Minutes of the April 26, 2005
Meeting
A
regular meeting of the Jamestown Zoning Board of Review was held at the
Jamestown Library,
Thomas Ginnerty
Don Wineberg
Raymond Iannetta
Richard Boren
Joseph Logan
David Nardolillo
Elizabeth Brazil
Dean Wagner
Also
present: Brenda Hanna, Stenographer
Pat Westall, Zoning Clerk
Fred Brown, Zoning Officer
A. Lauriston Parks, Counsel
MINUTES
Minutes
of the
A motion
was made by Thomas Ginnerty and seconded by Richard Boren to accept the minutes
of the
The
motion carried by a vote of 5 – 0.
Thomas
Ginnerty, Don Wineberg, Raymond Iannetta, Richard Boren, and Joseph Logan voted
in favor of the motion.
David
Nardolillo, Elizabeth Brazil and Dean Wagner were not seated.
CORRESPONDENCE
A motion
was made by Thomas Ginnerty and seconded by Don Wineberg to continue the
request of
The
motion carried by a vote of 5 – 0.
Thomas
Ginnerty, Don Wineberg, Raymond Iannetta, Richard Boren, and Joseph Logan voted
in favor of the motion.
David
Nardolillo, Elizabeth Brazil and Dean Wagner were not seated.
Town
of
A motion
was made by Thomas Ginnerty and seconded by Don Wineberg to continue the
request of the Town of
The
motion carried by a vote of 5 – 0.
Thomas
Ginnerty, Don Wineberg, Raymond Iannetta, Richard Boren, and Joseph Logan voted
in favor of the motion.
David
Nardolillo, Elizabeth Brazil and Dean Wagner were not seated.
Cingular
Wireless
A motion
was made by Thomas Ginnerty and seconded by Don Wineberg to continue the
request of Cingular Wireless to the
The
motion carried by a vote of 5 – 0.
Thomas
Ginnerty, Don Wineberg, Raymond Iannetta, Richard Boren, and Joseph Logan voted
in favor of the motion.
David
Nardolillo, Elizabeth Brazil and Dean Wagner were not seated.
Sheehan
A motion
was made by Thomas Ginnerty and seconded by Don Wineberg to continue the
request of Kerry Sheehan to the
The
motion carried by a vote of 5 – 0.
Thomas
Ginnerty, Don Wineberg, Raymond Iannetta, Richard Boren, and Joseph Logan voted
in favor of the motion.
David
Nardolillo, Elizabeth Brazil and Dean Wagner were not seated.
OLD
BUSINESS
Clancy
A motion
was made by Thomas Ginnerty and seconded by Raymond Iannetta to deny the
request of David M. Clancy and Jennifer R. Clancy, whose property is located at
382 North Road, and further identified as Tax Assessor’s Plat 7, Lot 22 for a
Special Use Permit, as provided under Article 3, Section 302 (District
Dimensional Regulations), and Article 6, Sections 600 (Consideration of the
Zoning Board), 601(Special Use Permits Authorized by this Ordinance), and 602
(Burden on the Applicant) of the Zoning Ordinance, and any other relevant
sections of the Zoning Ordinance for retail sales of Home Crafted Products
Manufactured on the Premises.
This Board
had determined that this application does not satisfy the requirements of
Article 6, Sections 600 and 602.
This motion
is based on the following findings of fact:
1.
Said
property is located in a RR200 zone and contains 65,340 sq. ft.
2.
The
applicants have owned the property located at
3.
In
2003 they applied for dimensional relief, that application is incorporated by
reference hereto. At that time the
applicant sought relief pursuant to Article 3, Section 311, (Maximum Size of
Accessory Structures) to construct an oversize accessory structure 30 x 30’ in
which to house a glass blowing studio.
Additionally, they sought relief under Article 1, Section 104 or 103, definition
29, Customary Home Occupation, to conduct a home business in a space exceeding
200 sq. ft.
4.
That
subsequent to the 2003 decision of the Board the applicants constructed an
accessory structure on the property.
5.
That
soon thereafter the applicants installed various equipment, including furnaces,
and commenced operation of the glass blowing studio.
6.
That
in addition to glass blowing equipment the applicants allocated an area in the
accessory structure that served as a display area.
7.
That
the applicants created a parking lot area that could accommodate multiple
vehicles.
8.
That
the applicants have erected a sign and light that are near the road and readily
visible to passing traffic.
9.
That
during consecutive days multiple vehicles have parked in the parking area at
the subject area.
10.
That
on multiple consecutive dates multiple vehicles have parked to the side of
11.
That
the applicants have on many instances conducted retail sales at the subject
property, when it was open to the public.
12.
That
the applicants have breached a condition contained in the April 2003 decision
in that they have allowed more than occasional public openings that include
commercial activities, in addition to studio visits to observe glass blowing
production.
13.
In
that regard, occasional is defined by Webster’s New Universal Unabridged
Dictionary as of irregular occurrence, happening now and then, or infrequently.
14.
On
15.
At
no time did the applicants request permission to conduct retail sales of any
kind from the facility on
16.
At
the close of that hearing, the Board granted the relief sought in part. That decision is incorporated by reference
herein.
17.
The
present application was heard at the March Zoning Board meeting,
18.
Mr.
Taber testified as a traffic expert. He
incorrectly stated that the area speed limit was 25 miles per hour. He was
unfamiliar with lighting in the area; he was unfamiliar with road conditions or
road contours. He did not perform an on
location study.
19.
In
fact, the speed limit is 40 mph, routinely exceeded. There is a single lane of
travel in each direction. There is a
single streetlight in the immediate area, the property is located at the crest
of a hill – drivers approaching from either direction have reduced visibility
of traffic ahead or approaching in the opposite direction. There are passing restrictions in effect in
the immediate area.
