Zoning Board - Meeting Minutes

Wednesday, February 8th, 2023 - 6:00 p.m.

Westerly Town Hall | Town Council Chambers

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 from the process for hearing applications from the Zoning Board Rules of Procedure.

 

B. ROLL CALL AND REVIEW OF STAFF ATTENDANCE

 

Members Present:     Chair Walter Pawelkiewicz, Vice Chair Larry Cioppa, and Members Jeffrey Russo, Dawn Robinson, Larry Burns, and Alternate Member Alan R. Martone

 

Members Absent:     None.

 

Staff Present:             Zoning Official Martin E. Loiselle, Jr., Assistant Solicitor for Planning & Zoning Scott Levesque, Minute Taker Stephanie LaSota, Information Technology Technician Lanny Fuller

 

C. APPROVAL AND REVISION OF MINUTES

 

1. January 11, 2023 – Mr. Russo made a motion to approve as submitted the January 11, 2023 Zoning Board meeting minutes. Ms. Robinson 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.

 

 

There were no changes to the agenda.

 

 

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

 

There was no business to discuss.

 

F. PUBLIC HEARINGS CONTINUED BUSINESS – Consider, discuss, and act on application(s).

 

There was no business to discuss.

 

G. PUBLIC HEARINGS NEW BUSINESS – Consider, discuss, and act on application(s).

 

1. Florentine Realty LLC, 159, 163 & 165 Shore Road, AP ‘140’ Lot ‘19’ ‘20’ ‘21’ Height Variances for an addition to an existing commercial structure. (§260-33) Dimensional Variances

 

Mr. Loiselle described the application - a dimensional variance request to expand a principal structure with an addition containing 34 hotel units, a conference center, pool, and fitness center. He said 159 and 163 Shore Road contain a single-family and a two-family home built in the 1930s and 1960s, respectively. 165 Shore Road contains the existing restaurant, which was built in 1999. The project involves merging the three lots, demolishing the residential structures, and renovating the existing restaurant. On June 6, 2012 a Special Use Permit was issued, which does not expire, and because there are no material changes to the original plans, the Special Use Permit is still valid. In the latest proposal, building B has been lowered six feet below building A. Mr. Loiselle explained that it makes sense to calculate both portions of the buildings separately. Each new building requires a height variance; Building A requires a 7.7- foot variance and Building B requires a 4.5-foot variance. Mr. Loiselle said that town staff agreed that the version of the plan presented tonight was preferable to two other possible alternatives that staff saw from the applicant.

Present at the meeting was Attorney Elizabeth Noonan, and the applicants Nunzio DiMarco and Antonio DiMarco, principals of Florentine Realty, LLC. Atty. Noonan distributed a binder of documents containing exhibits numbered 1 through 17 and it was marked Applicant’s Exhibit 1-17. She added exhibit 18 to the packet of information; a memo from Mr. Loiselle to Planning staff dated October 11, 2022. She said one of the main components to focus on when considering the height is the topography of the land. She introduced Anthony Nenna, project engineer and principal of On-Site Engineering, 3 Crestview Drive, Westerly, and he was sworn in for public testimony. Atty. Noonan referenced Exhibit 7. Mr. Nenna said the homes on 159 and 163 currently have two cesspools. An agreed upon buffer zone from Coastal Resource Management Council (CRMC) was marked on the plans. Mr. Nenna described most of the parking to be located through a curb cut on Via Roma. The site is serviced by public water. Mr. Nenna further described the existing grading and said there is about a seven-to-nine-foot drop from the road to the rear of the property. He referenced sheet 3, showing a better layout of the proposed buildings and 143 parking spaces, though only 139 spaces are required. He said they added a designated loading area per the comments of the Planning Board. The new denitrification system will meet Rhode Island Department of Environmental Management (RIDEM) requirements and is shown on sheet C-3. He explained that the new septic systems will replace the cesspools on the residential lots. The existing system behind the restaurant will remain. There was discussion about the water quality areas planned between the pervious pavers in the rear lot. Mr. Nenna said there will be a wall along the southerly end of the parking lot, and they will grade the lot away from the Pleasant View property. Any water should flow toward the water quality basins, he said. Mr. Russo asked what will prevent the rain garden areas from shedding to the pervious areas and into Pleasant View Farms. Mr. Nenna said next steps will be done with CRMC and RIDEM, but the proposed contour of the lot creates a depression, and the rear is also sloped so that water will be directed toward the first water quality area. Mr. Russo said he could not see this stormwater plan working. Atty. Noonan said the plan has not been fully engineered because of the process that they are in but it will be ready for the next Planning phase. Mr. Burns received confirmation that the septic system will be below the rear patio area. Mr. Nenna said it is designed based on the flow rate because it is mixed uses.

