Zoning Board – Meeting Minutes
Wednesday, September 1, 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.)

Zoom video conferencing was provided for the public’s convenience, per Town Manager 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. Pawelkiewicz called the meeting to order at 6:00 p.m. He read into the record the Zoning Board of Review Rules and Procedures for hearing applications.

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, and Alternate Member Dawn Robinson

 

Members Absent:      None.

 

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

 

C. APPROVAL AND REVISION OF MINUTES

1. August 4, 2021 – Mr. Brockway made a motion to approve the August 4, 2021 Zoning Board meeting minutes as presented. Mr. Russo seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

D. 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. 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. Continued to 09/01/2021, 10/6/2021

            Mr. Russo made a MOTION to continue the Winslow application to the October 6, 2021 Zoning Board meeting. Mr. Torres seconded the motion. 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 explained that the Alberga case will be continued to October and does not require a motion or a vote as the hearing as not been opened yet. Mr. Pawelkiewicz clarified that the continuance was due to the applicant still needed to send notice to abutting neighbors.

There was some discussion on information still needed for that October public hearing. Ms. Oziolor said they will try to get written comments from the builder and the applicant by the next meeting, however, any additional information may need to be requested at the time of the hearing.

 

E. APPROVAL OF DECISIONS –

Consider, discuss, and act on application decisions referred to staff for writing.

 

            There was no approval of decisions to report.

F. PUBLIC HEARINGS – Continued Business -

Consider, discuss, and act on application(s).

1. South County Cultivators, Inc., 71 Quarry Road, ‘AP ‘55 Lot ‘1’ Status report in accord with Conditions of Special Use Permit.

Christine DiBiase, associate with Adler, Pollock, and Sheehan, P.C, Providence, was present on behalf of the applicant, Rick Comolli, and project engineer Sergio Cherenzia, principal of Cherenzia & Associates, LTD. in Pawcatuck, Connecticut. She said they gave the Town a written report on August 18 addressing each condition of approval. She read through the completed conditions of approval and stated that South County Cultivators, Inc. is in full compliance of the decision. The Board had no questions for the applicant.

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

Ms. Oziolor explained that the application requests a five-foot left side yard Variance and a five-foot right-side Variance for a newly constructed home in the center of the lot after razing the existing home, which is a nonconforming structure.

Attorney Kelly Fracassa, with offices at 85 Beach Street, was present on behalf of the applicants Todd and Karen Nordstrom. The Nordstroms want to replace the dimensionally nonconforming 60-year-old home with a larger conforming structure. Also present to provide testimony were James Houle, an appraiser, and architect Stephen G. Fennel. Atty. Fracassa introduced a document marked “Applicant’s Exhibit F1” showing the ratio of house to land area from VISION appraisal through the Westerly Web site. A second set of documents containing the same plans previously submitted but also containing dimensions for the bathrooms and some of the smaller rooms of the home, was submitted and marked “Applicant’s Exhibit F2.” Atty. Fracassa also submitted tax cards for the homes of abutting neighbors at 75 Meadow Avenue and 5 Shawmut Avenue, whom object to the application, and the documents were marked “Applicant’s Exhibit F3 and F4” and another document marked “Applicant’s Exhibit F5” was the text of a bill introduced in house of representatives on June 4 regarding the definition of dimensional variances. He said the bill has passed through the House and will find its way to the Senate. Attorney Jerry Petros, representing an abutting neighbor, objected to the submission of Exhibit F5 as he said the bill was not passed by both the House and Senate and not signed yet. He added that the legislation submitted is from a previous session that is adjourned and the next one is not yet scheduled. Legal counsel representing homeowners at 4 Spray Rock Road concurred with Atty Petros’ objection. An additional document, labeled “Exhibit F7,” was submitted by Atty. Fracassa, which demonstrated the viewshed of the properties from Exhibit F3 and F4. Exhibit F7 was referenced later in the meeting in the applicant’s arguments that the neighbors object to the project due to the potential affects to their coastal views.

