WESTERLY — A couple will soon learn how to go about shaving about 1.4 feet off their newly built home on Lawton Avenue in Misquamicut.

The couple, John and Denise Swiatek, hired Peter Sacco's Sacco Enterprises of Charlestown to raze the old summer beach cottage at 34 Lawton Ave. and build a new two-story, four bedroom house for year-round occupancy. Sacco told the Zoning Board of Review during a hearing Thursday night that he inadvertently exceeded the town's height regulation. The board denied the Swiateks' application for a variance to the height regulation, with a majority of board members saying they could not approve the variance without undermining the integrity of the town's zoning regulations.

The board's refusal means the height of the house must be reduced.

While the house exceeds the height limit based on its federal flood zone designation, Steven Surdut, the Swiatek's lawyer, noted that the designations often change as the government seeks ways to mitigate flood damage and the effect of climate change. Further, Surdut noted that if the house was in an adjacent zone, with a higher base flood elevation, it would meet the town's height regulation.

"The applicants are here regarding a new, modern code-compliant, flood zone-compliant and, in fact, I would say forward thinking flood zone-oriented structure," Surdut said.

The problem, Surdut said, involves the amount of freeboard, or space above the base flood elevation. The town's regulation allow builders to elevate living space 3 feet above base flood elevation, but Sacco exceeded the 3-foot limit, Surdut said.

Surdut noted that the state building code allows for up to 5 feet of freeboard and suggested that the state code might override the town's regulations.

The zoning board's lawyer, Todd J. Romano, did not agree.

"The definition of building height does not override the Westerly ordinance," Romano said. "That is just a suggestion as to what a town can have as to its freeboard ... the state definition of freeboard does not define the amount of freeboard that a town shall have. The town ordinance, however, does specifically define the amount of freeboard as being 3 feet and that is what shall govern."

Sacco said he discovered the problem after the completed house was inspected by the town's staff. A surveyor hired to document the house's flood zone compliance for insurance purposes found that the house was taller than allowed under the town's regulations, Sacco said.

"I'm still scratching my head trying to figure out how we missed 1.4 feet," he said.

Sacco said the mistake was caused by a failure to properly account for the amount of freeboard, and could not be detected through a visual inspection.

During construction, Sacco said, he decreased the pitch of the roof, a move he thought would ensure that the house met the height restriction. The peak was listed as 41.45 feet.

When asked how the couple could reduce the height of the house, Sacco said there were two options: "Lifting the house up, cut something off it and put it back down. It's not practical and renders the bottom of the building for garage purposes unusable." The second option, Sacco said, would be to "decapitate the house on top and neither one of those options is pretty."

Zoning Board Chairman Walter Pawelkiewicz asked whether the height violation occurred because the Swiateks wanted a garage. Sacco explained that the central construction beam was placed too high but that a garage could have been accommodated even if it had been placed correctly.

Opening the top of the house to reduce the height would expose the finished house to rain and other weather elements, Sacco said.

Zoning Board member John Ornberg said the board had to focus on the town's regulations. "The magnitude of the correction is great but that magnitude is not up to the board," he said.

Board member Larry Cioppa agreed with Ornberg, saying the board had to address the application for a height variance as if the house had not yet been built.

Jeffrey Russo, a builder who serves as an alternate member of the board, disagreed. "We have to apply the standards but we have to do so with a common sense approach," he said.

Russo referred to the board's routine issuance of dimensional variances for front, rear and side yard size and distance requirements. "Those are more intrusive than to give a height variance," Russo said. Board member Albert Clemence sided with Russo, saying that while the board seeks compliance with the regulations, it routinely exercises judgment.

Swiatek said that he and his wife plan to live in the house year round and that all of their possessions are already there. He said he had discussed the height problem with many of his neighbors and none of them objected. "All of them were certainly supportive of my case and wrote emails and asked that you folks approve the variance so that there would be no need for cutting my house apart," he said.

Zoning Officer Nathan Reichert said the board is required to approve variances only if specific conditions are met. "'We made a mistake, can you please bless our mistake.' That's not justification for a variance. A variance has to come out of our criteria and we need to ask the applicant to prove it based on those criteria," Reichert said.

The  board voted 4-1 to deny the variance, with Pawelkiewicz, Cioppa, Ornberg and Douglas Brockway in favor of denial and  Clemence opposed.

dfaulkner@thewesterlysun.com

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