 

One of the checklist items on the application was to prove there was adequate water supply for the project and the applicant shared exhibit 9, a letter from C & E Engineering dated July 11, 2022 on the report of a hydraulic evaluation to determine the ability of the Westerly water supply system. Mr. Nenna explained Exhibit 10, notes from an August 11, 2022 meeting with the Deputy State Fire Marshall. Atty. Noonan said there are two copies of the minutes signed by the state fire chief and the Misquamicut fire chief. Mr. Nenna also described the lighting plan. The full height of the lights is unknown until they do a full analysis. He said they want zero-foot candles so that there is no light spillover to neighboring properties. Atty. Levesque said lighting conditions were placed on this project from the Planning Board and will be further addressed at future meetings.

Project architect Peter Springsteel, principal of Peter J. Springsteel Architect LLC, 105 Starr Street, Mystic and licensed in Rhode Island was sworn in for public testimony. Atty. Noonan referenced Exhibits 12 and 13, a narrative and series of renderings and photos, for Mr. Springsteel to describe to the Board. Mr. Springsteel said his mission was to design 34 hotel suite units in the building addition. A pool and a fitness area will also be added to the lower level of the new building. He said it is important to connect the buildings so guests can access all the amenities. He described the reasons for the two height variances, so the rear neighbor can access her property via a portal under the second and third floor. Mr. Springsteel said the grading of the property is a hardship to the application and requires the relief requested. There was further discussion on the rear grading of the property. Mr. Nenna said 10 or 12 percent is the maximum grade, but he must measure to ensure the grade percentage.

Mr. Martone asked who would maintain the right of way and Atty. Noonan said the applicant would be responsible for it. She noted that the easement issue was raised and addressed in the Planning Board decision. She referenced the Planning Board’s decision, Exhibit 6, and their written condition number 13, validation of the easements in the project. Exhibit 13, architectural plans, were discussed in detail. Mr. Russo said the floor plans remind him of condominiums and asked if there is intent to relabel them and sell them as such in the future. Mr. Springsteel said they are designed as hotel suites and are set up for families with the ability to cook in them. Atty. Noonan said this issue was raised during the Planning Board procedures and the DiMarcos testified that they do not desire to do that. They expressed the market need for suites for business travelers and families. She said residential is prohibited in this zone. Mr. Loiselle confirmed that multi-family housing is not allowed, and it would have to be rezoned to allow condominiums. Mr. Burns questioned if there are time limits on guests staying at the property. Atty. Levesque clarified for the Board that a condominium is a form of ownership, and the Board cannot dictate that, but whether the use is allowed is Mr. Loiselle’s purview.

Ms. Robinson questioned if the proposed hotel was accessible for Winnapaug Inn clients. It was said that they were two separate businesses and ventures. There was discussion that perhaps “hotel” is not the right title for the project as it is more like a resort. Atty. Noonan noted the objectors to the application, one of which is a homeowner who would have to use the access easement beneath the portal to get to her home. Mr. Springsteel further described the portal and private drive to the property. He said it will be marked private driveway. Ms. Robinson said a gate may be a good addition to deter public use of the drive and there are other gated communities in the area that access their properties that way. Mr. Burns asked how the applicant feels penalized by the topography of the lot. Mr. Springsteel said the formula used to calculate the height is an issue. He said if they were on a flat lot, they could still do some subterranean amenities and could bring in light through window wells so he does not see the lot’s topography as a bonus. Mr. Burns said the applicant is not making a compelling case for the variance and he cannot see how topography is a hardship. Mr. Springsteel said across the street the land continues to rise up and their project will not impact their view greatly. Mr. Burns said some of the property comparisons shown on sheet A-002 are poor examples as comparably tall projects as the Venice project creates a larger scale structure with a wider span on Shore Road. There was discussion about the least relief necessary for the applicant to receive an approval.

