R-40 Zoning District for

enlargement of a residential structure on a non-conforming lot (addition). Relief is sought under Article XIV, Non-Conforming Development, Section 5, and Article V, Section 1, District Dimensional Regulation setback.

DECISION: Leigh Feldman, owner, and Cort Chappell, Esq., appeared before the Board on behalf of the petition. The applicants were sworn in.

Mr. Chappell explained that the proposal was for a fifteen (15) foot variance for the front yard setback. He said that the least relief necessary was being requested, most of the proposed addition would be built above the existing deck, and the project would provide egress to the second stairwell.

Mr. Alzaibak stated that the proposed deck looked better than the existing one and the building would be safer with the addition of a second egress.

Mr. Collins inquired if the property would be connected to the new sewer system on Riverside Drive. Ms. Feldman replied in the affirmative.

The Chairwoman asked for public comment. The Board took no further input from the applicants and there were no comments from the audience. The Chairwoman closed the public hearing.

Mr. Alzaibak noted that the proposal fit the neighborhood and other waterfront property. Mr. Collins thought the petition met the requirements.

The Chairwoman made a motion to grant the variance due to the hardship being of no fault of the applicant’s and caused by unique circumstances of the Sunderland right of way, and the petition wouldn’t alter the character of the neighborhood. Mr. Schober seconded the motion. The motion was unanimous. Voting in favor of the motion were: Ms. Gescheidt, Mr. Collins, Mr. Jackson, Mr. Alzaibak, and Mr.

Schober.

3) Appeals from Decision of Zoning Official:

3a) Cease and Desist Notice (Earth Removal License):

An appeal filed by Highland Ridge Farm, LLC, 536 Highland Road Rear, Tiverton, RI (02878) (Plat 310-Lot 112), of Cease and Desist Notice issued by the Tiverton Building/Zoning Official on March 22, 2023. The Cease and Desist Notice was issued pursuant to Zoning Ordinance, Article XVIII,

Section 6 (b); the appeal of the Cease and Desist Notice is pursuant to Zoning Ordinance, Article XV, Section 4(a).

3b) Cease and Desist Notice (Survey Plan):

3c) Cease and Desist Notice (Retail and/or Wholesale Sales and/or Storage): An appeal filed by Highland Ridge Farm, LLC, 536 Highland Road Rear,

Tiverton, RI (02878) (Plat 310-Lot 112), of Cease and Desist Notice issued by the Tiverton Building/Zoning Official on March 22, 2023. The Cease and Desist Notice was issued pursuant to Zoning Ordinance, Article XVIII, Section 6 (b); the appeal of the Cease and Desist Notice is pursuant to Zoning Ordinance, Article XV, Section 4(a).

3d) Cease and Desist Notice (Special Use Permit):

3e) Cease and Desist Notice (Earth Removal and Quarrying/Mining):

DECISION: Joshua Parks, Esq., of Adler Pollock & Sheehan PC on behalf of Highland Ridge Farm, LLC, appeared before the Board on behalf of the petition. The applicant was sworn in.

Mr. Schober recused himself from the matter.

The Chairwoman confirmed that five (5) cease and desist notices were issued. Mr. Parks agreed, and there were five (5) separate appeals.

Mr. Parks stated that because the Town’s building official did not have the authority to issue the cease and desist notices, the Zoning Board did not have the authority to make a determination in the matter. He continued to say that the matter was in RI Superior Court, and the Zoning Board did not have jurisdiction.

Regarding agenda item 3a) Cease and Desist Notice (Earth Removal License) Mr. Parks opined that the appellant continued the operations of the prior owners, the quarry use was not abandoned, and the cease and desist notice did not reference an article from the zoning code.

Regarding agenda item 3b) Cease and Desist Notice (Survey Plan) Mr. Parks said the extraction activities could continue and expand. Mr. Marcello asked what documentation was of record to show the intent and location of quarrying activities on the property. Mr. Parks replied that the extraction activities could occur anywhere on the property.

Regarding agenda item 3c) Cease and Desist Notice (Retail and/or Wholesale Sales and/or Storage) Mr. Parks mentioned that there were no sales being done on the property.

Regarding agenda item 3d) Cease and Desist Notice (Special Use Permit) Mr. Parks cited legal case precedent.

Regarding agenda item 3e) Cease and Desist Notice (Earth Removal and Quarrying/Mining) Mr. Parks said that a license was not required for granite quarrying and gravel removal. Mr. Marcello asked if earth removal was occurring on the property. Mr. Parks responded that some topsoil was being moved.

Todd Romano, Esq., of Lewis Brisbois Bisgaard & Smith LLP on behalf of the Tiverton Building Official said that the Board had the authority to regulate granite quarrying and earth removal. The zoning ordinance was being violated by the earth removal being performed on the property, and there was no evidence of intended excavation for quarrying purposes.

Randall Souza Esq., of Kelly, Souza, & Parmenter PC on behalf of the abutters and neighbors in proximity commented that the noise, traffic, and dust from blasting, rock crushing, and heavy machinery affected neighbors beyond a two-hundred

(200) foot radius.

The Chairwoman stated that the hearing would remain open.

The Chairwoman made a motion to continue the matter to June 22 at 7:00 p.m. without additional notice. Mr. Alzaibak seconded the motion. The motion was unanimous. Voting in favor of the motion were: Ms. Gescheidt, Mr. Collins, Mr. Jackson, Mr. Alzaibak.

4) Approval of the January 4, 2023 (ZBR and ZBA), February 1, 2023 (ZBR) and March 1, 2023 (ZBR) Zoning Board of Review and Zoning Board of Appeals Minutes.

Mr. Alzaibak made a motion to approve the minutes. Mr. Schober seconded the motion. The motion was unanimous. Voting in favor of the motion were: Ms.

Gescheidt, Mr. Collins, Mr. Jackson, Mr. Alzaibak, and Mr. Schober

5) Adjournment

The Chairwoman made a motion to adjourn the meeting at 10:00 p.m. (Whereupon the Zoning Board of Review meeting ended at 10:00 p.m.)

Submitted by: Tara Ferreira Approval Date: September 6, 2023 Tara Ferreira