Zoning Board – Meeting Minutes
Wednesday, October 6, 2021 - 6:00 p.m.

(Governor Daniel J. McKee’s Executive Order 20-46 expired on July 23, 2021,

thereby requiring public bodies to meet in person.)

Please be advised this meeting was held in-person. All Zoning Board members must be physically in attendance for purposes of a quorum. Members of the public were welcomed and encouraged to attend in-person. Zoom video conferencing was provided for the public’s convenience, per Town Manager Mark J. Rooney’s Executive Order 21- 001 dated July 8, 2021.

Council Chambers

Council Chambers, Westerly Town Hall
45 Broad Street, Westerly, RI 02891

 

A.   CALL TO ORDER –

Mr. Cioppa called the meeting to order at 6:01 p.m.

 

B.   PLEDGE OF ALLEGIANCE –

Ms. Robinson lead the Board and meeting attendees in the Pledge of Allegiance.

 

C.   ROLL CALL AND REVIEW OF STAFF ATTENDANCE

 

Members Present:     Vice Chair Larry Cioppa, and Members Doug Brockway, Jeffrey Russo, and James Torres, and Alternate Member Dawn Robinson

 

Members Absent:      Chair Walter Pawelkiewicz

 

Staff Present:             Principal Planner Alyse Oziolor, Assistant Solicitor for Planning & Zoning Todd J. Romano, Esq., Minute Taker Stephanie LaSota, and Information Technology Technician Michael Harris

 

Mr. Cioppa read into the record the section of the Zoning Board of Review Rules of Procedure for hearing applications.

 

C.   APPROVAL OF MINUTES

 

1.    September 1, 2021 – Mr. Russo made a motion to approve the September 1, 2021 meeting minutes as presented. Mr. Torres seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

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

 

1.    Casey Winslow, 19 Babcock Road, AP ‘117’ Lot ‘95’Appeal of the decision of the Department of Public Works for the approval of a curb cut. (§260-38) Right to Appeal.

 

Atty. Romano said the attorney for the Winslow case submitted a letter requesting the appeal be withdrawn and no Board action was required.

 

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

 

There were no approval of decisions.

 

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

 

1.    Nordstrom, 2 Spray Rock, AP ‘169’ Lot ‘3’ Raze existing structure and construct new moving footprint forward. (§260-30) Dimensional Modifications.

 

Atty. Romano provided legal opinions on the pending questions on the Nordstrom application for the Board to discuss. He advised that the as-designed bilco doors be relocated out of the setback area if the application is approved as §260-20 Subsection E.2.b of the Zoning Ordinance states that stairways shall not extend into the required yard setback more than three feet. He recommended a condition to remove it from the east and west side of the proposed property and that new plans be submitted showing that they are removed and planned only on the north or south side of the property. He said the question was raised of whether the applicant could legally rebuild the structure once it is demolished, and in his legal opinion according to §260-32 Subsection C.2, yes, the applicant could rebuild, and the Ordinance only prohibits razing and rebuilding a structure without obtaining any required Variances. He cited two Superior Court cases that supported his decisions, including the 2012 decision from Montaquilla v. Zoning Board of Review of the City. He addressed Attorney Jerry Petros’ question at the September 1, 2021 public hearing on behalf of objecting abutters about whether Variances are required because the lot is undersized and has insufficient frontage, saying that his legal opinion according to §260-32 Subsection E.1 of the Zoning Ordinance is that neither of those things would require a Variance because a lawfully created nonconforming lot may be built upon as long as minimum requirements are met except for frontage and lot size. Atty. Romano explained to the Board that if they approved the application, they would have to go to the standard that there is no other reasonable alternative for the project, and if they deny the application, they will have to use the standard that there is some reasonable alternative to enjoy a legally permitted beneficial use of one’s property. He cited the 2003 Dowdell v. Zoning Board of Charlestown where there were alternative plans that were rejected as being unreasonable. Atty. Romano referenced the discussion on bulk and how that plays a role in the application. He said that bulk can be considered when looking at Variance standard D.3, determining if a proposal is consistent with the general characteristics of an area, but as to establishing the least relief necessary, the Board is examining the width times the length.