Atty. Noonan said the applicant tried several variations of the project, which were shared with Planning and Zoning. She said the Town Planner initially disapproved of the plan for being inconsistent with the Comprehensive Plan and they are now at a place where it has been found to be consistent with the plan. Atty. Noonan said the applicant has been working on this project for over a year and believes they have achieved the least relief necessary. She reminded the Board that lower alternatives were investigated but those plans posed other issues, such as encroachment into the CRMC buffer. Atty. Noonan reminded the Board that the existing building was built to height conformance and now it is an existing nonconforming because of zoning changes that occurred after its construction.

Ms. Robinson asked how the suite sizes were determined. Mr. Springsteel said he researched the average suite size in the market. He described the challenge of aligning the addition’s floor plates with the existing structure. He said the plates line up nicely with the portal opening, but once past the portal they drop down eight feet. The architect stated the rooms have average height ceilings. There was discussion about the height calculations. Mr. Cioppa requested that the applicants finish their presentation and the Board open public comment.

Atty. Noonan noted page 4 of Exhibit 18, the memo from Mr. Loiselle to the Planning Board. In the latest application submittal, the addition has been lowered so that it is 6 feet below the existing building so the applicant has continued to try to change the plan to create the least relief necessary. Mr. Springsteel said if you measure from the street the height is conforming but when you measure from the rear you are penalized.

Landscape architect Rebecca Nolan, of Rebecca Nolan Landscape Architect LLC., 44 Water Street, Mystic, was sworn in for public testimony and presented her plans for the project. She noted that west of the property is the Rhode Island Audubon Society, and they want to do their best with lighting and buffering plans because of that, as well as residential neighbors. The salt pond overlay district is a very sensitive area. They are focusing most of the site work toward Shore Road, which is best practice. She said all the rear elements designed in the plan are best practice, as well. One comment at the Architectural Review Board (ARB) was related to the amount of curb cuts on existing properties. They recommended more green space along Shore Road. She said there are a lot of questions about property maintenance, but the owners do have a good track record. Ms. Nolan said there are no proposed changes to the existing patio in the rear of the restaurant and they will mimic that design for the other two buildings with more hardscape. The project adds significant evergreens along the property boundary to the south, bordering Sally Sorenson’s property, 161 Shore Road. To the rear of the lot, the existing CRMC coastal feature needs a maintained buffer, as delineated on the plans. The applicant must return to CRMC for final approval. Pedestrian connections in between buildings were suggested by the Planning Board and those are planned from the lot to the existing restaurant and between that building and other areas on the site. Ms. Nolan described Exhibit 7, sheet 102, for the Board. A bike rack was added and ADA (The Americans with Disabilities Act) located close to the rear of the building. Street trees were described. Mr. Russo asked about provisions for irrigation for lot shrubs. Ms. Nolan said most plants in these areas are recommended to be self-sufficient and need about one year of growth and then should maintain themselves. She said most plantings in the lot area are trees and grasses. She said she usually specifies that the property owner mow rain gardens twice a year.

Atty. Noonan introduced traffic engineer Paul J. Bannon, associate senior project manager of Beta Group, Rhode Island, and he was sworn in for public testimony. Mr. Bannon described his prepared traffic impact study dated September 2022, which was marked Exhibit 15. He said the use proposed is consistent with this area and other recreational opportunities along the road. On page 16 of Exhibit 15, the study concludes that the future traffic conditions resulting from the proposed project will provide for adequate and safe access to a public street, and will not have a detrimental effect on public safety and welfare in the study area. Ms. Robinson asked a series of questions regarding the right of way easement. Mr. Bannon said there is plenty of space. Mr. Russo commented that event guests coming out of one exit – Via Roma – can create logistical issues and congestion. He asked how he proposed to get 139 cars out of there safely on a road that is not built to Town standards, as it is not Town-owned. Mr. Bannon responded that the exit and egress is an existing condition.

