Zoning Board – Meeting Minutes

Thursday, March 25, 2021 - 6:00 p.m.

*** Pursuant to Executive Order 20-05 dated March 16, 2020 as extended, the Zoning Board meeting was conducted 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 6:00 p.m.

 

 

B. ROLL CALL AND REVIEW OF STAFF ATTENDANCE

 

Members Present:     Chair Walter Pawelkiewicz, Vice Chair Larry Cioppa, and Members Doug Brockway, Jeffrey Russo, and James Torres,

 

Members Absent:      Alternate Member Dawn Robinson

 

Staff Present:             Zoning Official Nathan Reichert, Minute Taker Stephanie LaSota, AssistantSolicitor for Planning & Zoning Todd J. Romano, Esq., Information Technology Technician Michael Harris, and Court Reporter Meredith Fortune

 

 

D.   APPROVAL OF MINUTES

1.    None

 

 

E.   CHANGES TO AGENDA – Consider, discuss, and act upon schedule change for Applications.

1.    None

 

F.    APPROVAL OF DECISIONS - Consider, discuss, and act on application decisions referred to staff for writing.

 

1.    Ritacco, 12 Ledward Avenue, ‘67’ Lot ‘262’ Construct a (2) family structure, (§260-34) Special Use Permit, Lot frontage variance (§260-19) Dimensional Variances.

 

Mr. Cioppa made a motion to approve as written the decision drafted by Zoning staff for the Ritacco, 12 Ledward Avenue, application. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

 

G.   PUBLIC HEARINGS Continued Business - Consider, discuss, and act on application(s).

 

 

1.    Zoey Watch Hill, LLC, 14 Larkin Rd., AP ‘185’ Lot ‘30’ (Memo. K. Fracassa) (Opposition to Request) (Larkin Rd. Photos) Elevate, renovate, add a second floor with rear deck, reconfigure first floor rear deck, add a roof deck and make the home compliant with FEMA flood zone requirements  (§260-19) Dimensional Variances. Continued from December 3, 2020, January 14, February 3, and February 25, 2021

 

 

Mr. Pawelkiewicz asked the attorneys to justify their cases using the five standards the Zoning Board uses to make decisions on applications.

Attorney Kelly Fracassa, of the Naccarato & Fracassa law firm at 96 Franklin Street, Westerly, was present on behalf of the applicant, Michael Schwartz. He said the hardship is due to the characteristics of the land, adding that the lot is tiny and in a Zone that requires 40,000 square feet. Atty. Fracassa showed a photograph displaying the property’s boundaries, which was part of a submitted letter to the Watch Hill Fire District (WHFD) Park Commission. He said there is no room to expand, except to build higher. Atty. Fracassa said the property is in a velocity flood zone and the applicant did not create this hardship simply because he bought the property. He said the Zoning Board must deliberate if his proposal is reasonably necessary, as the design has the same uses and amenities that are characteristic of other properties in the area, only in a smaller scale. Atty. Fracassa said the WHFD memo cited some Superior Court cases that were incorrect as they referenced a statutory standard that was replaced 19 years ago. He read into the record from a 2004 Superior Court case to justify his argument on the hardship analysis. Atty. Fracassa also said WHFD wrongly called the project a demolition instead of a renovation.

Attorney Gerald J. Petros, of the Hinckley Allen law firm at 100 Westminster Street, Providence, spoke on behalf of his clients in opposition to the project. He said that not being able to expand a home does not constitute a hardship. Atty. Petros represented the WHFD and Watch Hill Conservancy. He said that the property has been used as a residence for more than 80 years and overlooks a beautiful shore in a historic district that is protected. He argued that living in that house is a luxury and privilege and many people would love to live there in its current situation. Atty. Petros said that Mr. Schwartz could make the home more resilient to flooding in other ways besides adding a third floor.

Atty. Fracassa called Mr. Schwartz as a witness and he was sworn in for public testimony. he thanked the Board and his future neighbors for participating in the process. There was testimony given on the current state of the home. Atty. Fracassa called witness Wayne Garrick, the project architect. Mr. Garrick was sworn in for testimony. Mr. Garrick said the proposed building is 32 feet high and three feet lower than Bay Street structures across from the property. Atty. Fracassa screen shared images from applicant’s Exhibit 30 “Larkin Road – Proposed Detail 2021.” There was discussion on the content of Exhibit 30 and how the proposed structure’s design. Mr. Garrick said the tongue and groove sheathing will stay, but the existing siding and trim is deteriorating, and will be replaced. He said the current windows are not storm rated and the new windows will have a rating greater than design pressure 30. He said the roof framing is in superb condition, but it is a good idea to replace the shingles. He further explained the details of securing the roof. There was further discussion on the construction of the peers. Atty. Fracassa asked Mr. Garrick a series of questions on the national standards for a single-family residence. Mr. Garrick said 960 square feet is the minimum size recommendation for the gross area of a single-family home. He said once they elevate the building, the structure would have 1,128 of gross square footage. Mr. Garrick said building code has minimum sizes for kitchen and bath and most bathrooms are in the 60 square feet neighborhood. He said the bedrooms are 8.5 by 15 or 16 feet long and narrower because of the constraints of the home. He said the home has average sized bathrooms and the kitchen is 80 square feet over the minimum recommendation 70 square feet. There was discussion on the potential cost to renovate the home as is and an estimate provided by Mystic River Building showed that renovations would exceed 50 percent of the appraised value of the home.

