2013-11-28 / News

Court overrules zoning decision

A judge has overturned a 2010 decision by the Jamestown Zoning Board of Review, according to court papers, and granted Henry and Mary Tarbox a dimensional variance to add an in-law apartment to their home at 24 Clarke St.

The decision was filed last March. Town officials have not commented or indicated publicly how much money, if any, the case outcome will cost taxpayers if Jamestown is obligated to reimburse the Tarboxes for their legal costs.

The Tarboxes could not be reached for a comment, but their lawyer, Peter Brockmann of Jamestown, said only one issue remains to be decided.

“The issue of whether and how much the town will have to reimburse my clients for their attorney fees under the Equal Access to Justice Act remains in litigation,” he said.

The couple went before the local board in October 2010 and asked for the dimensional variance to convert their single family-house into a duplex. The reason was to provide a place for Henry Tarbox’s mother to live. At some point in the future, the couple would themselves move into the apartment and give the rest of the home to their children, so the entire family could continue living in Jamestown, Tarbox said.

Three members of the Zoning Board of Review – Richard Boren, Richard Cribb and Dean Wagner – supported the variance, but four favorable votes were required for passage. Ultimately, the motion failed 3-2, with Thomas Ginnerty and Richard Allphin opposed.

Ginnerty said at the October 2010 meeting that the in-law apartment could at some point be rented and used for financial gain. The Zoning Board filed its decision in November, and the Tarboxes appealed in December 2010.

In his ruling in Newport Superior Court, Justice Brian Van Couyghen said the board failed to provide sufficient reason for turning down the Tarboxes’ request and had erred when they denied the variance. The judge said the Tarboxes had met their burden of proof and should have received the relief.

“After reviewing the record, this court finds that the Zoning Board‘s action was clearly erroneous in view of the reliable, probative and substantial evidence,” the judge wrote in the decision’s conclusion. “Substantial rights of the Tarboxes have been prejudiced. Accordingly, the Zoning Board‘s decision is reversed, and the Tarboxes‘ application for a dimensional variance is granted. Counsel for the prevailing party shall submit an appropriate order for entry.”

The order was entered on March 25.

In summing up the case facts, the judge said the Tarbox property measures 11,427 square feet, and the existing use, a single-family home, conforms to the zoning requirements. As proposed, the new in-law apartment, with a bedroom and 1.5 baths, would create a duplex. It is an allowable use in the R-8 zone, the judge continued, but requires a minimum lot size of 15,000 square feet, hence the need for a variance.

During the local hearing, the zoning board members initially offered a motion to allow the variance, citing seven reasons of fact, the judge also noted. All the rea- sons “supported the majority position to grant the relief sought,” the judge added. Specifically, other duplexes are already in the same neighborhood and the use is consistent with the town’s comprehensive plan. Also, the applicants didn’t need any additional variances to meet minimum setback requirements, and the building with the addition would cover only 17 percent of the property. Finally, no residents objected.

In contrast, the judge said, the minority members did not cite any facts to support their reasons for denying the variance.

Although standard procedure would be to send the case back to the Zoning board, due to the lack of information, the court instead decided to grant the variance. The court ruled that it had sufficient information to determine that the local board had erred when it denied the variance. Specifically, the judge said, the Tarboxes had not created the hardship by prior uses of the property and they needed relief because of the property’s unique characteristic: the lot size. There was no evidence, the judge said, they were seeking financial gain by building the in-law apartment. Moreover, the request amounted to the “least relief necessary,” and would not alter the character of the surrounding area. Finally, if denied, the hardship that would result would be more than a “mere inconvenience” because the family would not be able to stay in Jamestown.

On Aug. 19, the Jamestown Town Council entered into a closed-door session to discuss the case, citing the exception that applies to “potential litigation” under the open-meetings law. When they returned to open session, Council President Kristine Trocki offered a motion to instruct the town solicitor to explore “settlement options” and, if appropriate, to “enter into settlement agreements” regarding the Tarboxes’ appeal.

Councilor Mary Meagher made a motion to seal the minutes of the executive session minutes. It passed unanimously.

Town Solicitor Peter Ruggiero referred questions about the case to Finance Director Tina Collins, who was interim town administrator at the time. She declined to comment on the case, except to refer to the motion that the councilors made in open session on Aug. 19 when they instructed the solicitor to “resolve” the case. She indicated one item still remains to be cleared up but could not divulge specifics.

Current Town Administrator Kevin Paicos said Monday he could not comment because he is unfamiliar with the case.

Ruggiero could not be reached. A message asking for an update was left at his office on Monday afternoon.

Both the clerks at the Providence Superior and Newport Superior courts said no appeal was filed in the case, and the deadline for an appeal was past, noting the judge had decided the case in the Tarboxes’ favor back on March 9.

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