TOWN OF SCITUATE ZONING BOARD OF REVIEW INRE: CASE NO. 1200 PARAMOUNT DEVELOPMENT GROUP ONE MAIN STREET AP 3, LOT 8; AP 8, LOTS 1, 114,117 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”), submit this Closing Memorandum and respectfully request that the Honorable Zoning Board deny the referenced Application. In support thereof, the Applicant does not meet the requirements for the issuance of the requested special use permit and variances as supported herein. 1 cial use permit m: t hi itis imensii riances. As discussed in our earlier memorandum, the Scituate Zoning Board may not issue a special use permit in conjunction with dimensional variances. 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. We will not repeat our entire discussion contained in Section 1 of our earlier memorandum submitted to the Zoning Board, but rather incorporate by reference | | |See Section 1, Memorandum Objecting to Zoning Board of Review's Jurisdiction and, Alternatively, Objection to Applicant's Request for Relief. 2 mit requirements are not supported by evi therefore, must be denied. Even if the Zoning Board finds that a special use permit may be issued in connection with dimensional variances, the Zoning Board cannot make the positive required findings for the issuance of a special use permit. A special use permit may only be granted if the Zoning Board can make the following positive findings: a) It will be compatible with the neighboring land uses. b) Itwill not create a nuisance in the neighborhood. ©) Itwill not hinder the future development of the town. d) [twill be in conformance with the purposes and intent of the comprehensive plan and the zoning ordinance. Below is a discussion of the evidence presented that requires denial of the application. a, The use as proposed will not be compatible with the neighboring land uses. The Zoning Board was presented with expert testimony from Ashley V. ‘Sweet, Professional Planning Consultant, who opined that the use is not compatible with neighboring land uses, because of the excessive density proposed on the project site. Ms. Hahn testified that the project site far exceeds the density of the surrounding neighborhood and, therefore, is not compatible. The Zoning Board also heard from many members of the public, who testified similarly, Members of the Zoning Board may also use their personal knowledge about this area of Scituate to make the same determination. Clearly, when relating the proposal to the surrounding neighborhood, adding two massive buildings to only one existing |building, including the increased parking necessary to accommodate the 193 new residences, will not be compatible with the neighboring land uses. The us create a nuisance in the neighborh Inher report and testimony, Ms, Sweet testified to the nuisance that this project will create in the compact Hope Village area. No services are offered to accommodate this type of development, particularly RIPTA bus service. All residents will require the use of a vehicle. This will exacerbate the “Level F” traffic service testified to by the Applicant's own traffic engineer and noted by the Zoning Board's peer review consultant. The peer review consultant discussed that a Level F service is the worst level of service for wait times at intersections and that the Zoning Board members may make their own determination if adding wait times to the already deplorable level of service is acceptable. Again, the Zoning Board heard testimony from many residents of the area regarding poor traffic conditions already and the reasonable expectation that traffic will get worse with 193 new residential units, eas pro} wi the future de ‘Adding 193 new dwelling units on one property will clearly hinder the Town's capacity for future development. The Zoning Board must consider the services that will be required for the number of new residents, including school-age children, police, fire, rescue, senior services, and recreation, among others. As Ms. Sweet testified, the influx of that number of residences (and residents) will be staggering, Importantly, the Zoning Board may consider that the number of school- age children cannot be considered in a short-sighted manner. Consider older |residents of Scituate may sell their 3-bedroom homes to downsize to move into the proposed project, which will open a residence to a family. Ironically, the Applicant argues that the proposed project will open up a new housing choice for residents, but many of those residents will leave bigger homes behind to be occupied by new residents of Scituate. 4. The useas proposed will not be in conformance with the purposes din ce, Importantly, the Zoning Board must make a finding that the special use permit “will be in conformance with the purposes and intent of the comprehensive plan and the zoning ordinance.” As discussed above and during the public hearing, the Zoning Board cannot make this finding, as a special use permit shall not be issued in conjunction with dimensional variances. Ms. Sweet submitted a lengthy report identifying specific provisions of the Comprehensive Plan that are in direct conflict with Scituate’s Comprehensive Plan, including the Land Use, Housing, Natural Resources, and Cultural Resources Elements, as well as the Low and Moderate Income Housing Plan. The proposed plan exceeds the number of total housing units added in Scituate over the last ten years,all on one site, Affordable housing units should not be confined to one property in the Town, but should be scattered throughout Scituate in accordance with state law and the Comprehensive Plan. Moreover, the Comprehensive Plan supports a modest density increase when affordable units are proposed, certainly not the addition of two super-sized buildings. With regard to zoning, the clear intent of zoning is that a special use permit is not to be issued in conjunction with dimensional variance. The Zoning Board cannotmake a finding of conformance in this regard. Furthermore, the variances are excessive and do not meet the standards for issuance as discussed below. 