Zoning Board – Meeting Minutes

Wednesday, September 2, 2020 - 7:00 p.m.

*Pursuant to Governor Gina M. Raimondo’s Executive Order 20-25, dated April 15, 2020, this meeting was held in person and electronically via Zoom.

Council Chambers, Westerly Town Hall

45 Broad Street, Westerly, RI 02891

 

 

 

A. CALL TO ORDER

Mr. Pawelkiewicz called the meeting to order at 7:00 p.m.

 

B. ROLL CALL AND REVIEW OF STAFF ATTENDANCE

 

MEMBERS PRESENT:      Chair Walter Pawelkiewicz, Vice Chair John Ornberg, Members Doug Brockway, Larry Cioppa, and Jeffrey Russo, and Alternate Member James Torres.

 

MEMBERS ABSENT:        None.

 

STAFF PRESENT:              Director of Information Technology (IT) Marc Tate, Administrative Officer and Zoning Official Nathan Reichert, Solicitor Todd Romano, and Minute Taker Stephanie J. LaSota

 

C. PLEDGE OF ALLEGIANCE

 

Mr. Ornberg lead the pledge of allegiance. Mr. Pawelkiewicz read into the record the rules and procedures for hearing applications at the Zoning Board of Review.

 

D. APPROVAL AND REVISION OF MINUTES

 

1. August 5, 2020 workshop and regular meeting minutes – Mr. Brockway made a motion to approve the August 5, 2020 6:00 p.m. Zoning Board workshop meeting minutes. Mr. Cioppa seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

In discussion on the August 5, 2020 regular meeting minutes, the Board noted a correction to the 47 Quarry Road application that it was approved with a 5 to 0 vote with Mr. Brockway abstaining. Mr. Russo made a motion to approve as amended the August 5, 2020 regular meeting minutes. Mr. Ornberg seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

 

 

E. CHANGES TO AGENDA Review, discussion, and possible action by the Planning Board on changes to the agenda - on the order in which items will be heard or known continuances.

 

1.   Burkholder, Amaral, Barnard applications will be considered before old business.

 

Mr. Reichert said the Barnard applicant failed to provide the required public notice for tonight’s meeting and no representative was present at the last meeting. After some discussion, the Board agreed to table the Barnard application to November and place it at the bottom of the agenda. Mr. Cioppa made a motion to table the Barnard application to the November Zoning Board meeting. Mr. Russo seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

2.   Narragansett Electric Company, 14 & 18 Canal Street – Continued to the October 7, 2020 hearing.

 

Mr. Brockway made a motion to open the public hearing for the Narragansett Electric Company application and to continue it to the October 7, 2020 Zoning Board meeting. Mr. Cioppa seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

3.   Beattie, 170 Post Road, AP ‘111’ Lot ‘61C’ Ground mounted solar array, Special Use Permit (§260-34). Continued from August 5, 2020

 

Attorney Steven Surdut was present on behalf of the application and stated that they are withdrawing the application as there are additional hurdles with National Grid. Mr. Brockway made a motion to accept the withdrawal of the Beattie application. Mr. Ornberg seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

4.   Strassburger, 1 Pasadena Avenue AP ‘162’ Lot ‘125’. Addition of Flood Zone Compliant pool, pool house and deck. Dimensional Variance (§260-19)

 

Mr. Reichert explained the applicant needed time to work out some legal concerns with an abutter. Mr. Ornberg made a motion to open the public hearing for the Strassburger application and continue it to the October 7, 2020 meeting. Mr. Cioppa seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

 

5.   Quarry Hill Properties, LLC, 61 Ledward Avenue, AP ‘68’ Lot ‘48’, Ministorage w/ rooftop solar array. Dimensional Variance (§260-19), Special Use Permit (§260-34)

 

Attorney John Payne, Jr. requested a continuance due to the placement on the agenda and the heftiness of the Zoning Board’s business tonight. Mr. Cioppa expressed concern with applicants setting the Board’s agenda. Mr. Reichert said this decision stemmed from a conversation with the applicant and his own advice. Mr. Ornberg said this issue was discussed in the past that the Zoning Board agenda is getting too full and Board members prepare in advance of the meeting, studying each application. Mr. Brockway said the Board should give more consideration to having a second monthly meeting.

