June 20, MEMBERS ABSENT: Mr. James Hall

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1 June 20, 2013 MEMBERS PRESENT: Mr. Kevin Aguiar, Chair, Mr. James Edwards, Vice-Chair, Mr. John Borden, Mr. Byron Hall, Mrs. Tia Scigulinsky and Mr. Brian Smith. MEMBERS ABSENT: Mr. James Hall OTHERS PRESENT: Town Solicitor Kevin Gavin, present as legal counsel for the Board, Building Official George Medeiros and Dede Walsh as recording secretary I. MINUTES: A motion was made by Mrs. Scigulinsky and seconded by Mr. Smith to approve the minutes of the meetings of the March 21, 2013 and May 16, 2013 as presented. The motion was carried with all in favor. II. CHAIRMAN S REPORT: There was no chairman s report III. IV. CONTINUED BUSINESS: NEW BUSINESS 1. (R) A petition Gilbert A. Craig, 116 West Main Road, Portsmouth, RI for a special use permit to change existing art studio into a dwelling unit on tax assessor map 27, lot 34, Article VII, Section C. Atty. Laurent Rousseau, Moore, Virgadamo and Lynch, Ltd., Middletown, RI, appeared representing Gilbert A. Craig, (owner and petitioner.) He explained that Mr. Craig owns property at 116, 118 and 120 West Main Road, which is zoned R20 and has three dwelling structures that pre-date zoning. The structures include a 4 bedroom single family dwelling, a one bedroom single family dwelling and a multi family dwelling with two units with one bedroom each. Mr. Craig resides in the 4 bedroom dwelling and rents out the other three. This use of the property as four dwelling units is the same use as was in place under Mr. Craig s predecessor and is permitted as a legal non-conforming use since it pre-dates zoning. In the process of an appraisal for refinancing, Mr. Craig learned that the property is registered with the town as legally non-conforming for three dwellings and an art studio. Atty. Rousseau requested the approval of a special use permit to allow the existing use of four dwelling units. He noted that all of the development standards in Article VII are either satisfied or grand-fathered. Mr. Gilbert A. Craig, 116 West Main Road, was sworn in. He verified that he was the owner of 116, 118 and 120 West Main Road, AP 27, Lot 34, zoned R-20. He briefly described each dwelling structure. He confirmed that the land area was 74,855 square feet.

2 He verified that the use of the 4 dwelling units was existing when he purchased the property in He learned during a recent appraisal for refinancing, that the town registered the property with a legal, non-conforming use of 3 dwelling units and an art studio. He confirmed that he no knowledge of any of the units being used as an art studio. He confirmed that his request for the special use permit is to conform the permitted use of the property with its actual use. Mr. Craig further confirmed that the 2010 RIDEM approval for a new septic system supports 7 bedrooms and that the property conforms with all development standards set forth in section VII, C, 10 with the exception of building separation on the west side which is grand-fathered. He verified that the petition does not involve any modifications to the property and that there are 8 parking spaces where 5 are required under Article VII. Referring to a density calculation document, Mr. Craig confirmed that the property square footage exceeds the standard of 56,000 sq. ft. for 4 dwelling units. Atty. Rousseau discussed the special use permit criteria with Mr. Craig and Mr. Craig stated that the petition as submitted would meet all the criteria of the special use permit. Atty. Rousseau and Mr. Craig took questions from the Board members. Matthew Cotta, Surveyor, PE, American Engineering, 22 Laurel Lane, Lincoln, RI confirmed that the approved septic system and the plan for the petition were designed by his firm. He confirmed that the septic system was designed and built for 7 bedrooms. He confirmed that the calculations for density are accurate and in compliance with the town s development standards for multi-use under Article VII. Mr. Aguiar called for abutters or interested parties. There were none Mr. Edwards: The petitioner is seeking a special use permit to allow four (4) residential units on a single lot, R20, which according to testimony, have existed for over 30 years. The petitioner has owned the property since After investigation of the title for financing, he came to know that the town only recognizes three (3) residential units. In an effort to acknowledge the discrepancy and legitimize the existing use, he has presented a stamped survey showing the existing conditions. I view approval as a formality. The petition poses no new construction and meets the criteria of the special use permit. There have been no complaints regarding the petition. I vote to approve. Mr. Borden: The petitioner is here this evening to clarify whether the four (4) dwelling units are grandfathered or a permitted use. He has verified that all of the buildings pre-date zoning and that the property meets the development standards exceeding square footage for density. I commend the petitioner for bring the request forward to the Zoning Board to make the property a pre-existing, non-conforming use for 4 dwelling units. The petition meets the