3. The dimensic do not mi 1s OV: With regard to variances, it is 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). 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 (R1. 2003) (acknowledging that “the size, location or the type of relief sought [may] alter the general character of the surrounding area and/or the intent or purpose of the comprehensive plan or zoning ordinance,” e.g, “a height variance . that would result in a structure so massive or out of place as to alter the general character of the surrounding area.”) 1d, at 693. When combined with a request for a special use permit, the zoning board must decide whether granting the special-use permit conforms with the requirements of [the special use permit standards] and, further, whether a special-use permit couple with dimensional relief adversely affects the surrounding area.” Id. Ina recent Superior Court case, the Court found that the denial ofa dimensional variance to allow parking expansion for four cars was allowable when. the Zoning Board found it “was of such an extent to impair the character of the neighborhood.” Weiss v. Zoning Board of Review, Sup. Ct, C. A. No. 09-2814, Savage,J. October 26, 2012. A zoning board may not grant more relief than is necessary simply to suit the preferences of a particular applicant. See Roland Chase, R. Zoning Handbook § 157 (2d ed. 2006) (citing DiDonato v. Zoning Ba, of Review of Johnston, 104 R. 158, 242 A.2d 416 (1968) (applicant 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). Here, the Applicant demands additionally density for profit, not to enjoy a legally permissible use. This Applicant fails to meet the enumerated requirements for approval. (a) The hardship is not due to the unique characteristics of the subject land. Clearly, the Applicant here intends to over-develop this property with an excessive number of variances. The number and extent of variances is not due to the unique character of the subject land. In fact, this is a large property, which can certainly accommodate substantial development without any variance. The fact that the Applicant requires a 6,316,589 square foot variance to allow 5 ¥% times the number of housing units allowed by zoning is, per se, excessive and unreasonable and not due to the unique character of this 32 acre site. Furthermore, additional val inces including height, parking, and setbacks would not be required ifthe Applicant had made a more reasonable proposal (b) The hardship results primarily from the desire of the Applicant to realize greater financial gain. ‘The Applicant's representatives have testified that the primary reason for the excessive variances is to realize greater financial gain for the Receivership. This isundisputed. The Town of Scituate may not treat property owners differently because of a Court proceeding. This standard cannot be met by the Applicant. (c) The granting of the requested variance will not alter the general surrounding area ose ance or the comprehensi i wi i Ss based ‘The Zoning Board has heard from neighbors and experts regarding the excessive number of variances that will surely serve to alter the general character of the surrounding area, The addition of two buildings, with heights of more than 100% over what is permitted by zoning, will certainly change the character of the area, and which will include traffic to support 5 % times the number of dwelling. units allowed by zoning. In addition, Ms. Sweet testified and we have argued herein, regarding the lack of conformance with the zoning ordinance and comprehensive plan. (4) The relief to be granted is not the least relief necessary. The Zoning Board cannot make a finding that the excessive variances requested is the least relief necessary. The combination of variances and the excessive nature of each cannot be determined as reasonable. As stated herein, if the Applicant met the density requirements, or proposed substantially less than 5 ¥% times the density, then height (of over 100% of what is allowed) and parking variances would also be more reasonable. © 1 inconvenience: Lau: e more of is gr: is i There is no hardship. The Applicant is clearly attempting to create value as a Receiver. There is no inconvenience. Granting this application would simply be a |windfall for a Receiver who must pay creditors in a court matter. The Town of Scituate may not and should not assist in simply creating value by not applying zoning regulations fairly and consistently on all applications. 4. The Zonit wma) viously) The Zoning Board of Review may not rely ona previously-issued 2006 Decision that granted some relief for this property, but not this project. 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 the 2006 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. 5 i We provided a detailed discussion regarding this issue in our original memorandum submitted to the Board and incorporate that discussion by reference. 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 permits in connection with dimensional variances. Additionally, for the reasons 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, By their attorney, fidm W. Harsh (#3688) 2258 Post Road Warwick, RI 02886. |