Todd Nordstrom, owner of 2 Spray Rock Road, was sworn in for public testimony. He said the structure at 112 Noyes Neck Road is his wife's cousin’s home. He provided a history of the lots. He said they took full ownership of 2 Spray Rock Road in September 2020, and they have safety concerns about an existing barn on the property that connects the homes. He said the connection was created in the 1950s.

Atty. Petros asked the applicant a series of questions about his primary residence and career. Mr. Nordstrom resides in Westchester County, New York and is an investment banker with JP Morgan Chase.  He said the purchase price of 2 Spray Rock Road was about $1 million for the remaining shares of the home. Attorney Steve MacGillivray, of Pierce Atwood LLP, Providence, representing 4 Spray Rock Road, asked follow-up questions on the cost of the property. Mr. Nordstrom shared that he has three children in middle school, high school, and college, and they visit the Westerly home as often as possible in the summer and he visits at least once a month, but historically the house has been vacant.  

Mr. Houle was sworn in for public testimony. He said he gathered information by inspecting the property and neighborhood, using the Town's Web site and GIS and vision appraisal for any details. He read into the record from his report on page 12 starting at the third paragraph down, referring to land use. He explained the amount of frontage Zoning Code requires and that the relief sought to give the house 30 feet allows the depth to create a 1 to 2 ratio. He said in his opinion it is a simple request because the rest of the Zoning Code is satisfied and they just need a sideline setback, the hardship being the width of the lot. Mr. Houle said according to his research on area homes, the proposal is in conformance with the rest of the neighborhood. He submitted a two-page document marked Exhibit H1 showing various lot widths. He said he looked to see what the narrowest home was but could not find any near their request. He also could not find an area home that had a massing smaller than the applicant's home. Mr. Houle elaborated on the standard widths of homes that range between 24 and 32 feet of the main box of the home, explaining that the lower end is a flat ranch or raised ranch or small colonial home. He said when a staircase is needed that runs across the width, they will be a bit wider to give some comfort. He testified that homes of a 24-foot width could be considered insufficient use and it is rare to see that unless it is for a specific project, such as condos. Houle said 24 feet is typically a good width for building material dimensions. He provided more professional opinions on the standard sizes of rooms. He reviewed architectural plans for the house and said that the design was in harmony with what they would see for a home of this square footage.

Atty. Petros said he did not object to Mr. Houle’s professional expertise in real estate appraisal but thought he testified more as an architect. The other attorneys present on behalf of abutting neighbors agreed.  Mr. Torres said he liked the analysis on the width and asked if there was one on the depth. Mr. Houle said he does not have an analysis on the depth as the request is not seeking relief for that dimension. Mr. Torres asked what the rational was for the choices of area home analysis. Atty. Fracassa said the homes were chosen by their proximity, waterfront location, or appearance. Mr. Houle said he chose properties to analyze that had lot widths of 90 feet or less. There was further discussion among the Board, Atty. Fracassa, and Mr. Houle on the details of the application request and the dimensions of the applicant’s lot.

Attorney Robert I. Stolzman, with Adler, Pollock, & Sheehan, PC, Providence, was present on behalf of the McDermott family, of 5 Shawmut Avenue. representing McDermotts at 5 Shahmut Avenue, asked further questions clarifying Mr. Houle’s comments on the building envelope. Atty. Stolzman said he was trying to make sense of how the requested relief is the minimum amount necessary if the project attempts to triple the size of the house, decrease the size of the front lawn and move the structure closer to the street. Mr. Houle said the application conforms to height regulations and to front and rear setbacks. The only request is to move the dimension of width out to a reasonable 30 feet, he said. Atty. Fracassa asked Mr. Houle to restate his assignment. Mr. Houle said his job was to review the request, see if it met the standards of the Westerly Comprehensive Plan and opine on whether the request followed Zoning Code. He said it was not his job to analyze the marketability of the property.