3 special use permit criteria as demonstrated by questioning from Atty. Russo. I vote to approve. Mr. Byron Hall: I confirm that the use of the property as four (4) dwelling units goes back to 1942 when the US Navy was in need of living space for personnel. I vote to approve. Mrs. Tia Scigulinsky: Thank you to Mr. Byron Hall for the history and to Atty. Rousseau for the fine presentation. I feel that all the criteria for the special use permit were well spelled out. I vote to approve. Mr. Aguiar: The Chairman votes to approve for the reasons previously stated by Mr. Edwards and Mr. Bordon Mr. Aguiar announced a break in the agenda to move agenda item # 4 forward. 2. Agenda Item # 4 (HI) A petition by Andrew and Christine Tuchler, Carnegie Heights Drive, Portsmouth, RI for a variance to construct a cabana closer to property line than zoning allows on tax assessor map 26, lot 4-2, Article IV, Sec B. Atty. Vernon L. Gorton, Chase Rd, Portsmouth appeared representing the petitioners. He requested the Board approve a withdrawal of the application without prejudice. A motion was made by Mr. Edwards and seconded by Mrs. Scigulinsky, to withdraw the application for (HI) A petition by Andrew and Christine Tuchler, Carnegie Heights Drive, Portsmouth, RI for a variance to construct a cabana closer to property line than zoning allows on tax assessor map 26, lot 4-2, Article IV, Sec B. without prejudice. The motion was carried with all in favor. 3. Agenda Item #2 (LI) A petition by Michael Marcello, 1396 East Main Road, Portsmouth, RI for a variance and a special use permit to construct an addition to dwelling closer to property lines than zoning allows on tax assessor map 53, lot 32, Article IV, Sec B and Article VI, Sec A. Michael Marcello, 189 Kay Street, Newport, RI was sworn in. Mr. Marcello requested a dimensional variance and a special use permit to construct a kitchen addition onto an existing residential dwelling, zoned LI, which will be his primary residence. Mr. Aguiar discussed the special use permit criteria with Mr. Marcello and Mr. Marcello stated that the petition as submitted would meet all the criteria of the special use permit.

4 In response to a question from Mr. Edwards, Mr. Medieros explained that the front yard variance (7 ft.) is necessary because the addition has to meet the setback requirements. Mr. Aguiar called for abutters or interested parties. There were none Mr. Edwards: Mr. Marcello s situation is unusual in that the property is zoned LI but the typical uses in the area are residential and commercial. Because of the zoning, Mr. Marcello experiences a hardship with setback requirements being greater than R20 zoning. The addition proposed on the rear of the house will expand a galley kitchen and vastly improve the house. The dimensional variances requested are reasonable given the fact that the property is in a light industrial zone. Mr. Marcello has presented a stamped survey and has confirmed that the property is legal, non-conforming. The petition meets the criteria for a special use permit as demonstrated by his testimony. I vote to approve. Mr. Borden: The petitioner has presented an application for a property that is zoned LI but is more consistent with R20 zoning. The lot coverage of 16% is well under the requirements for both sets of zoning criteria, 20%, R20 and 25% LI. He is burdened by the setback requirements for LI, which would not be the case in R20 zoning. To deny the dimensional variance for a residential property would amount to more than a mere inconvenience. The petitioner has proven that the application meets the criteria for a special use permit cited in the zoning ordinance under Article VI, section 8. For those reasons, I vote to approve. Mr. Byron Hall: Based on the comments made by Mr. Edwards and Mr. Bordon, I vote to approve. Mrs. Tia Scigulinsky: The requests for dimensional variance and special use permit are reasonable. The petition meets the criteria of the special use permit. I vote to approve. Mr. Aguiar: The Chairman votes to approve for the reasons previously stated by the members of the Board. 4. Agenda Item # 3 (R) A petition by William and Lee Ferreira, 150 Massasoit Avenue, Portsmouth, RI for a variance and a special use permit to construct an addition to deck which will exceed allowable lot coverage on tax assessor map 5, lot 42, Article IV, Sec B and Article VI, Sec A.