Mr. Torres said he believed the applicant could raze the existing property and rebuild with the Variance request as not being permitted to do so means they would have to stay in the house with no remedy. He said the existence of a single-family nonconforming structure should not restrict the applicant from using it as its intended use if it complies with the Zoning Ordinance. Mr. Torres thought the standard of proving hardship and the least relief necessary was the biggest question to consider. He said there is a clear hardship due to the width of the lot and the testimony of experts from September 1 agree that a 20-foot-wide home could be built but is not consistent with the homes in the neighborhood. Mr. Torres said he checked the work of the applicant’s appraiser, James Houle, for accuracy and found no issue with his findings in Exhibit H1, a two-page document showing various lot widths in the area. He said while there is no definitive evidence that 30 feet is the least relief necessary and the architect claimed he could shave off a bit more, he concluded that a 30-foot house was consistent with the minimum relief necessary compared to the size of other homes in the neighborhood. Mr. Torres agreed that the applicant’s home plan is the least relief necessary for its functionality. He mentioned some designed structures that appear to encroach on setbacks, such as the master porch. There was some discussion among the Board as to how to remedy that.

Ms. Robinson agreed that the house being on the rear boundary is a problem and should not stay there. She said she has issues with not seeing other building materials and other potential designs so there is not enough evidence for her to vote yes on the application.

Mr. Russo shared that he aligns with Atty. Romano’s legal advisements and the Ordinance clearly states that lot size and frontage are not required standards of a substandard lot. He said the existing building currently affects the neighborhood and is not appealing and a renovation is not the solution as it simply creates the need for more Variances. He disagreed with Mr. Torres that the master porch should be relocated on the design and said he liked the design and that the project helps the neighborhood.

Mr. Brockway commented that Mr. Torres’ summary was thorough, and he agreed with much of it. He said the applicant’s requests were small and he believes they did supply enough evidence that there are no other reasonable alternatives for a home design and so he approves of the project.

Mr. Cioppa said bulk does not come into play unless it changes the character of the area and this application does not. He believes it is the least relief necessary, considering the alternatives mentioned by the architects, and a smaller house could cause problems with utility logistics. Mr. Cioppa said razing and rebuilding the home makes the relief smaller than the existing nonconformity.

In a poll of the board, Ms. Robinson said she was not in favor of the project. Mr. Torres, Mr. Russo, and Mr. Cioppa said they were in favor of the project. Mr. Brockway said he was in favor of the project with the set of conditions that; the applicant relocate the master porch out of the setback, the applicant submit amended drawings of the plan showing the relocation of the master porch and bilco doors, and that the Zoning Official or Principal Planner is allowed to administratively accept those materials.

Mr. Brockway read into the record the details of the Nordstrom, 2 Spray Rock, AP ‘169’ Lot ‘3’ request for a five-foot left side Variance and five-foot right-side Variance to raze an existing single-family structure and build a new one in a MDR-30 Zone, including information from a Zoning Official memo dated May 26, 2021, and the details provided via testimonies given and documents shared at the September 1 and October 6, 2021 public hearings. Mr. Brockway made a motion to approve a 5-foot wide by 48-foot long west (left) side yard Variance and a 5-foot wide by 52-foot long east (right) side yard Variance to raze and replace an existing structure with a new single-family residence approximately 30 feet wide at 2 Spray Rock Road pursuant to section §260-33 Variances of the Town of Westerly Zoning Ordinance, with the following conditions: 1. Require the front porch be moved out of the east side yard setback and stamped drawings showing that change be submitted;

2. Require the bilco doors/bulkhead be removed from the west side of the home, if retained it can only be on the north or south side of the home, and stamped drawings showing the change be submitted; 3. The amended drawings showing compliance with these conditions shall be substituted as the official plans and shall replace the “Nordstrom House – Weekapaug, Rhode Island” drawings submitted by Penniman Architects on February 17 and June 1, 2021; and 4. Allow the Zoning Official or Principal Planner to administratively accept the amended stamped drawings in accord with these conditions. Mr. Russo seconded the motion. The motion CARRIED with a 4 to 1 vote with Ms. Robinson voting no.

The Board took a recess and Mr. Cioppa called the meeting back in order at 7:28 p.m.