Mr. Garrick answered some questions from Zoning Board members. He said the home is not a typical single-family home, but basically a small apartment above a garage. There was clarifying discussion that the minimum gross square footage recommended by the Department of Housing and Urban Development for a single-family home did not include garage space. It was said the proposed project would have a 294 square foot garage and not the 577 square feet that exists. Ms. Robinson asked if utilities could be taken off the roof design and put inside the home. Mr. Garrick said the condensing unit must be on roof and cannot go anywhere else. He said there is only one unit and it must be above base flood elevation. He said it cannot go on the side of the home as it would increase the footprint.

Mr. Russo asked Mr. Reichert if he considered the project proposal a demolition or renovation. Mr. Reichert said he considered it an elevate and renovate project. Mr. Torres asked him his criteria he used to determine this. Mr. Reichert said the distinction was one that was created before his time with the Zoning Office. He said in the post 2012 Hurricane Sandy rebuilding more than 50 structures were affected and out of those the Federal Emergency Management Act (FEMA) grant created a standard they follow today. Mr. Reichert said elevating an existing house is considered an elevate and renovate. He said a demolition would be removing the entire structure before building. Mr. Garrick said they are lifting the existing frame two stories up and they are not changing the ceiling heights. Mr. Cioppa noted that even if this were a demolition a person could still build within the footprint if the Zoning Board granted a Variance. Mr. Reichert said if the structure were demolished the applicant would need to prove the hardship in the case and meet the current Zoning Ordinance and it would be up to the Zoning Board to approve the project.

Mr. Garrick testified that the dwelling is essentially an apartment and renovating it as is would not be an adequate single-family home. He said the height is being increased which is permissible with the Zoning regulations. He said the proposal is for three stories with two more bathrooms to be added. Mr. Garrick said the existing service to the house is more than adequate and they must change electrical panel because it is below the base flood elevation and add a new HVAC system. There was further discussion on the proposed windows and balcony. Mr. Garrick mentioned the reduced size of the first- floor deck to 115 square feet for combined total deck space of 241 square feet. Referencing the condenser unit, he said theoretically one could locate it off the deck, but he would not recommend it because of the noise, especially when locating it on the roof is permissible.

Edward Eglin, an architect residing at 8 Aquidneck Avenue, said he lived about half a mile from 14 Larkin Road and has been a seasonal resident for 50 years. He asked about the base flood elevation and how that impacted renovation plans. Mr. Garrick said the homeowner is preparing for the future and raising it higher than the minimum standard.

Malcolm Maclear, of 6 Larkin Road, asked where the existing electrical panel is located. Mr. Garrick said it is relatively low and they would want to raise it, so it is above the five-foot freeboard allowance. He further explained to Mr. Maclear that he got the 577 square foot total for the second floor by subtracting the space of the staircase.

 

At 7:57 p.m. the Zoning Board took a recess and Mr. Pawelkiewicz called the meeting back to order at 8:03 p.m.

 

Atty. Fracassa called Thomas K. Gillespie P.E., of 60 Willow Street, Mystic, CT, a structural engineer, as a witness. Mr. Gillespie shared his professional and educational background and his experience on the project. He said two soil borings were conducted at the site by a company from Glastonburg, CT. Mr. Gillespie explained the type of soil found and said the geotechnical engineer recommended using a helical screw pile for the deep foundation. He showed images of helical screw anchors. Mr. Gillespie further described the function of the screws and history of their uses. A series of photos from Mr. Gillespie were entered into the record.

Ms. Robinson asked Mr. Schwartz if anyone has offered to purchase his property since December of 2019 and he said no. There was more conversation about the size of the existing and proposed decks. Mr. Garrick said drawings were resubmitted about a month ago. The edited plans showed that the lower deck was reduced to 115 square feet, but the upper deck was modified slightly so it would not be larger than the existing one so that Variance issues disappears.

There was further discussion on FEMA requirements on base flood elevation of 13 feet and the home’s proposed height determination.

Stephen Hayes, of 2 Larkin Road, spoke in opposition of the application. He said he is concerned that the applicant is seeking too much relief for the project and he could renovate it within its existing size.

George Nicholas, of 141 Bay Street, asked about design requirements of the project due to its location in a historic district. Mr. Reichert said the property is in an LDR-43 Zone and there are no historic standard requirements. Mr. Schwartz said they did add a picket fence into the latest design to replace the existing chain link fence. He said he concerned about the details of the project and striving to be a good neighbor.

Mr. Maclear, of 6 Larkin Road, said he submitted a letter to the Zoning Office. Mr. Reichert said the past letter was not yet formally entered into the record and Mr. Maclear’s letter received today was not distributed to the Board due to its late arrival. Mr. Maclear read his letter dated March 25 into the record. He read that he objected to the project due to its impact to the Watch Hill Historic District.