20.
There
is nowhere to park safely on the road in the area of the subject area. The road has a small paved surface to each
side of the travel lanes, much more narrow than the width of a car. Once off the pavement there is an unevenly
graded dirt/gravel shoulder, some parts are trench like.
21.
In
conclusion, the testimony of Mr. Taber was not probative as to issues of
traffic; in fact his testimony was highly misleading. The area near the subject property does not
provide for a safe place to park on
22.
The
testimony of George Durgin was equally unpersuasive. He was qualified as an
expert real estate appraisal but concentrated his testimony in the area of the
appropriate use of the subject property.
23.
The
applicants are before this Board seeking a special use permit the language of
which are contained in Article 6, Section 601 and 602.
24.
The
applicant’s state in their application for a special use permit that they are
seeking relief in order to conduct retail sales of what they describe as home
crafted manufactured products.
25.
Article
3, Section 302, District Dimensional Regulations, Section VI (G) (11) permits
the sale of home crafts products manufactured on premises by special use
permit. Accordingly, the first issue presented is to determine what constitutes
a home crafted manufactured product.
26.
Our
first consideration is to determine the nature of products produced as a result
of activity that is classified as a customary home occupation, the classification
attributed by the applicants to their activity in their first application for
relief filed on
27.
The
definition of customary home occupation is contained in RIGL Section 45-24-31
(33) where it states that a customary home occupation is one customarily
carried out for gain by a resident as an accessory use in a residential unit.
28.
The
Jamestown Zoning Act defines customary home occupation in Article 1, Section
103, definition 29. (p.7) and states as follows: (29) Customary Home
Occupation. Any activity customarily carried out for economic gain by a
resident which:
(a)
is
customarily carried on in a dwelling unit or in a building or other structure
accessory to a dwelling unit,
(b)
is
carried on by a member of the family residing in the dwelling unit,
(c)
is
clearly incidental and secondary to the use of the dwelling unit for
residential purposes, and,
(d)
conforms
to the following conditions:
1)
Performed
by the resident and using no more than 200 sq. ft. of floor area and such
activity shall not be visible from a lot line;
2)
There
shall be no exterior display, no exterior sign (except as permitted under
Article 13), no exterior storage of materials, and no other exterior indication
of the home occupation or variation from the residential character of the
principal building;
3)
No
vibration, smoke, dust, odors, heat or glare, electrical interference, or
offensive noise shall be produced;
4)
No
traffic shall be generated by such home occupation in greater volumes than
would normally be expected in a residential neighborhood;
5)
Any
parking required for the conduct of such a home occupation shall be provided
off the street.
29.
The
next step in this analysis is to make reference to Article 3, District
Dimensional Regulations, which shall be met for all uses of land permitted
under the
30.
Article
3, Section 302, Category VII (A) (4) states that customary home occupations are
permitted uses in an RR200 zone; however, customary home occupations are
identified in that section as a subcategory of Commercial Services, and
Professional offices. There are no
activities listed in the section that even remotely resemble the stated
activities of the present applicant, production of glassware.
31.
Conversely,
category VIII lists industrial activities and IX lists industrial and
manufacturing activities. A review of
those functions more closely resemble the activities of the applicants;
however, with the exception of storage or transfer of fishery equipment, all
industrial or manufacturing activity are not permitted in an RR200 zone. Accordingly, the relief needed by the
applicant should be a variance, not a special use permit.
Accordingly,
this Board makes the following determination:
I.
That
the production of glassware as performed by the applicant does not constitute a
customary home occupation as defined in the ordinance in Article 3, Section
302, Category VII, subparagraph 4.
II.
That
the applicants have failed to conform to the conditions established in Article
1, Section 103, definition 29, in particular sub paragraphs 1, 2, 4, and 5,
regarding the activity defined as a customary home occupation (p7).
III. That judged as an application for a
special use permit pursuant to Article 6, Section 601 and 602; the applicant
has failed to sustain their burden of proof.
In particular, the applicants have presented no probative
evidence that the relief sought would not result in a substantial health and
safety problem relating to traffic operation at the
Further, the granting of this application would substantially
and permanently injure the appropriate use of the property in the surrounding
area. That area, as well as the subject
property, is designated as RR200, wherein permitted activities are primarily
traditional agricultural pursuits.
That the granting of the relief sought would not be in keeping
with the general purposes of the zoning ordinance or the comprehensive plan, in
particular that a retail sales operation of any sort would be detrimental to
the rural character of the area and contrary to the economic development plan,
in particular Policy #1, to continue to direct commercial development into
existing commercial zones.
The motion carried by a vote of 5 – 0.
Thomas Ginnerty, Raymond Iannetta, Richard Boren, David Nardolillo, and Elizabeth Brazil voted in favor of the motion.
Joseph Logan was recused and Don Wineberg and Dean Wagner were not seated.
NEW
BUSINESS
A motion
was made by Richard Boren and seconded by Raymond Iannetta to table the request
of Barbara, Paul, Frank, and Gary Kosacz and refer them back to CRMC and come
back with something more definitive to put the Board in a better position to
determine if it is the least relief.
The motion carried by a vote of 4 – 1.
Thomas Ginnerty, Raymond Iannetta, Richard Boren, Joseph Logan, and David Nardolillo voted in favor of the motion.
Joseph Logan voted against the motion.
Elizabeth Brazil and Dean Wagner were not seated.
A motion was made By Thomas Ginnerty to continue the remaining
items on the agenda to the
ADJOURNMENT
A motion
was made and seconded to adjourn at
The
motion carried unanimously.