Mr. Russo made a motion to open the public hearing for the Quarry Hill Properties, LLC. Application and continue it to the October 7, 2020 agenda. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

F. APPROVAL OF DECISIONS

 

None.

 

G. PRE-APPLICATIONS

 

1.   Hvolbeck, 2 Leeward Avenue, AP ‘137’ Lot ‘32B’ Deck addition, Dimensional Variance (260-19)

 

No representative was present at the time the agenda item was first called or at the end of the meeting at 11:05 p.m. Mr. Brockway noted the abutter list was incorrect. Mr. Torres commented on the waiver request.

At 11:05 p.m., Mr. Russo made a motion to continue the Hvolbeck pre-application to the October 7, 2020 meeting. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

2.   Basile, 55 Sherwood Drive, AP 120 Lot 33 Accessory Apartment Special Use Permit (260-34)

 

Nina and William Westerman, of 55 Sherwood Drive, were present on behalf of the application with their future son-in-law, Matthew Basile. They requested waivers for items C, D, E, F, and G.

Mr. Russo made a motion to grant waivers to items C, D, E, F, and G for the Basile application and to set the public hearing for October 7, 2020. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

H. PUBLIC HEARINGS OLD BUSINESS

 

1.   Burkholder, 250 Church Street, AP ‘45’ Lot ‘20’ Accessory Apartment Special Use Permit (§260-34). Continued from August 5, 2020

 

Mr. Reichert commended the applicant for their patience last month in enduring a long meeting without being heard. He explained the application was for an in-law apartment in a building that is existing. There were staff questions for the Board to consider; identifying the proposed occupant, the area relative to the floor plan and the layout of the application. Mr. Reichert asked the applicant to clarify how to access the proposed apartment. The Board further discussed the structure and if there is a valid connection between the home and accessory apartment.

Dennis Burkholder, of 250 Church St, was present on behalf of the application and was sworn in for public testimony. He said he disagreed with the Zoning Official’s 2016 decision to deny a Special Use Permit for the accessory apartment. He added that he has permits for every building project and everything was created legally. The current room above the garage does not have a kitchen, he said. He said he was told specifically by the Zoning Department at that time in order to do a bedroom there it had to be an enclosed breezeway, which he did. He said he would now like to apply for the accessory apartment permit and add the kitchen. Mr. Burkholder said there is access to the top of the breezeway from the main house’s deck. He said he was in the process of building a kitchen in the unit, but it is not functioning, and he has all the legal permits for it. He said he has had inspections on the building and has all approvals. Atty. Romano said approving this Special Use Permit does not cancel any past violations and the Zoning Official can still pursue those things. Mr. Burkholder said there is a violation in place, but it has not been pursued. He said the “bedroom” is already occupied by his son. The Board voiced concerned that the applicant did not yet have an occupancy permit. Mr. Burkholder said the original building permit was for a shop and garage and subsequent permits were pulled for living spaces, but they wouldn’t grant the final one because it appears to be a kitchen, however it is not fully installed and functional. Atty. Romano clarified that if the Board grants the Special Use Permit it creates a closed period of potential violation and the Zoning Official could only enforce the prior violations. Atty. Romano provided Mr. Burkholder with the Zoning narrative and notes on the application from the Zoning Official. Mr. Burkholder argued that the stove and microwave in photographs dated June 12, 2019 were never connected and the appliances were physically not there when the building inspector was in the structure.

Mr. Cioppa said if the Board approves this then there should be a condition that the court should make the decision on whether to pursue past violations. There was further discussion of the violations and the timeframe to pursue them. Mr. Russo disagreed with Mr. Cioppa about the court condition and suggested a condition of naming an occupant to ensure it is a family member. Mr. Pawelkiewicz explained his confusion with the presence of the stove and microwave in the photos. Mr. Burkholder said it was never connected but he didn’t move it out. He said three Town officials saw it and witnessed it was not functioning, even though the room was designed for it. He said the occupant of the unit is his son, Wesley Burkholder. It was suggested as a condition of approval that within ten days the applicant submit to the Zoning Official copies of all permits for the accessory bedroom.

