Providence County Superior Court
For Plaintiff: David P. Whitman, Esq.; Mary Welsh McBurney, Esq.
For Defendant: Amy L. Crane, Esq.; John O. Mancini, Esq.; Nicholas J. Goodier, Esq.
Before the Court is the appeal of Charles Orms Associates (Appellant) from a decision by the Zoning Board of Review of the City of Providence (Zoning Board), granting use and dimensional variances to Capital Advertising, LLC (Capital or Applicant),  and Pettis Properties, LLC (Pettis) (collectively, Appellees). Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
I Facts and Travel
Pettis is the owner of an 11, 598 square foot vacant lot located at 58 Printery Street in Providence, and otherwise known as Lot 447, Assessor's Plat 2 (Property). See Application for Variance or Special Use Permit at 1. The Property is located in a C-4 Heavy Commercial District (C-4 District). It also is located in the JD Jobs Overlay Zoning District (Jobs District). See Report of Edward Pimentel, AICP (Pimentel Report) at 1.
On May 12, 2011, Capital filed an Application for Variance or Special Use Permit (Application) with the Zoning Board seeking use and dimensional variances. Id. Capital sought a use variance to allow for the erection of a two face, freestanding billboard sign. Id. at 1-2. Capital also sought dimensional relief from the Zoning Ordinance (Ordinance) of the City of Providence (City) in order to allow the billboard to exceed the height requirement and to further allow for messages to be displayed on the billboard via LED display.
The Zoning Board conducted a duly noticed hearing on July 27, 2011. At the hearing, the Zoning Board heard testimony in favor of the Application from Thomas Badway, on behalf of Pettis; real estate and appraisal expert Thomas O. Sweeney; and Mary Burns, on behalf of Capital. The Zoning Board also received documentary evidence in favor of the Application, including reports from expert certified planner Edward Pimentel, AICP, an urban planning and land use consultant; from expert Paul Bannon, President of RAB Professional Engineers (RAB Report); and a report from a billboard company called Daktronics (Daktronics Report).
Testifying in opposition to the Application was Choyon Manjrekar, on behalf of the City's Department of Planning and Development (Planning Department or DPD) and lay witness Grant Dulgarian. The Planning Department also submitted a report recommending that the Zoning Board deny the requested relief. The Appellant did not participate at the hearing.
At the conclusion of the hearing, the Zoning Board considered all of the testimony and documentary evidence before voting to approve the Application by a four to one vote. On September 20, 2011, the Zoning Board issued Resolution No. 9635, in which it memorialized its approval of the Application. See Resolution No. 9635, Sept. 20, 2011 (Decision). In its decision, the Zoning Board made the following findings of fact and conclusions of law:
"2. The Applicant has clearly shown that the hardships from which the variances are sought are due to the unique characteristics of the Property because, as credibly discussed by Mr. Pimental [sic] in his written report and testified to by Mr. Sweeney, the Property is located in an isolated location in a heavy commercial area next to Interstate Route 95, in a flood plain, with the Moshassuck River running through approximately the middle of the Property, thus severely restricting the development and use of the Property. In addition, the Board, on its inspection of the Property, noted this uniqueness of the Property;
3. With respect to the requested dimensional variances relating to height, freestanding signs and maximum sign area, these variances are also sought due to the unique characteristics of the subject land. Specifically, the relief is necessary because of the topography of the Property and, as noted by Mr. Sweeney, the site is 30-40 feet below the grade of Interstate 95 and the proposed height and size of the sign are necessary in order for the sign to be seen; . . . .
6. The Board finds that the granting of the requested variances will not alter the general character of the surrounding area nor impair the intent and purpose of the Ordinance or the Comprehensive Plan as the Property is located in a heavy commercial area containing auto body shops;
7. The Board further finds, based upon the above findings, that the relief requested is the least relief necessary to allow a viable use of the Property as the billboard will not exceed beyond the height necessary to be visible from the highway;
8. The Board also finds that denial of the requested use and dimensional variances would lead to a loss of all beneficial use of the Property and would be more than a mere inconvenience since the Property has a river running through it and due to its severe topography it would be very difficult to find any other viable use." (Decision at 3.)