5 Mr. William Ferreira, 150 Massasoit Avenue, Portsmouth, RI was sworn in. He confirmed that his property is an undersized, non-conforming lot and that the variance for lot coverage is necessary in order to replace an existing deck (10 X 12 ft.) with a larger one (15 X 15 ft.) The new deck does not impinge on the side limits. Mr. Aguiar discussed the special use permit criteria with Mr. Ferreira and Mr. Ferreira stated that the petition as submitted would meet all the criteria of the special use permit. Mr. Aguiar called for abutters or interested parties. There were none Mr. Edwards: Mr. Ferreira, 15 Massasoit Avenue, AP 5, Lot 42, is here to request variance and special use permit in order to replace his existing deck. The proposed deck of 15 X 15 ft. increases the lot coverage to 125 sq. ft. or 22 % to 25%. The net percentage increase of 3% requires a 5% lot coverage variance. His undersized, non-conforming lot is zoned R10 and requires a special use permit to remedy the use and is necessary to increase the structure. Mr. Ferreira gave a good explanation as to why he needs to replace a smaller deck that is in disrepair. The proposed deck size is reasonable. There are no requested dimensional variances. I am in favor of the variance for lot coverage. The petition meets the criteria for a special use permit. I vote to approve. Mr. Borden: At 4500 sq. ft., this property is clearly small and less than half of the 10,000 sq. ft. relief criterion associated with R10 zoning. Standing in the center of the back yard, the deck is not going to adversely impact any of the abutters. A deck is a reasonable, accessory, permitted use in a residential district. To deny the petition, would amount to more than a mere inconvenience. I approve of the variance for lot coverage. The petition is consistent with the special use criteria. Yard setbacks are irrelevant. I vote to approve. Mr. Byron Hall: Based on the comments made by the other members, I vote to approve. The request is reasonable. Mrs. Tia Scigulinsky: I vote to approve both the request for the lot coverage variance and the special use permit based on the comments of Messrs. Edwards and Bordon. Mr. Aguiar: The Chairman votes to approve the request dimensional variance and special use permit for the reasons previously stated by the members of the Board.

6 5. (R) A petition by Paul White, 50 Orchard View Road, Portsmouth, RI for a determination if changes to garage are substantial and if so a request for a variance and a special use permit to construct a garage closer to property line and to exceed lot coverage on tax assessor map 45, lot 23, Article IV, Sec B and Article VI, Sec A, Article XIII, Sec B.3. Paul White, 50 Orchard View Road, Portsmouth, RI was sworn in. Mr. Aguiar stated that the petitioner is returning with an old petition, which the Board denied and will not reconsider without substantial changes. He called the members to give comment on the modified petition. Mr. White stated that a survey conducted since the first petition revealed that the side setback in question is actually more than a foot greater (6+ ft.) than originally estimated (5 ft.) The modified petition reduces the proposed garage width from 22 ft. to 19 ft., which includes a 4 ft. entryway off the house. The garage is now 9 ft. from the property line. He state that the set back on the other side of the house remains unchanged and that the average setback in the neighborhood is 7 ft. He explained that the long garage depth of 24 ft. is to accommodate his truck and snowplow. The overall depth is 28 ft., which includes the entryway. He confirmed that the structure is a one-car garage with no change in the height. Atty. Vernon L. Gorton, Chase Road, Portsmouth, RI appeared representing an abutter, Cynthia Quinn. He stated that if the Board viewed the modified petition favorably, he would request a continuance so that his client, who was working, could be present. He argued that the reduction in garage square footage by 15 sq. ft. and the increase in the side yard separation from the property line of 4, 2 is minimal, not substantial. He cited a RI Supreme Court case, Marks v. Zoning Board of Review of City of Providence, 98 R.I. 405, 406, 203 A.2d 761, 763 (R.I. 1964) which determines that persons (neighbors) who are affected by decisions in zoning cases ought not be twice vexed with the same cause and are entitled to have their rights and liabilities settled by a single decision upon which reliance may be placed. He commented that this decision protects neighbors from having to come back more than once to defend their property rights with regard to a single petition. He argued that changes to a denied petition must be material and substantial in order for the Board to hear the petition again. He argued that in April 2013, the Board questioned the petitioner about his desire to go forward with his original petition but he agreed to have the Board vote on his petition. He argued that his client should not have to come back in less than sixty days to defend her property and rights, when the modified petition has so little regard for the complying with the ordinance as it stands. Mr. Aguiar addressed Mr. White stating that he recalls asking Mr. White in April to reconsider his petition due to the amount of opposition among the Board members. He also recalled that that the Board was clear that the petition would not be favorably considered in less than one year or without substantial changes.