Architect Stephen G. Fennell, AIA, LEED Green Associate, of Penniman Architects, LLC, 35 Pratt Street PO Box 338 Essex, Connecticut, shared some details of his professional background and education. He was sworn in for public testimony. His resume was submitted as Exhibit F6. He said most of the rooms in the project design are average size or smaller than typical size and the rooms are appropriately sized for the home. Mr. Fennell said the home is compact and efficient because of the lot size. He said he could make it slightly smaller than 30 feet and still make it functional by stealing some space from the living room, porch, and master bedroom and bath. Mr. Fennell said making the home smaller than 28 feet wide would affect the functionality of the home and require a complete redesign. He said challenges to more narrow homes include logistics of utility installation and mechanical layouts.

The Zoning Board took a recess at 8:08 p.m. and went back in session at 8:15 p.m. The Board discussed the remaining meeting agenda and stated the Genese applicant would stay to be heard and no one was present for the Almeida application.

 

Mr. Brockway made a motion to continue the Centrica Business Solutions, AP ‘119’ Lot ‘5A’ 67 Tom Harvey Road – B Street application to the October 6 Zoning Board meeting. Mr. Cioppa seconded the motion. The motion CARRIED by unanimous vote with no abstentions.   

Mr. Torres made a motion to continue the Christine and Richard Harris, AP ‘154’ Lot ‘20’ 28 Harbor Drive application to the October 6 Zoning Board meeting. Mr. Russo seconded the motion. The motion CARRIED by unanimous vote with no abstentions.  

The Board continued discussions with Mr. Fennell on the potential functionality of the home with possible redesigns. Mr. Russo shared that front steps, decks, and porch all count when calculating setbacks so the basement bilco door in the design will encroach on the side. Mr. Fennell said that basement access could be moved to where the outdoor showers are to the rear. There was further discussion on the use of the basement. 

Attorneys for the abutting objectors asked Mr. Fennell further questions on his testimony. Atty. Petros said it is their position that the lot is nonconforming and their argument against the application is written in a memo submitted to the Board. Mr. Fennel said hypothetically a much smaller home could be designed on the lot, such as a small cottage, but it would not be consistent with the character of the neighborhood.

Atty. MacGillivray called Christopher W. Arner as a witness. Mr. Arner is a licensed architect with Architecture + Interiors, 1 Washington Street, Newport, and was sworn in for public testimony. His resume was submitted to the Board as Exhibit G1.  Mr. Arner said he has experience with residential architecture and his practice focuses on single family homes in coastal areas. He said he reviewed the application and visited the property. He suggested it is possible to reuse the existing structure and renovate it. He shared details of how this might be accomplished. Mr. Arner said the section connecting the barn could be removed and closed over so that would not be a safety issue anymore. He said adding a second story to the existing footprint could achieve additional bedrooms. Mr. Pawelkiewicz asked how Mr. Arner would reduce the design. Mr. Arner said he would look at a decreasing the size of the bedrooms and the master bathroom could go to a single vanity, for example. Mr. Brockway said the current footprint is more nonconforming than the applicant’s request. He asked how an architect could design a nice home at 20 feet wide as that is what would be required. Mr. Arner said it is a design problem that requires sitting down to solve it. Atty. MacGillivray said they were arguing using the existing structure, which is grandfathered in, instead of razing and rebuilding. The Board questioned Mr. Arner further on his design experience with similar homes and the possibilities for this project.

Atty. Fracassa also questioned Mr. Arner on his methods used to analyze the project request.