 

2.    Genese, 103 Oak Street, AP ’48’ Lot ‘104’ (2) Lot subdivision requiring a frontage variance. (§260-33) Dimensional Variances.

 

Ms. Oziolor explained that the application requests a frontage Variance for a single-family home lot created by a two-lot subdivision of a property that had two existing residential structures. She said staff is supportive of the application and it has a positive recommendation from the Planning Board with the request that an easement be created as the rear lot requires access via the front lot.

John Genese, of 30 Bradford Road, co-owner of the properties with his brother, Anthony Genese, was present at the public hearing. He was sworn in for public testimony. Present with him was Joe Toscano, of 3 Crestview Drive, a professional land surveyor, who was also sworn in for public testimony. Mr. Toscano explained that the property is directly opposite of Ginger’s Service Station and is on a steep hill. He said the project is consistent with the 2020 Comprehensive Plan and preserves the predominant residential character and density of the neighborhood. He highlighted that the single-family residence is only short 6.7 feet of the required frontage and the project request is for the least relief necessary. The application corrects the nonconformance of two residences on one lot, he said, and the hardship for the application was not created by the current owners. The property was passed down by Mr. Genese’s father, who died in December, and Mr. Genese’s family felt now was the right time to subdivide the property. Mr. Toscano introduced into the record four photos of the current condition of the property with the shared driveway and it was marked Applicant’s Exhibit A.

Mr. Torres confirmed both lots meet the minimum lot size standard. Ms. Robinson suggested the easement details and driveway maintenance be outlined as part of the conditions of approval.

In a poll of the Board, all members were in favor of approving the application.

Mr. Brockway made a motion to close the public hearing at 7:43 p.m. Mr. Torres seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

Ms. Robinson read into the record the details of the Genese, 103 Oak Street, AP ’48’ Lot ‘104’ request for a 6.67-foot single-family lot frontage Variance for lot 1 of a two-lot subdivision, including the details provided at the October 6, 2021 public hearing, and made a motion to approve the Genese frontage Variance request for lot 1 of a two-lot subdivision to eliminate an existing two residential structures on one lot nonconformity with the conditions that; proof that an easement is written in two deeds to detail a way for the rear property to access the front, that a driveway maintenance agreement be written, and that the Zoning Official or Principal Planner be able to administratively view and approve of the conditions. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

3.    Centrica Business Solutions, AP ‘119’ Lot ‘5A’ 67 Tom Harvey Road -B Street Installation of a ground mounted solar array. (§260-34) Special Use Permit.

 

Ms. Oziolor reviewed that the application was for a ground mounted solar array in an industrial complex by the Westerly Airport.

Attorney William Nardone was present on behalf of the application along with project engineer Sergio Cherenzia, of Cherenzia & Associates, LTD., 99 Mechanic Street, Pawcatuck, Connecticut, who was sworn in for public testimony. Atty. Nardone said the panel area will be about 14,950 square feet and is entirely in an industrial park and does not require any Variances. He shared that the project was designed specifically to meet the Solar Ordinance and received Master Plan approval at the December 2020 Planning Board meeting. He introduced into the record a favorable report on the project from the Federal Aviation Administration (FAA) dated July 28, 2021 and an email from Rhode Island Airport Corporation (RIAC) dated August 3, 2021 stating that they have no further comment on the project, marked Exhibit A and B, respectively.

Mr. Cherenzia elaborated on the details of the site. He displayed an aerial map and detailed site plan for the proposed project. He said there are no wetlands restrictions, flood hazards, and no historical or unique characteristics of the land. Mr. Cherenzia described the stormwater drainage plans for the land and said they did receive the Rhode Island Discharge Elimination System (RIPDES) permit. It was dated August 16, 2021 and submitted to the Board as Exhibit C. He said there will be a security fence surrounding the arrays.