The Zoning Board then approved:
"granting relief from Section 303-use code 68, 305, 603.2, 603.3 and 607.4 of the Zoning Ordinance permitting the construction of a new "V" shaped billboard 112 feet in height, consisting of two sign panels each panel face measuring 48' x 14' attached to a monopole, one sign panel would face in a generally northerly direction and one sign panel facing in a generally southerly direction as per the specifications and plans presented by the Applicant." Id.
The Appellant timely appealed the Zoning Board's decision. Additional facts will be provided in the Analysis portion of this Decision.
Standard of Review
Section 45-24-69(a) provides this Court with the specific authority to review the decision of a zoning board. This Court's review is governed by § 45-24-69(d), which provides:
"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:
"(1) In violation of constitutional, statutory, or ordinance provisions;
"(2) In excess of the authority granted to the zoning board of review by statute or ordinance;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Sec.
Judicial review of an administrative action is "essentially an appellate proceeding." Notre Dame Cemetery v. R.I. State Labor Relations Bd., 118 R.I. 336, 339, 373 A.2d 1194, 1196 (1977); see also Mauricio v. Zoning Bd. of Review of Pawtucket, 590 A.2d 879, 880 (R.I. 1991). The deference given to a zoning decision is due, in part, to the fact '"that a zoning board of review is presumed to have knowledge concerning those matters which are related to an effective administration of the zoning ordinance."' Cohen v. Duncan, 970 A.2d 550, 561 (R.I. 2009) (quoting Monforte v. Zoning Bd. of Review of E. Providence, 93 R.I. 447, 449, 176 A.2d 726, 728 (1962)). Accordingly, a justice of the Superior Court may not substitute his or her judgment for that of the zoning board if he or she conscientiously finds that the board's decision was supported by substantial evidence. Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 825 (1978).
Our Supreme Court has declared that "[s]ubstantial evidence as used in this context means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion and means an amount more than a scintilla but less than a preponderance." Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981) (citing Apostolou, 120 R.I. at 507, 388 A.2d at 825). The reviewing court "examines the record below to determine whether competent evidence exists to support the tribunal's findings." New England Naturist Ass'n, Inc. v. George, 648 A.2d 370, 371 (R.I. 1994) (citing Town of Narragansett v. International Ass'n of Fire Fighters, AFL-CIO, Local 1589, 119 R.I. 506, 380 A.2d 521 (1977)). Thus, this Court's review of a zoning board's factual findings is undertaken to ensure that a reasonable mind might accept them as adequate to support a conclusion. See Lischio v. Zoning Bd. of Review of N. Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003); Caswell, 424 A.2d at 647.
The Appellant asserts that the Zoning Board's decision was clearly erroneous, affected by errors of law and arbitrary and capricious. Specifically, Appellant maintains that with respect to the granting of the use variance, the Zoning Board (a) failed to find a loss of all beneficial use; (b) ignored clear and convincing evidence that the proposed project would alter the general character of the surrounding area and would impair the purpose of the Ordinance as well as the City's Comprehensive Plan; and (c) failed to find that construction of the billboard was the least relief necessary. With regard to the dimensional relief, Appellant contends that the Zoning Board (a) failed to consider art. VI, § 609.3 of the Ordinance, which explicitly limits the maximum deviation allowed from the Ordinance's sign-height restrictions; (b) failed to address the Ordinance's limits on the area of a sign; and (c) failed to make sufficient findings of fact to support its conclusion that the requested relief would be more than a mere inconvenience.
In response, Appellees contend that Appellant is not an aggrieved party for purposes of § 45-24-31(4) and that as a result, the Court lacks jurisdiction over the matter. They further maintain that the Zoning Board had the authority to grant the requested relief and that its decision is supported by the competent evidence in the record.