Atty. Petros called Doug McCloud, of 75 Meadow Avenue, as a witness. He was sworn in for public testimony. He said he owned his home since it was built in the mid-1950s and is very familiar with the applicant’s property. He opined that the Zoning Ordinance’s minimum relief does not include permission to triple the size of a home and exacerbate an existing noncompliance. He said he thinks the property can be vastly improved without tripling its size and disregarding the existing nonconformance. Mr. Brockway explained to Mr. McCloud that the applicant’s proposal reduces the potential Variance requests. Mr. Russo added that most lots are nonconforming, and this is a minimal request compared to other requests they receive. Mr. Torres agreed the project triples the size, but it is not out of character with the neighborhood and the existing building seems odd. He added that the rebuild at the proposed design would still make it the third smallest home in the area. Mr. McCloud said it would be interesting to see the analysis of area homes to their lot sizes. There was more discussion on the sideline setbacks. Mr. McCloud said a letter written and submitted to the Board as Exhibit P1 was from his family and written by himself, his sister, and his brother. He read from page two of the letter. He reiterated that his objection to the application is that the lot is too small for the proposed design, and it is not a responsible reading of the Zoning Ordinance. Atty. Fracassa asked several times if a potentially impeded view was a concern to Mr. McCloud. Atty. MacGillivray objected to the repeated question as he stated that his client answered that already within his testimony and submitted letter. Mr. Torres thanked Mr. McCloud for attending the meeting but stated that the property owner has a right to raze and rebuild a home.

            Atty. Petros delivered closing remarks, saying that in this case this is a total demolition and so it would not be allowable to rebuild at the planned size according to laws of nonconforming structures. He read into the record from the law, saying it does not favor saving or expanding upon nonconforming structures. He said his clients would like the Nordstroms to improve the home, but they object to this specific proposal.

Atty. MacGillivray echoed Atty. Petros’ legal arguments. He said the argument is that least relief necessary is the burden of the applicant and there were testimonies given by two architects that stated this project is not the least relief necessary. The applicant's own architect admitted it could be redesigned, he said.

Atty. Stolzman said the standard to focus on in Atty. Fracassa's brief is that the applicant must establish that the project is for a “reasonable enjoyment” and not a "full enjoyment." He argued that the applicant did not demonstrate that there is no other reasonable potential project design. He said they could agree the current proposal is a reasonable, nice house, but cannot prove it is the least amount of relief necessary.

Atty. Fracassa said there was much arguing about how to apply the law and that is where he must focus his closing argument. He cited various court cases to counter the arguments made by the objecting attorneys.

Mr. Pawelkiewicz noted the late time at 10:43 p.m. and suggested they continue the case. Atty. Romano said the Board could close the hearing and read a decision at the October 6 meeting if the applicant waives their right to receive a written decision with 15 days. There was discussion among the Board on how to proceed.

Mr. Cioppa made a motion to close the Nordstrom public hearing with the understanding that the required 15-day deadline for a written decision has been waived and the decision will be heard at the October 6 Zoning Board meeting. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

At 10:57, Mr. Cioppa made a motion to continue the Genese application to the October 6 Zoning Board meeting. Mr. Brockway seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

3. Christine & Richard Harris, AP ‘154’ Lot ‘20’, 28 Harbor Drive Permit a previously constructed deck, requesting (2) side-yard variance’s (§260-33) Dimensional Variances Continued to October 6, 2021.

G. PUBLIC HEARINGS – New Business –

Consider, discuss, and act upon appeals.

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

The applicant was not present at the meeting.

2. Deborah & Robert Alberga, AP ‘168’ Lot ‘189’, 43 Montauk Avenue Stairway change during construction requiring a front yard variance (§260-33) Dimensional Variances. Continued to October 6, 2021.

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. Continued to October 6, 2021.

 

4. Christine & Richard Harris, AP ‘154’ Lot ‘20’, 28 Harbor Drive Permit a previously constructed deck, requesting (2) side-yard variance’s (§260-33) Dimensional Variances. Continued to October 6, 2021.

 

H. STAFF COMMENTS –

There were no additional staff comments at the meeting.

 

I. ADJOURNMENT –

Mr. Brockway made a motion to adjourn the Zoning Board meeting at 10:58 p.m. Ms. Robinson 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 October 6, 2021