 

Mr. Pawelkiewicz called a recess at 8:12 p.m. Mr. Pawelkiewicz called the meeting back to order at 8:19 p.m.

 

Mr. Nenna addressed the issue of measuring the property. He said if they were to use the old ordinance it would have eliminated the height variance or significantly reduced it. Mr. Nenna said other municipalities may take the average proposed grade. He explained he does not want a foundation in a hole where drainage may go to front door and by positing the slope away from the building toward the road it protects the building.

Paige Robert Bronk, a community planning consultant, of Newport, was sworn in for public testimony. His report on the project was labeled Exhibit 16. The slope of the property was noted on page 3 of the report. He noted that the Comprehensive Plan discusses a seasonally high water table, page 3 of the report was taken from Westerly GIS. He said with this issue there are certain soil delineations that pertain to it and the relief sought is specific to this individual site.

He said the test to whether or not the project will move forward is not if it is profitable, but if it is viable. Mr. Bronk described smart growth as a way to properly design things that best meet community standards. It is best practice used in field planning and to put property on a road edge where it is properly designated by the municipality for such use. There is a pocket of the shoreline commercial zoning that is located here, and this designation is a small district, he said, 0.4 percent of Westerly is shoreline commercial zoning, which is about 82 acres of land. He said the first two parcel properties on the project are nonconforming and not consistent with the future vision of the town. Mr. Bronk testified that the requested height variance does not impair the intent of the Comprehensive Plan or zoning ordinance and he believes it is the least relief necessary and if not granted it would be more than a mere inconvenience. He noted the significant changes made to the plan and the applicant’s significant personal investment made in the project. For the project to be feasible, a certain scale is required, and the variance request is not being driven by a desire for more profit. Mr. Bronk noted the opinions shared by him are set forth on page 15 to 17 of Exhibit 16. Mr. Burns asked for clarification on the ADA comment. Mr. Bronk said that conversation was significant when modifying the plan and during the life of the project. Mr. Springsteel addressed the topic and described the logistics of the lift system in the building, which is already elevator heavy based on the number of units. Mr. Burns said the applicant could have chosen to have to build free standing and not design a portal over an easement, which would have eliminated this challenge. Mr. Springsteel responded that would create an inconvenience for guests accessing amenities. There was discussion about the real need for the sizes of the suite units and possibly decreasing the footprint of the suites to reduce the building height. Ms. Robinson asked why the easement cannot be moved to the end of the building. Mr. Springsteel said there is an issue with moving the easement because of the existence of a single-family home. Atty. Noonan noted that she has been unable to have a conversation with the neighbors, though she has spoken with their counsel. Mr. Burns observed that while the project contains 34 units, it essentially has 63 hotel rooms, so this is by far the largest hotel project in Westerly. He said it is an environmentally sensitive lot and he has concerns about the location of this project.

Atty. Noonan highlighted the fact that there are other uses that could go on the property that would be far more impactful if the lots were separate and not attached to Venice Restaurant. She said there are many protections in place for the project. Mr. Cioppa noted that the Zoning Board could also make the validity of the easements a condition of approval. He believed the

Board was rehashing issues that are more in the Planning purview and he would like to focus on the height variance. Atty. Noonan distributed emails sent to the Town in support of the project. The email dated February 8, 2023 in favor of the project was marked as applicant’s exhibit 19. A second letter signed by Stanton Terranova III was marked applicant’s exhibit 20.

