TOWN OF SCITUATE ZONING BOARD OF REVIEW IN RE: CASE NO. 1200 PARAMOUNT DEVELOPMENT GROUP ONE MAIN STREET AP 3, LOT 8; AP 5, LOTS 1, 114,117 MEMORANDUM OBJECTING TO ZONING BOARD OF REVIEW’S JURISDICTION AND, ALTERNATIVELY, OBJECTING TO APPLICANT'S REQUEST FOR RELIEF Neighboring properties owners, john N. and Mary E, Allan, both of 103 Main Street, Hope, Rhode Island and Brian Martin, of 75 Main Street, Hope, Rhode Island, all persons requiring notice of this application, and Hope Mill Concerned Citizens(collectively referred to as "Remonstrants"), hereby object to the issuance of requested special use permit and dimensional variances based on jurisdictional and other legal grounds. The following supports our objections. use permit and dimensional variances because the Zoning Ordinance does ‘The Rhode Island Zoning Enabling Act clearly and unequivocally provides that, when a municipality desires to allow that both special use permits and dimensional variances be granted on the same proposal, the Zoning Ordinance must so state. ‘The Zoning Enabling Act states, in pertinent part: “The zoning board ... has the power to grant dimensional variances where the use is permitted by special-use permit if provided for in the ‘special use permit sections of the zoning ordinance. RIGL § 45-24-41(e}(2). [Emphasis added] And...“The ordinance additionally may provide that an applicant may apply for, and be issued, a dimensional variance in conjunction with a special-use permit.” RALGL, § 45-24-42(c). [Emphasis added.] The Scituate Zoning Ordinance does not so provide. In 1998, the Supreme Court decided the matter Newton v. Zoning Board of Review of the City of Warwick. The case involved an appeal from the Warwick Zoning Board, which had granted a special use permit and a dimensional variance to build a six-unit multifamily dwelling. Similarly to this case, the applicants in Newton required a special use permit for the multifamily use, as well as several variances, including requested relief from minimum lot area, side lot line, rear lot line, parking, density design and landscaping. 713 A.2d 239, 240 (RI. 1998). Although the Zoning Board heard and relied on substantial expert testimony in granting all of the relief requested, the Superior Court on appeal reversed the ‘Zoning Board’s decision, finding that the decision was “in violation of statutory and ordinance provisions and was affected by error oflaw.” Id. at 241. The Court, in relying on its prior decision Northeastern Corporation v. Zoning Board of Review of New Shoreham, 534 A.2d 603 (Ril. 1987), and noting that the then “new” Zoning Enabling Act (P.L. 1991, ch.307, § 1) did not change the relevant language to effectively supersede Northeastern case, held that a special use permit could not be issued in connection with dimensional variances. Additionally, the Court noted that the definition of dimensional variance “anequivocally command that a dimensional variance be granted only in connection with the enjoyment of a legally permitted beneficial use, not in connection with ause granted by special use permit.” Newton, 713 A.2d at 242, see RLGL. § 45-24- 31(66)(ii) (in Newton, the definition was found at 45-24-31-61(b), but the language has not changed). In response to Newton, in 2002, the Rhode Island General Assembly amended the Zoning Enabling Act to allow Zoning Boards to grant special use permits in connection with dimensional variances, but only when the Zoning ‘Ordinance provides the language to allow this. Specifically, the Zoning Enabling Act was amended to provide that, as to dimensional variances: “The zoning board of review has the power to grant dimensional variances where the use is permitted by special-use permit if provided for in the special-use permit section of the zoning ordinance” [Emphasis added.] And as to special use permits, the language was amended to state “The ordinance additionally may provide that an applicant ma apply for, and be issued, a dimensional variance in conjunction with a special use.” [Emphasis added.] See P.L. 2002, Ch. 197, $2342; and P.L. 2002, Ch. 218, H- 7006 ‘The Town of Scituate has not amended the special use section of the zoning ordinance to allow the Zoning Board to grant dimensional relief in connection with a special use permit. Therefore, the Zoning Board has no jurisdiction to entertain the requested variances and the application must be dismissed on those grounds. 2. e Zoning Bi f Review sviously-i Decision that granted some relief for this property, but not this project. Notwithstanding our position above that this application may not be considered by the Zoning Board on jurisdictional grounds, we also object to any consideration of a 10+ year old decision that granted some relief for this property,but for a significantly different project. We have seen no evidence of any legal document that would keep the2006 decision effective for over 10 years, and the “tolling statute” did not take effect until late 2009, so that does not give the property ‘owner any rights in a 2006 decision. In fact, our review of Town records indicate that the 2006 Decision expired prior to the initial Receivership in March 2008. Furthermore, the property owner will not meet conditions of approval; most importantly, providing sewer facilities to the project. In 2006, the Zoning Board of Review granted a special use permit for 155 dwelling units within the Hope Mill structure, 52 dwelling units to be constructed in several new buildings, as well as dimensional relief for density, yard setbacks, lot width, and parking setback. (the "2006 Decision”). As a part of the significant density bonus granted at that time, the Zoning Board considered (as a finding of