Mr. Ornberg said he believes he built without occupancy permit as his son’s been living there for over a year. Mr. Burkholder said they’ve been in this process for almost a year. He said he went to apply for the final permits, which is what started this process. He said he is a victim. Atty. Romano reminded Mr. Burkholder that he had an opportunity to appeal the 2016 decision after it was made and did not.

Mr. Burkholder said at that point in time whatever the Zoning Official recommends to the Board, they tend to accept, and he felt he wouldn’t have been able to achieve a lot through an appeal. He said it became a priority now to apply again. Mr. Torres asked for clarity on whether it is a legal bedroom for the home. Atty. Romano said it is at the discretion of the Building Official if the fourth bedroom can be located above the garage. Mr. Burkholder said he had many candid conversations with the Building Official about what he could build. Mr. Reichert said the Building Official and Zoning Official have discussed how to define an accessory dwelling. He said for the three years that he was the Zoning Official he was not invited into the conversation on this application. Atty. Romano read into the record the definition of dwelling. There was further discussion on the litigation of the case. Atty. Romano said it is at the discretion of the Zoning Official whether to continue litigation. Mr. Ornberg and Mr. Cioppa said code enforcement should continue and it should be a condition of approval. There was discussion on the requirements for dismantling the apartment should the current occupant vacate.

There was no public comment on the application. In a poll of the Board members, Mr. Brockway said he would vote yes with the conditions as discussed, Mr. Ornberg said he would vote yes with the stated conditions, and Mr. Russo said he is in support of the application. Mr. Torres said the applicant intended to build this as an accessory apartment and went forward despite rulings, but he will support the application as he can see the rationale but leave it up to Zoning Official to pursue legalities. He added that the Board should discuss the renewal period for the Special Use Permit. Mr. Pawelkiewicz said he would vote yes with the condition that the applicant unifies the apartment connection with the primary structure so that it meets the standards as he doesn’t think the current connection does. There was discussion about the connection to the unit from the main home.

Mr. Brockway made a motion to close the public hearing. Mr. Russo seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

Mr. Cioppa read into the record the details of the application and made a motion to approve the request for a Special Use Permit pursuant to Section 260-34 of the Zoning Ordinance with the following conditions; that the Zoning Official is strongly recommended to continue to pursue the enforcement action already started, that the permit occupancy be for the son of the applicant, Wesley Burkholder, that the Special Use Permit expire after one year, upon the sale of the property, or after the family member moves, that periodic inspections of the apartment space be conducted with proper notification to and permission from the applicant, that the applicant will provide all approved permits to the Zoning Official within ten days, there will be an updated fire inspection of the property, and that upon expiration of the Special Use Permit the stove and appropriate connections will be removed to the source. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote.

 

Mr. Pawelkiewicz called a five-minute recess at 8:46 p.m. He called the meeting back to order at 8:52

 

2.   Amaral, 134 Potter Hill Road, AP ‘13’ Lot ‘1-12’ Accessory Apartment Special Use Permit (§260-34). Continued from August 5, 2020

 

There was no representative present for the application. Mr. Ornberg made a motion to table the application to the October 7, 2020 Zoning Board meeting. Mr. Russo seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

3.   Carparelli Enterprises LLC / 7-Eleven, 34 Post Road, AP ‘98’ Lot ‘105’ Sign Permits, Dimensional Variances (§260-19). Continued from August 5, 2020

 

Mr. Reichert gave a summary of the application, which he said was complex. He said page two of the Zoning narrative explains the application for a commercial sign quantity Variance of 13, a free- standing sign quantity Variance of 10, a merchandising sign quantity Variance of 3, a pylon size Variance of 32 square feet, and a merchandising wall sign size Variance of 10.38 feet. He provided more details for each request. He noted that this property has many illegal signs and it is appropriate for a condition of approval to reiterate that in the Sign Ordinance temporary signs are not permissible.

Atty. Kelly Fracassa, of 96 Franklin Street, Westerly, was present on behalf of the applicant and said he was also representing the applicant before the Rhode Island Department of Environmental Management (RIDEM) for an enforcement matter. He said that 7-Eleven and RIDEM were working out the terms of the consent order before he joined the case. They submitted it to RIDEM and their attorney at the time went out on maternity leave and they didn’t hear from RIDEM for a while and it is in their court to reply to 7-Eleven, he said.

