Swiatek house.PNG

Westerly officials said this new house at 34 Lawton Ave. in Misquamicut exceeds the height limit established in town regulations. The owners assert in their Superior Court complaint that the structure's height is allowed under state law. Sun file photo

WAKEFIELD — A dispute over the height of a newly constructed house on Lawton Avenue in the Misquamicut section of Westerly is playing out in Washington County Superior Court.

The case involves property at 34 Lawton Ave. that John S. and Denise L. Swiatek purchased in July 2017. The couple, formerly of Quaker Hill, Conn., decided to tear down the beach cottage that was there and build a new house for year-round residency.

When municipal inspectors went to the completed 2,436-square-foot house they discovered it was about 1.4 feet over the height limit established in the town's zoning regulations. When municipal Building Official David Murphy issued a Notice of Intent to Enforce the state building code, the Swiateks were ordered to vacate the house. They had moved in even though the building lacked a certificate of occupancy.

After leaving, the Swiateks filed an application with the Westerly Zoning Board of Review seeking a height variance that could have paved the way for issuance of a certificate of occupancy. But on July 10, the board, on a  4-1 vote, denied the request.

For the time being, the couple are allowed to live in their new home based on a temporary certificate of occupancy that Murphy issued on Aug. 2, the day the zoning board's decision was formally issued in writing. The temporary certificate was issued as part of an agreement reached by William R. Landry, the Swiateks' new lawyer, and Todd J. Romano, the board's lawyer.

As anticipated in the agreement, the Swiateks filed an administrative appeal of the zoning board's decision in Superior Court on Aug. 22. The agreement between the lawyers allows the them to stay in their Misquamicut home unless a Superior Court judge rules in the town's favor.

In the complaint filed as part of the couple's appeal, Landry argues that rather than using the height standard in the town's zoning regulations for a flood hazard area, the board should have applied the height standard in the state Building Code. There is a significant difference. The town's zoning regulations allow for up to 3 feet of freeboard or space above the base flood elevation. The state building code allows for up to 5 feet of freeboard.

Landry also argues that the Swiateks did not need a variance to the town's regulations and only applied for one "out of an abundance of caution."

"The dimensional variance sought was, in all events, unnecessary, inasmuch as the dwelling is approximately 1.5 feet below the maximum height under controlling law," Landry argued in the appeal.

Westerly failed to adopt the 5-foot freeboard standard when it was established as an amendment to the state Zoning Enabling Act in 2016, Landry wrote. "However, by operation of law, the state Zoning Enabling Act is mandatory as to local zoning ordinances and is deemed to be in place in such ordinances whether or not a municipality has brought its zoning ordinance into compliance with same," he wrote.

During the board's hearing on the variance, Romano said the town's zoning regulation was the controlling standard, not the standard outlined in state law. In the town's response to the Swiateks' appeal, Romano reiterates that position. Steven Surdut, the lawyer who represented the Swiateks during the zoning board hearing, made many of the same points that Landry is making in his appeal.

Both sides are expected to file memorandums.

Romano declined to comment for this article. Landry could not be reached for comment.

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