Mr. Eglin, of 8 Aquidneck Avenue, spoke in objection to the proposal. Mr. Eglin screen shared photographs of the existing and planned buildings. He said the applicant’s shared photos do not accurately represent what is proposed. Mr. Reichert asked that Mr. Eglin forward his presentation to the Zoning Office so it could be entered into the record.

Mr. Schwartz said Mr. Eglin did not use the final submitted drawing in his presentation. Mr. Eglin said he would do the same analysis on the updated renderings.

Joan Beth Brown, a moderator for WHFD, of 5 Ninigret Avenue, asked if letters submitted previously will be read into the record tonight. Mr. Reichert said all WHFD letters received have been entered into the record and distributed to the Board. Ms. Brown said the applicant compared the structure to building 124 but that is in a commercial district and almost immediately after it was built, Westerly worked very hard to make sure a building like that would not be built again. She said regulations were specifically created to protect the historic nature of the community.

Atty. Petros said he did not want to repeat his opening statements but said the primary question for the Board to consider is not whether the applicant would enjoy a three-story home with a roof deck more than the current home, but if he has established a hardship. Atty. Petros said a desire for a larger home does not meet the hardship standard for a dimensional Variance. He said the applicant can change the building and make it more resilient without building a third floor. He also argued that it is a demolition as the structure will be all new except for the existing framing. Atty. Petros said the applicant has not satisfied the standards for hardship and the application violates rules for tearing down and rebuilding.

Atty. Fracassa said the property is basically an apartment above a garage. He said legally anyone may upgrade their property even if they already have a beneficial use. Atty. Fracassa said the proposed structure is unique because of its small and misshapen lot and arguments of neighbors fall flat because of the percentage of home to property in comparison. He said regarding any potential impact of the project on the historic Watch hill Carousel, neighbors are projecting their own personal preferences onto it. He said the home will be more valuable, but it is not the primary reason for the proposal. He addressed the statements of Atty. Petros and WHFD that owning the property at 14 Larkin Road is a privilege or a benefit and not a hardship. Atty. Fracassa said Mr. Schwartz has property rights and it is in his rights to move forward with the project despite any existing benefits of the property. He said the objectors’ argument on Zoning Ordinance §260-32 Nonconformance does not hold up because if the project were a demolition, and it is not, the applicant could still build by applying for a Variance.

Atty. Romano clarified that Mr. Garrick represented new plans submitted after the initial public hearing and there is no request to expand the existing footprint.

In a poll of the Zoning Board, Mr. Cioppa said he would support the application and included the reasons in the decision template, such as that the project does not constitute a demolition and it fits with the character of the area, which has mixed uses of recreation, businesses, and multi-family and single- family housing. He said the renderings look beautiful and the property will be an asset to Watch Hill.

Mr. Cioppa said he did not see any evidence that the project will negatively affect the carousel. Mr. Russo said he supports the applicant’s request and Mr. Schwartz has met most if not all the standards of hardship. Mr. Brockway said he is not in favor of the application. He said the property has stunning views and is nice as it is, and he is not convinced that a third floor is necessary. Mr. Torres thanked the attorneys on both sides. He said he had a problem with the applicant using FEMA standards as justification for the application. He said the applicant does have the right to use the property for its permitted use and so he is in favor of application. Mr. Torres said he visited the site and does not feel that the applicant is requesting too much as he did not request the full permitted 35-foot height. He commiserated with the neighbors’ feelings that the project will hinder views and denigrate the area, but the renderings look spectacular, and it will be an upgrade from what exists today, and he does not think the impact will be detrimental. Mr. Torres said denying the application would be more than a mere inconvenience because he is asking for a modest house granted in a limited amount of space. Ms. Robinson said she is generally in favor but agrees with Mr. Brockway that this particular property will impact the area. She said the home has already passed through several owner and any renovation will add value. She requested adding landscape for softening the screening between the home and carousel. She said she is grateful to Mr. Schwartz for persisting through the process. Mr. Pawelkiewicz said he would vote in favor of the application. He said he visited the home and believes the application was well presented with Mr. Garrick articulating the key design issues. Mr. Pawelkiewicz highlighted its consistency with the Westerly Comprehensive Plan as far as increasing the structure’s resiliency, especially with replacing the existing cesspool. He said just because the applicant knew he purchased an undersized lot is immaterial according to the Rhode Island Supreme Court. He said because of the attention to detail in the exterior design, the proposed structure will fit in with the surrounding area and not alter the character of the area.

Mr. Cioppa made a motion to close the public hearing at 9:59 p.m. Mr. Russo seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

Mr. Cioppa asked for an opportunity to have staff go through his notes and write the motion. Mr. Cioppa made a motion to allow Zoning staff to write the decision for 14 Larkin Road approving the Variance request to present at the April 7 Zoning Board meeting for a vote by the Board. Mr. Russo seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

H.   STAFF COMMENTS

 

There were no additional staff comments.

 

I. ADJOURN –

Mr. Brockway made a motion to adjourn the meeting at 10:03 p.m. Mr. Russo 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 TBA