Edwin Colgan, of 250 Michelle Lane, Groton, a field consultant for 7-Eleven, was also present on behalf of the application and sworn in for public testimony. Mr. Colgan said the stores are locally run and he oversees 11 locations, mostly in Eastern Connecticut, which are both convenience stores and gas stations. He testified that rules of signage at stores is critical and people will make that turn into his store because of a gas decision and the only way to identify the store is from a sign. You must make people aware that there is a store, as well as gas pumps, he said, and visibility from the roadway is important. Mr. Ornberg asked if he is familiar with the sign permit process. Mr. Colgan said he understands there are local permitting requirements, but he is not responsible for specific past violations. He said the responsible party would be the gasoline construction team and contractors. There was discussion on his testimony and the franchise owner’s role relevant to the Sign Ordinances. The franchise owner was not present at the meeting. Mr. Colgan said the owner is a responsible community member and the signage could easily be cleared up and that the business is compliant. He said the owner never had input into the construction model, but he would be responsible for any added signage.

Mr. Torres said one of issues with this applicant is the history of violations. He expressed concern for past violations and that the applications relevant parties should meet to discuss future decisions and local Ordinances. Mr. Ornberg agreed with Torres’ comments. Atty. Fracassa asked that he Board focus on this Variance application presented tonight and grant or deny the Variance based on the facts presented. Atty. Romano said he is hearing from the Zoning Board discussion that an educational condition is being required due to past transgressions, but he is unsure how that would be worded. Mr. Brockway had a suggestion for how to structure it. Mr. Pawelkiewicz pointed out that staff has been working on these violations for about a year and that is why they have this Variance. He also has a couple suggestions for conditions. Mr. Russo said it is not appropriate to ask the applicant to eliminate a sign from the application as Mr. Torres suggested and that the Board should be pro-business and the business owners understand what signage is required. There was further discussion on the locations of the signs. Mr. Torres said Russo made a valid point. Atty. Fracassa said it would hurt the business to remove the banner sign that changes weekly to alert customers of specials. Atty. Fracassa said the bigger and brighter a sign is the less distracted he is as a driver. He said people need to know information quickly in order to make a decision and keep their eyes on the road. There was further discussion about the necessity and purpose of the signage. There was no public comment.

In a poll of the Board, the Board members agreed to support the application with conditions. The conditions discussed were that 7-Eleven comply with RIDEM environmental standards both with infrastructure and operation, and 7-Eleven will report compliance with all DEM administrative orders and Zoning Officials.

Mr. Russo made a motion to close the public hearing at 10:14 p.m. Mr. Ornberg seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

Mr. Cioppa read into the record the details of the Carparelli Enterprises LLC / 7-Eleven application including information from a Zoning narrative dated August 27, 2020 and made a motion to approve the Carparelli Enterprises LLC / 7-Eleven application with conditions that it be known that temporary yard signs, banners, commercial flags, posters, and the like are not permitted to be displayed on this site, all RIDEM violations shall be resolved, the enforcement action must be resolved, and that an informative meeting be held with all parties as determined by the Zoning Official concerning Westerly laws for compliance, and the meeting should include a review of all Sign Ordinances, and the applicant shall be in compliance with all environmental standards both with the infrastructure and operation, and further the applicant shall report their compliance with all RIDEM administrative orders with the Zoning Office. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

I. NEW BUSINESS

 

1.    McLeod, 5 Wompag Road, AP ‘123’ Lot ‘34’ Accessory Apartment Special Use Permit (§260-34).

 

Mr. Reichert said the application meets all requirements. Colleen and George McLeod were present on behalf of application. Mary Silva, Colleen’s mother, will be living in the apartment, they said. Atty. Romano suggested that the Chairman poll the Board and direct staff to prepare a written approval to mail to the applicant in order to expedite the meeting. In a poll of the Board, all members were in favor of the application.