Attorney Robert Craven, of North Kingstown, was present with his client Sally Sorenson, of 161 Shore Road, the home to the rear of the project that would need to be accessed via the portal over the existing easement. The last page of Exhibit 13 in the applicant’s submission shows a representation of the project in an aerial form. He said toward the middle rear you can see what appears to be a path that is taking a right-hand turn and on the other side of that there is a home. Ms. Sorenson introduced herself and said she feels fortunate to own her property in its scenic and natural location. It was deeded to her by her father and she was not aware of the zoning change which made her landlocked property nonconforming, making it less valuable and less marketable. The use change was touted as a step toward economic development. She found this odd because of the environmentally sensitive location. She was shocked about the plans and that the DiMarcos had purchased a couple other homes near her. She said there is an existing hotel that could be used, and it is not. She claimed that the Venice Restaurant has not been used as often as it could be. Ms. Sorenson feared the future of having to endure months of construction and concerns about the invasion of privacy and security of her home. She said her quiet peaceful existence next to the preserve would cease because of the project. Ms. Sorenson addressed the easement and the deed states that nothing should be built over, above or under this easement and her attorney has a copy of that. She finds it ridiculous that she needs to go under a building to get to her home. She noted the risk of vandalization, guests trying to access the road, and out of town guests close to her home. Ms. Sorenson expressed concern about the size of the septic system being located so close and if it fails that could have very negative consequences. She claimed she already experiences water runoff from the property. She said the easement is on the DiMarco property and they have never once plowed it. She claimed Atty. Noonan never called her. Atty. Craven responded that he did converse with Atty. Noonan.

Atty. Craven read into the record from the existing easement agreement, marked remonstrance 1 and dated February 26, 1971 and it says about the easement portion, that it is “subject to a perpetual right of way on in under above and across a strip of land 25 feet wide…” He said the Board will have to ask if the applicant thought it was ok to create this portal despite that language. Atty. Craven referred to the standards for zoning approval and said there cannot be a height variance granted if it is not the least relief necessary. He claimed the applicant was justifying the project size based on its economic viability and it should not be a profit-driven evaluation. Ms. Sorenson said she did not make the presentation at the Planning Board as she had not retained legal counsel yet, but she did speak during the public comment period. Atty. Levesque said the easement issue was discussed at the Planning Board and he read the same easement language into the record. The conclusion was that this was a private land dispute between the two landowners and the Planning Board conditioned its approval based on the validity of the easements. He said the Zoning Board could condition its decision on a requirement that the applicant’s intended use of both of the easements be valid under the law.

Ms. Robinson reminded Ms. Sorenson that the applicant can build by right and the Zoning Board is only determining a height variance. She posed the question of whether Ms. Sorenson would be ready to accept if the owner decided to build a different business that may be more invasive in the lot.

Attorney Michael Cozzolino, with offices at 80 Beach Street, was present on behalf of the Dean and Patty Pons family, the owners of Via Roma and 22 Via Roma. Ms. Pons asked that the Board deny the request for the height variance. She said the current building already towers over the property and it is a lot larger from the rear than the front. She said the DiMarco businesses have already impacted the quality of their lives. Ms. Pons said Westerly’s Comprehensive Plan states that market growth and protecting natural resources should be done in a way that protects residents. She said the home has been in their family since 1963. She noted that the only path for a failed septic system would be directly to Winnapaug Pond, and a system failure could be detrimental to wildlife. Ms. Pons said the homes on lot 20 and 21 are nonconforming due to zone changes but are still suitable for the land. A scaled down project could still produce so much, she said. She said they have not been approached about the easement issues by the applicant. Ms. Pons said parking for large events has spilled over to Via Roma in the past and asked how they could not add extra parking when the project will facilitate large events and suite guests. She said the applicant has other options besides building to this scale.

Atty. Cozzolino argued that the applicant did not prove it requested the least relief necessary. He said the applicant could build a hotel and not require a variance. He said the fact that the structure may be more valuable as proposed shall not be grounds for relief. He noted a Town of Charlestown 2021 supreme court case that determined dimensional relief was not given. He said the burden is on the applicant to justify its request and they have not done that because they use financial viability as a reason. He explained the past arrangement between his client and Venice Restaurant to access the business. His client never anticipated this larger project happening. Atty. Cozzolino noted the standard in the law to not overburden an easement and this project clearly overburdens it.