Atty. Nardone said the motivation of the array is renewable energy and to take advantage of a vacant industrial park with no nearby residential area. There was some discussion regarding the location of the panels on the ground versus the building and the permitted uses of the site. Mr. Nardone said any generated energy will be sold back to the grid. Mr. Torres questioned the benefit of the project for Westerly. Atty. Nardone explained that the project will generate significant tax revenue for the Town as right now it is taxed as vacant land. Ms. Oziolor said she could inquire with the assessor if the assessed property value increases with this addition. There was discussion on a decommissioning plan and Atty. Nardone said there is one in place. Atty. Romano reminded the Board that a plan is required by the Solar Ordinance. He said that the Board could require that the applicant submit the decommissioning plans to the Zoning Official and they could be administratively accepted. In a poll of the board, all were in favor of the application. Board members agreed to create a condition of approval that the applicant submit the decommissioning plan to the Zoning Office. There was no public comment.

Mr. Brockway made a motion to close the Centrica Business Solutions public hearing at 8:24 p.m. Mr. Russo seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

Mr. Brockway read into the record the details of the Centrica Business Solutions, AP ‘119’ Lot ‘5A’ 67 Tom Harvey Road -B Street Installation of a ground mounted solar array. (§260-34) Special Use Permit application. He described the details of the property and the testimony provided at the October 6, 2021 public hearing. He further reviewed the reasons that the application meets the standards for approval of a Special Use Permit. He made a motion to approve the Centrica Business Solutions application request for a Special Use Permit to construct a 62,203 square feet principal use ground-mounted solar facility at 67 Tom Harvey Road – B Street, with the conditions that the Planning Board confirms their review process of all the requirements of solar stormwater, soil erosion, and Ordinances have been met with a final engineering design and that there is a submission of a decommissioning plan to the Zoning Official or Principal Planner for their concurrence. Mr. Torres seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

4.    Christine & Richard Harris, AP ‘154’ Lot ‘20’, 28 Harbor Drive Permit a previously constructed deck, requesting (2) side-yard variances. (§260-33) Dimensional Variances.

 

The applicant, Christine Harris, was present via Zoom along with Deborah Grant, of Planning for the Environment, West Kingston, Rhode Island. Ms. Harris and Ms. Grant were sworn in for public testimony. Ms. Oziolor explained that the request is for a 8.5-foot left side yard Variance and a 1.5-foot right side yard Variance, and the request did receive Coastal Resource Management Council (CRMC) approval, but the Zoning Office did not receive any written justification for the requests and assumes it will be explained tonight.

Ms. Grant said that justification referenced by Ms. Oziolor was written on August 10 and was submitted to the Zoning Office with the application package as part of the project narrative addressing the five standards to approve the Variances. Ms. Grant said the request is for the least relief necessary as it is simply extending the deck out a few feet from where the home already is, and it will run flush alongside of it and allow access to the house. Ms. Grant said the deck was constructed by a friend, who is licensed in Massachusetts, but they are now working with a new contractor licensed in Rhode Island due to the stop work order issued by the Westerly Building Official. She said no work was done after the stop work order but the Building Official allowed a temporary staircase to access the deck. There was no public comment.

Mr. Brockway made a motion to close the Harris public hearing at 8:49 p.m. Ms. Robinson seconded the motion. The motion CARRIED by unanimous vote with no abstentions. In a poll of the Board, all were in favor of approving the application.

Mr. Torres read into the record the details of the Harris application request for a 8.5-foot left side yard setback Variance and a 1.5-foot right side yard setback Variance to permit the expansion of a rear deck to 16 by 30 feet and add a 5 by 14-foot stairway and made a motion to approve the Harris application. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

 

G.   PUBLIC HEARINGS - Appeal to the Zoning Board of Review – Consider, discuss, and act upon appeals.

 

1.      None.

 

H.   PUBLIC HEARINGS NEW BUSINESS - Consider, discuss, and act on application(s).

 

1. Ryan Almeida, AP ‘46’ Lot ‘57’, 87 Pierce Street (2) Lot subdivision requiring a side yard variance. (§260-33) Dimensional Variances.

 

Ryan Almeida, owner of 87 Pierce Street, of 72 Vista Circle, Providence, was sworn in for public testimony. He said he bought the subject property two years ago and is seeking lot line change that requires a Variance. In a poll of the Board, all members were in favor of approving the application. There was no public comment.