fact), that the development would provide public sewers to the project, as well as connections of the sewer to municipal agencies, and laterals to property owners abutting the new sewer line. The Board conditioned approval on the development receiving adequate and required parking, including from property located in the Town of Coventry. Contrary to the 2006 decision, the current application (the “Application”) does not include properties included the 2006 Decision (ie,, the 2006 Decision included Plat §, Lots $8, 69 and Plat 5, Lot 107). In addition, the Application does not propose sewer for the site and for neighboring properties. Moreover, this Application requires additional relief, including (1) a height variance at over 100% of the maximum height allowed, (2) a parking variance of almost 40% of what is,required; and (3) more than 5 times the area allowed fora building in the Hope Village Overlay District. Because (1) the 2006 Decision is expired, (2) the proposal does not meet conditions of approval, and (3) in any event, this Application requests relief not contained in the 2006 Decision, the Zoning Board must hear this Application as new and without regard to a prior decision. 3. The special use permit and the dimensional variances do not meet the standards for approval. As will be discussed by our land use expert in her report and presentation, these excessive requests for variances are not consistent with many parts of the Scituate Comprehensive Plan and will not be in character with the surrounding area, standards that are required in order to grant a special use permit and dimensional relief, As stated previously herein, the Zoning Board does not have jurisdiction to hear an application for a special use permit in connection with dimensional variances. Having said that, the proposal does not meet the standards for either. In order for the Zoning Board to approve a special use permit, the Board must find: (1) it will be compatible with the neighboring uses; (2) it will not create a nuisance in the neighborhood; (3) it will not hinder the future development of the town; and (4) it will be in conformance with the purposes and intent of the comprehensive plan and the zoning ordinance. Ata minimum, the proposal does not comply with prongs (1) and (4) of the required standards. As presented by abutters during the public hearing, and as will be supported by expert testimony from our land use consultant, the proposal is neither compatible with theneighborhood, nor is it in conformance with the Town's comprehensive plan. Requests for relief from requirements of the Zoning Ordinance are excessive, and will not meet the standards for approval. With regard to variances, itis fundamental that, while a variance waives the strict letter of a zoning ordinance, it "should preserve the spirit and purpose of the ordinance.” E.C. Yokley, Zoning Law and Practice § 20-1 (4th ed. 2002) (citing Bamber v. Zoning Bd. of Rev. of Foster, 591 A.2d 1220 (RL. 1991)). With respect to dimensional variances in particular, the Rhode Island Supreme Court has instructed that, in determining whether a dimensional variance is contrary to the intent of an Ordinance or Comprehensive Plan, the inquiry must focus on the nature and extent of the relief requested. Lischio v. Zoning Bd. of Rev, of N. Kingstown, 818 A.2d 685, 683 (RI. 2003). For parking, a "variance to enable a property owner to provide off-street parking may not be so extensive as to change the zoning scheme established by the Ordinance.” Edward H. Ziegler, Rathkopf's The Law of Zoning and Planning § 83:24 (4th ed. 2012) (emphasis added.) Furthermore, An applicant seeking a dimensional variance must prove that “the relief sought is minimal to a reasonable enjoyment of the permitted use to which the property is proposed to be devoted.” Standish-Johnson Co. v. Zoning Bd, of Rev. of Pawtucket, 103 RI. 487, 492, 238 A.2d 754, 757 (1968); see also Lincoln Plastic Products Co. v. Zoning Bd. of Rev. of Town of Lincoln, 104 RI. 111, 115, 242 A.2d 301, 303 (1968) (Zoning boards’ authority to grant dimensional variances “is limited to the extent of relief demonstrated to be reasonably necessary to the enjoyment of the permitted use sought to be served."). A zoning board may notgrant more relief than is necessary simply to suit the preferences of a particular applicant. See Roland Chase, R.l. Zoning Handbook § 157 (2d ed. 2006) (citing DiDonato v. Zoning Bd. of Review of Johnston, 104 RL. 158, 242 A.2d 416 (1968) (app) ant allowed a variance to construct a one-family house but not allowed to deviate from front and side yard restrictions to build larger than one- family house where applicant claimed a larger house was necessary because his family had grown). As will be shown through testimony and reports, the standards for both a special use permit and for dimensional variances do not meet the required standards that the Zoning Board must find and, therefore, this Application must be denied. Conclusion This Application is not properly before the Zoning Board, because the Town of Scituate has not permitted, by ordinance, the Zoning Board to issue special use in connection with dimensional variances. Additionally, for the reasons per stated herein, the Zoning Board should not rely on a 2006 Decision granting relief for a completely different project. Finally, the Applicant cannot meet the required standards for both a special use permit and dimensional variances requested. Forthese reasons, the Remonstrants respectfully request that this Honorable Zoning Board dismiss the Application and deny the relief requested. Remonstrants, Bytheiratiprney, MM Ui Ti | 2 ‘illiam W. Harsh (#3688) 2258 Post Road Warwick, RI 02886