7 Mr. White defended his petition stating that the Board did not have knowledge of the survey results, which disclose a greater side yard separation. He stated that the actual modified garage area is 532 square ft. with the shifting of the entryway. Jeff Hatcher, 6 Jessie Drive, Portsmouth, RI was sworn in. He gave testimony to the plan, which he designed as a licensed architect. He stated that the plan shows substantial change in that the garage has gone from 2 car to 1 car. He notes that the garage has been pulled back more than 80% from the property line and the setback matches the setback on the other side of the house. He noted the reduction in the square footage of the garage as substantial. Atty. Gorton argued that give its 28 ft. depth, the garage can accommodate more than one vehicle. Atty. Gavin stated that a majority vote is required to make a favorable determination on substantial change. He verified that if the Board denies substantial change, the petitioner make return every month requesting a determination of substantial change. Mr. Borden commented that Atty. Gorton made a good argument that the reduction in the garage square footage from 587 sq. ft. to 572 sq. ft. is not a substantial change. He commented that lot coverage which, in the case of the modified petition, is reduced to 21% (20% is allowable.) Thus the petitioner is only asking for a 1% lot coverage variance. He said the side yard setback is the critical decision point. He did not feel that the modified petition increases the setback enough (5+ ft. to 9 ft.) to determine substantial change. Mr. Aguiar commented to Mr. White that the garage square footage is just being reduced to conform to the minimum average setback, which he felt did not pose a substantial change. Based on the discussions at the April hearing, he stated he was not convinced that the modified petition meets the specific criteria for substantial change. Mrs. Scigulinsky stated that while the modified plan and the percentages seem to present a case for substantial change, she could not determine that there was actual substantial change. Mr. Borden stated that he would view the petition more favorably if it requested the least relief possible and if the garage was 14 or 15 ft. deep more in line with dimensions for a one- car structure. Mr. Byron Hall expressed his concern that the proposed garage should not shadow the adjacent property. Atty. Gorton responded by saying that could not be determined without viewing the garage design. Mr. Edwards stated that with the original petition, the abutter did a good job of defending her house and property. He felt that the modified petition does not meet the criteria of substantial change.

8 A motion was made by Mr. Borden and seconded by Mr. Edwards that the petition submitted by Paul White 50 Orchard View Road, Portsmouth, RI, AP 45, Lot 23, for the purposes of constructing a garage closer to a property line than zoning allows does not meet the criteria for substantial change and further that the Board not move forward with the petition. The motion was carried with all in favor. Mr. Aguiar stated that the petition was denied for substantial completion. 6. (R) A petition by Chris Fagan, 284 Fairview Lane, Portsmouth, RI for a variance and a special use permit to replace dwelling and deck closer to property line than zoning allows on tax assessor map 46, lot 8, Article IV, Sec B and Article VI, Section A. Chris Fagan, 44 Poplar St., Newport, RI was sworn in. He provided additional graphics for the plan. He was seeking a 20 ft. rear yard setback where 30 ft. is allowable. He noted that he is renovating a house that will become his permanent residence. He noted that the narrow lot is on a steep slope. The design and plan are intended to protect views of his uphill neighbors. He stated that the requested relief is to use a portion of the footprint of the existing house, which is grandfathered outside of the allowable setback, for a deck and a spa. He noted that the deck could be within the setback but the house would have to be moved further up the hill, blocking the neighbor s views. Mr. Borden asked why, if the existing house is being demolished and Mr. Fagan is starting with a vacant lot, could the deck not be constructed within the setback. He noted that with the demolition, the grandfathered status goes away. He noted that the zoning ordinance doesn t recognize views, only required setbacks. He emphasized that the Board according to the law, must determine a hardship or more than a mere inconvenience in determining variances. He noted that he did not view a hardship with the relief request. The Board continued discussing the points made by Mr. Borden. Mr. Borden asked Mr. Fagan to consider withdrawing his petition. Mr. Fagan agreed. A motion was made by Mr. Borden and seconded by Mr. Edwards to allow Chris Fagan to withdraw his petition for 284 Fairview Lane, Portsmouth, RI, AP 46, Lot 8 without prejudice. The motion was carried with all in favor. 7. (R) A petition by Donald Paul Jestings, Judson Avenue, Portsmouth, RI for a variance and a special use permit to construct an addition to shed closer to property line than zoning allows on tax assessor map 4, lot 190, Article IV, Sec B and Article VI, Section A. Donald Paul Jestings, Jr., 852 Anthony Rd., Portsmouth, RI was sworn in. He requested a dimensional variance in order to construct an addition onto an existing