Atty. Noonan responded and admonished Atty. Craven and Atty. Cozzolino to acknowledge that she did contact them both for discussion on the easements. She noted that when abutting neighbors have legal counsel, she may not personally contact property owners. She said she remained open to conversation and conveyed that to the counsel. She said the access easement to 161 Shore Road does not contain aerial rights and that is very clear. She empathizes with Ms. Sorenson but if the project conformed to height, it would still be intrusive to her. Regarding Ms. Pons’s comments, she said the banquet for 280 people is already there and has existed for years and adding 34 hotel suites is what is new. She urged the Board to grant the relief as it had professional analysis, the Planning Board has given its advisory opinion and the Zoning Office has granted its support. Atty. Noonan concurs with all conditions in the master plan having to do with the easement. She believes they have presented the evidence necessary to show hardship. She believes it is a good plan and they have worked diligently to reduce the plan.

The Board had extensive discussion about the project. Mr. Cioppa said he is leaning toward a yes vote because he looks at it like if there were a lower building it would not be as attractive and it could be a good project for Westerly. His main issue is the easements, and the approval needs conditions. Mr. Russo said he would vote no as he does not believe they have not met the standard of hardship on the project. He thinks it is too large for the neighborhood and it may affect the environment. He thinks the least relief necessary could be accomplished by lowering the rooflines. Ms. Robinson said she would support the application because by just looking at the height issue, if you view the building from the street, it would be less than 35 feet. She said she appreciates the business owners’ investment but the neighbors need to talk to one another regarding the easement agreements. Ms. Robinson reiterated that eventually a business will go there because that is how it is zoned, and the Town is not changing the zone. He thinks the owners are good stewards of the business. Mr. Burns said he does not think the applicant has met any of the five criteria and is voting no. Mr. Martone said he does not have a vote but he has an opinion. He said he does not have an issue with the height variance but in the interest of being a good neighbor he wouldn’t want to live at Ms. Sorenson’s property. He would like the neighbors to find a solution because driving through a tunnel is an inconvenience.

Mr. Pawelkiewicz said this project has been reviewed and approved by the ARB, the Planning Board, and the testimony of Mr. Bronk is agreeable to him. Mr. Pawelkiewicz quoted the Planning Board recommendation that a requested height variance will not affect the character of the area and reflects the shore commercial zone. He reiterated that their purview was not to approve the size of the project but just the requested relief of the height variance.

Ms. Robinson made a motion to close the public hearing at 9:46 p.m. Mr. Cioppa seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

Mr. Cioppa read into the record the details of the Florentine Realty LLC dimensional variance application request to expand the existing Venice Restaurant at 159, 163 & 165 Shore Road, AP ‘140’ Lot ‘19’ ‘20’ ‘21’ to create a resort with 34 hotel suites, a banquet hall, a pool, and a fitness center to have 130,280 square feet with 354.6 feet of frontage on Shore Road. Mr. Cioppa incorporated into his motion the information of the Zoning narrative dated January 31, 2023 that was summarized by Mr. Loiselle during the public hearing, and referenced all the professional representatives of the applicant, and the related documents that were noted for the record, as well as the justification for the five standards that the Zoning Board must examine and made a motion to approve the applicant’s request for a 7.7-foot building height variance for building A and a 4.5-foot building height variance for building B in order to expand the existing Venice Restaurant with the following condition that all conditions of the Planning Board that include that two easements on the property are legally sufficient for the use they are proposing. Ms. Robinson seconded the motion. The motion CARRIED by a vote of 3 to 2 with Mr. Russo and Mr. Burns voting no and Mr. Cioppa, Ms. Robinson, and Mr. Pawelkiewicz voting yes.

 

I. STAFF COMMENTS

 

There was no report of discussion.

 

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

 

1. PCFP Westerly Real Estate, LLC, 162 Granite Street, AP ‘77’ Lot ‘397’ Addition (12’ x 12’) to an existing structure (§260-33) Dimensional Variances

 

K. ADJOURNMENT -

Ms. Robinson made a motion to adjourn the meeting at 10:00 p.m. Mr. Cioppa seconded the motion. The motion CARRIED by unanimous vote with no abstentions.

 

 

Next Regular Meeting – Wednesday, March 8, 2023 6:00 P.M. at Westerly Town Hall and Zoom.

 

 

 

Respectfully submitted,

 

 

Stephanie J. LaSota

Minute Taker

 

Approved by vote of the Board on March 8th, 2023.