Mr. Russo made a motion to close the public hearing and grant a formal approval written by the Zoning staff to be recorded in the land evidence records at the next meeting and have the applicant waive the requirement for a written decision within 15 days. There was no public comment. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

 

2.    DeCaro, 28 Wells Street, AP ‘87’ Lot ‘74’ Permit operation of a Hair Salon, Special Use Permit Revision (§260-34).

 

Mr. Reichert reviewed the application. Atty. William Nardone was present on behalf of the application. He thanked the Board for extending the meeting for them. He said it is a good success story for a small business in Westerly. He said the applicant is here and hopes to continue the success of her business with additional activities allowed by Special Use Permit.

Mr. Reichert entered into the record an email from the Town Planner with an attachment with a Planning Board recommendation from December 19, 2019 and labeled it as Exhibit 1. The email says the applicant was not required to go through the Planning Board process. The letter says Development Plan Review (DPR) is not required for the project because of the minimal nature of the change. He said the letter was dated today with the attachment dated from December.

There was discussion on the beginning of this case from an enforcement perspective. Mr. Reichert said the addition is not being used as a salon, but he doesn’t have facts on the rest of the building. Mr. Brockway said their Web site states it does operate as a salon. Atty. Nardone said as to maintaining the residential character of building, the only change is enclosing a covered carport. He said the addition designed for hair and nails is not being used at all. He said he believes there is one chair in the building used for haircuts, but he’s not sure if it is today. Atty. Romano suggested the Board do a similar decision for this applicant as they did for the last application; have staff draft the decision within 15 days, waive the 15-day requirement and have it ready at the next meeting.

Cheryl DeCaro, the applicant and owner, was sworn in for public record said she said she has two stations and two chairs in the room but only one can be used at one time due to social distancing. Mr. Brockway said he would like to hear how the applicant will make the Zoning Board comfortable that violations will not occur in the future do to a perceived misuse of a past Special Use Permit approval. Atty. Nardone said if the Board will approve the extended Special Use Permit the activities conducted prior and that will continue are all allowed so there will be no violation. Mr. Torres asked why a violation occurred. Ms. DeCaro said she didn’t know she couldn’t add a hair chair to her business. She said she wasn’t hiding it. As her business grew, she talked about adding an addition before Covid-19 hit and she didn’t know if she would add the hair chair to the addition or have it in the relaxation room. She said she knew she wanted to make good use of her time and do the addition while they were closed. Mr. Brockway asked if she had conversations about the history with staff and she said yes, as soon as she realized the mistake, she called the Zoning Office and apologized. Mr. Reichert said Assistant Zoning Official Cindy DiMaggio asked what it would be used for and Ms. DeCaro’s husband answered a “waiting room” and then an electrical permit was pulled with the reason listed as finishing a hair salon application. He said it appeared to Zoning staff that the applicant was misleading and after that they had a meeting to get the application on track. There was no public comment on the application. In a poll of the Board, all members were in favor of the application.

Mr. Cioppa made a motion to close the public hearing. Mr. Russo seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

Mr. Brockway read into the record the details of the DeCaro application and made a motion to approve the amendments to a previous Special Use Permit and have the Zoning Official draft an approval to be presented at the next Zoning Board meeting. Mr. Cioppa seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

 

 

J. ADMINISTRATIVE OFFICER'S REPORT

 

Mr. Reichert thanked the Board for staying late. He asked the Zoning Board to reach out to members of Town Council to pass Zoning amendments in a timely fashion. Mr. Pawelkiewicz said he reached out to the Town Council personally and suggested all Board members do the same. Mr. Brockway recommended that they keep findings of fact right down to the fact of what they must approve or deny and if there are enforcement restrictions that should be addressed last. He said weaving it in the middle is distracting at best. Mr. Reichert said the point is well taken. Mr. Pawelkiewicz said that is a good suggestion. There was discussion of violation and noncompliance issues on applications. Mr. Cioppa commented about the deadline of receiving materials and that he needs documents sooner. Mr. Reichert agreed and apologized for lateness.

 

K. CONFIRMATION OF NEXT REGULAR MEETING DATE – October 7, 2020

 

L. ADJOURNMENT –

 

Mr. Russo made a motion to adjourn the meeting at 11:15 p.m. Mr. Ornberg seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

Respectfully submitted,

 

Stephanie J. LaSota

Minute Taker

 

Approved by vote of the Board on 10/7/2020