9 shed to provide for more storage. He noted that he had no rear abutter. His neighbors are in favor of the petition. Mr. Borden said that he thought that under zoning, accessory buildings are not permitted to stand alone on a lot without a principal use structure. Mr. Medeiros explained that a single accessory building is permitted, provided the principal use exists on an adjacent lot. Mr. Jestings explained the easement on his lot, which is held by the Common Fence Point Improvement Association. The CFPIA cannot sell any easement according to its charter. Mr. Aguiar stated that Mr. Jestings had demonstrated his need for the dimensional variance. Mr. Aguiar discussed the special use permit criteria with Mr. Jestings and Mr. Jestings stated that the petition as submitted would meet all the criteria of the special use permit. Mr. Aguiar called for abutters or interested parties. There were none Mr. Edwards: Mr. Jestings, 852 Anthony Road, Portsmouth, RI is requesting a dimensional variance and special use permit to construct an addition to an existing shed, located on Judson Ave., which is the abutting lot, which he owns. He wants to put a 12 X 14 ft. addition on the shed, which requires a 16 ft. front yard variance. There is no lot coverage increase. While the 16 ft. variance is excessive, the addition is a continuation of the existing shed. The shed is enclosed in a fence and not accessible to anyone. To deny the petition for dimensional variance would pose more than a mere inconvenience. The petition meets the criteria for a special use permit. I vote to approve. Mr. Borden: The petitioner owns two contiguous lots and proposes that the addition to the shed is going to be on a separate lot, which fronts Judson Avenue. The petitioner does not have a garage on the adjacent principal use lot at 852 Anthony Road. To deny the petitioner the right for a garage or storage would amount to more than a mere inconvenience. The additional lot coverage is 6%. The overall coverage is 9%, well under the 20% allowable standard. The request is reasonable. I vote to approve the dimensional variance. The petition meets the criteria for a special use permit. The setbacks to adjacent properties are irrelevant. The petition meets the dimensional variance relief requirements for substandard lots of record. I vote to approve. Mr. Byron Hall: I was convinced that the petition is reasonable by the photographs presented by the petitioner. I vote to approve the petition based on the comments of Mr. Edwards and Mr. Borden.

10 Mrs. Tia Scigulinsky: I vote to approve both the request for the dimensional variance and the special use permit based on the comments of Messrs. Edwards and Borden. Mr. Aguiar: The Chairman votes to approve the requested dimensional variance and special use permit for the reasons previously stated by the members of the Board. 8. (R) A petition by Matt DeAngelis, 13 Karen Street, Portsmouth, RI for a variance and a special use permit to construct a deck closer to property lines and which will exceed allowable lot coverage on tax assessor map 49, lot 40, Article IV, Sec B and Article VI, Sec A. Matt DeAngelis, 11 Cindy Lane, Portsmouth, RI was sworn in. He was seeking dimensional variance, lot coverage variance and a special use permit in order to construct a deck to have a second exit to the house. He demonstrated hardship in that the existing dwelling does not meet the setback requirements. He stated that the house is currently a rental property but will be come his permanent residence in the future. Mr. Aguiar discussed the special use permit criteria with Mr. DeAngelis and Mr. DeAngelis stated that the petition as submitted would meet all the criteria of the special use permit. Mr. DeAngelis explained the existing portions of the future deck and verified that there would be 366 sq. ft. of new construction. He stated that the deck would be 8 ft. off the ground. Mr. Aguiar presented a letter from an abutter, Arthur Weeks, Jr., 5 Karen St. who expressed his objection to the petition giving no specific reasons. Mr. Smith commented that based on the photos, he could see know obstruction to Mr. Weeks property. Mr. Aguiar called for abutters or interested parties. There were none Mr. Edwards: Matt DeAngelis is before the Board regarding his property at 13 Karen St., Portsmouth, RI with a request for relief in order to construct a deck on his house. The request for the dimensional variance is reasonable because a deck is not an enclosed structure and not used all the time. The deck does not encroach on surrounding property anymore than the house. The petition meets the special use criteria. I vote to approve. Mr. Borden:

11 With regard to the dimensional variance, the petitioner is proposing to keep the deck in line with the existing structure. The petitioner is also being constrained by a narrow lot dimension. With regard to lot coverage, the small lot of 6,800 sq. ft. in R20 zoning is being subject to the requirements of a 20,000 sq. ft. lot. The 3.7% lot coverage request is not excessive given the size of the lot. I approve the request for lot coverage variance. The petition also meets the requirements for dimensional variance and special use permit. I vote to approve. Mr. Byron Hall: I vote to approve the request for dimensional and lot coverage variance as well as special use permit based on the comments of Mr. Edwards and Mr. Borden. Mrs. Tia Scigulinsky: I vote to approve the request for dimensional and lot coverage variance as well as special use permit based on the comments of Mr. Edwards and Mr. Borden. Mr. Aguiar: The Chairman votes to approve the requested dimensional and lot coverage variance, and special use permit for the reasons previously stated by the members of the Board. A motion to adjourn was made by Mr. Edwards and seconded by Mr. Borden. The motion was carried with all in favor. The meeting was adjourned at 9:22 p.m. Respectfully submitted, Dede Walsh, Recording Secretary