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

Mr. Russo read into the record the details of the Almeida Variance request application, including the lot details and information shared within the application and the October 6 public hearing and made a motion to approve the 8.78-foot right side yard setback Variance and a 2.96 lot frontage Variance request at 87 Pierce Street with no conditions. Mr. Torres seconded the motion. Atty. Romano noted that the motion required a correction that the use be written as ministorage rental. The motion CARRIED by unanimous vote with no abstentions.

 

2.    Deborah & Robert Alberga, AP ‘168’ Lot ‘189’, 43 Montauk Avenue Stairway change during construction requiring a front yard variance (§260-33) Dimensional Variances

 

Ms. Oziolor reviewed details of the application and said staff was supportive of it. Robert and Deborah Alberga, of 43 Montauk Avenue, were present on behalf of the application and sworn in for public testimony. Mr. Alberga explained that he and his wife believe a constructed staircase should remain at its location via a Variance as it is in the safest spot for car circulation and pedestrians. He said that they put their trust in the builders of the home, Connecticut Valley Homes, who constructed it in December after they razed an existing cottage. Mr. Alberga shared that when they received the plans, they didn’t realize that the staircase encroached in the front. There was some discussion on the contents of the original plans for the home. Mr. Russo said the Zoning Board should be looking at a copy of the original plan when considering this application. Ms. Oziolor mentioned that the as-built plan does not match what was approved by the Zoning and Building official and that information is in the project’s Zoning narrative. Mr. Brockway and Mr. Russo both agreed they need to see what was originally submitted. There was further discussion about the details of the project. Mr. Alberga explained that at one point during the project, builders said the applicants may need to request a Variance because of a staircase issue. A representative from Connecticut Valley Homes was not present at the meeting. Mr. Cioppa suggested they continue the application so staff can receive more information for the Board.

Mr. Russo made a motion to continue the Alberga public hearing to the November 3 Zoning Board meeting and requested the original plans, as-built plans, and blueprints of the home be submitted and that Connecticut Valley Homes be contacted by Atty. Romano so they attend the next meeting. Mr. Brockway seconded the motion. There was further discussion on whether to issue a subpoena to the company. Ms. Alberga wished to speak and was sworn in for public testimony. She stated that she and her husband designed the home with the company, but they did not realize that the stairway would infringe on anything, and it wasn’t until after the steps were built that they were told they needed a Variance. She said the land surveyor they used was engaged through Connecticut Valley Homes. The motion on the floor was not voted upon and Atty. Romano suggested language for a new motion.

Mr. Torres made a motion to continue the Alberga application to the November 3 Zoning board meeting, and that the Zoning attorney issue a subpoena to the surveyor and builder on behalf of the Zoning Board, and for the staff to provide to the Zoning Board everything that was needed to get a Building Permit and Zoning Certificate. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

I.      STAFF COMMENTS

 

1. Revision of Zoning Board- Rules of Procedure (5.1- Minutes) – Atty. Romano briefly reviewed the changes needed in the Rules of Procedure.

Mr. Torres made a motion to adopt the amendments to the Rules of Procedure as proposed. Ms. Robinson seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

Atty. Romano said some additional edits will be made in the future and will be reviewed by the Board before adoption.

 

J.    Applications Declared Complete, Waivers Granted and Scheduled for Public Hearing at the Wednesday October 6, 2021 Zoning Board Meeting. Informational no action to be taken.

 

1.    Lot 3C Bradley Circle, LLC, AP ‘179’ Lot ‘91A’, 18 Plimpton Road Renovations to existing non-conforming structure. (§260-34) Special Use Permit, (§260-33) Dimensional Variances.

 

2.    Stephen St. Germain, AP ‘143’ Lot ‘2’ 32 Breach Drive Deck addition (§260-33) Dimensional Variances

 

There was no discussion on the above applications. Ms. Oziolor said a new Zoning Official should be starting this month and attend the November Zoning Board meeting.

 

K. ADJOURNMENT –

Mr. Brockway made a motion to adjourn the Zoning Board meeting at 9:46 p.m. Ms. Robinson seconded the motion. The motion CARRIED by unanimous vote with no abstention

 

Respectfully submitted,

 

Stephanie J. LaSota

Minute Taker

Approved by vote of the Board on November 3, 2021