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Broadway Express LLC v. City of Providence Zoning Board of Review

Superior Court of Rhode Island

September 3, 2014

BROADWAY EXPRESS, LLC
v.
CITY OF PROVIDENCE ZONING BOARD OF REVIEW; MYRTH YORK, ARTHUR STROTHER, SCOTT WOLF, DANIEL VARIN and MARC GREENFIELD, in their capacities as Members of the City of Providence Zoning Board of Review; JOHN P. DePASQUALE and JOAN ANN DePASQUALE, and DMR ENTERPRISES, INC., d/b/a Nikki's Liquors

Providence County Superior Court

For Plaintiff: Clare T. Jabour, Esq.

For Defendant: Lisa Dinerman, Esq.. Kurt T. Kalberer, II, Esq., Alfred Ferruolo, Esq., John and Joan DePasquale, pro se

DECISION

MCGUIRL, J. JUSTICE/MAGISTRATE

Before this Court is an appeal from a decision of the City of Providence Zoning Board of Review (the Board). Broadway Express, LLC (Appellant), a neighboring business owner of the subject properties, appealed from the decision of the Board granting the DePasquales' (Appellees or Owners) application for a use variance and a special use permit, which would allow a vacant pharmacy building and adjacent parking lot to be used as a liquor store and parking lot. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth in this Decision, this Court remands the decision to the Board so that it may obtain the opinion of the Director of the Department of Inspection and Standards of the City of Providence regarding the proposed parking lot.

I

Facts and Travel

Appellees are John and Joan DePasquale, owners of the two subject lots of the application. Co-appellees are the Board, and DMR Enterprises, Inc., the corporation which seeks to lease the subject lots. The properties are listed as Lots 615 and 505 on the Tax Assessor's Plat 28, also known as 319-323 Broadway and 127 Vinton Street in Providence, respectively. Lot 615, located on Broadway, houses a brick building that had been used as a pharmacy for over thirty years. The property was used for a commercial purpose even though the Use Table in the Providence Zoning Ordinance (Ordinance or Zoning Ordinance) indicates that it is located in a Residential Professional R-P Zone (RP zone) and also within the Broadway Historic District. Lot 505, located on Vinton Street, was used as parking for the pharmacy and currently serves as a parking lot; it is located in a Residential R-3 Zone (R-3 zone).

The Appellees filed an application with the Board seeking relief necessary to lease the properties to DMR Enterprises, Inc. for use as a liquor store. The application sought three different types of relief from the Board to ensure the liquor store would be in compliance with the zoning regulations. First, the application requested a use variance in order to operate a retail business on the property instead of using it for Residential/Professional purposes. The District Use table in Section 303-Use Code 57 of the Ordinance states that a retail property is prohibited in an RP zone, and thus the Owners applied for a use variance for Lot 615. Second, the application requested a dimensional variance for signage on the front of the building to put up a sign for the liquor store. Additional relief was sought from Section 607.2 of the Ordinance for a dimensional variance for signage to expand from eight to sixty feet. Third, the owners sought a special use permit for Lot 505, which they intend to use as an off-site parking lot on Vinton Street to support the commercial liquor store. This request was pursuant to Section 303-Use Code 64.1 of the Ordinance which allows a special use permit to allow a property to be used primarily as a parking lot. The parking lot is necessary to satisfy the parking requirements of Section 703.2 of the Ordinance. Specifically, Section 703.2 of the Ordinance requires off-street parking spaces for commercial use properties. Thus, because Lot 615 does not contain off-street spaces, the Appellees sought a special use permit to use Lot 505 to meet the necessary required parking as provided in Sections 707 and 707.1 of the Ordinance.

On September 19, 2012, the Board held a properly advertised public hearing on the Owners' petition for three types of relief. At the hearing, DMR Enterprises, Inc. was represented by counsel who began his presentation of the case with an explanation of the relief requested. (Tr. at 152-153.) In support of the application, Mr. DePasquale offered testimony. He testified that he has owned the subject properties since 1976 and has used them to run a pharmacy and parking lot. (Tr. at 155.) Further, he explained that, since the pharmacy closed, he has tried to lease or sell the property for the past six years but has had no offers. Id.

Next, Mr. Ianozzi, a Principal of DMR Enterprises, Inc., doing business as Nikki's Liquors, described the nature of his business, explained why he wants to move it to the property on Broadway, and detailed the changes that would be made to the property. (Tr. at 157-165.) He testified that the exterior of the building would stay the same and minor improvements would be made on the interior, including bringing the building into compliance with the fire code. (Tr. at 159-160.) Additionally, he specified that Appellees are asking for thirty square feet of signage; currently the signage is about sixty square feet, but the ordinance allows for only eight square feet. (Tr. at 161-162.) Mr. Ianozzi explained that he has submitted the proposed sign to the HDC to ensure that it approves of the design and size of the sign and that he has been working with the Historic District Commission (HDC) to design a sign which it would approve.[1] (Tr. at 160, 165.) While on the subject of the proposed signs, the Board Chairwoman read a letter into the record from the executive director of the Broadway Heritage Commission, another local organization, which opposed the sign but were in favor of the prior design proposal made by Mr. Ianozzi. (Tr. at 164-165.) Lastly, Mr. Ianozzi testified that the proposal which the Broadway Heritage Commission had looked at was created prior to the meeting with the HDC and that the current proposal was actually the first design that the HDC approved. (Tr. at 165.)

Thereafter, the Appellees presented Thomas Sweeney of Sweeney Real Estate as an expert witness. Mr. Sweeney testified that the building has been used for retail use for at least the past thirty-seven years, and the parking lot has supported that use. (Tr. at 166.) Mr. Sweeney stated that it was his opinion that the use would not change the general character of the area. (Tr. at 167.) Additionally, Mr. Sweeney opined that the use would have no negative impact on the surrounding property values or their use and enjoyment. (Tr. at 168.) Lastly, he concluded by stating that the use requested would be the least relief necessary and that a denial would result in the Appellees being denied all beneficial use of the property. Id.

Kari Lang, Executive Director of the West Broadway Neighborhood Association (WBNA), testified on behalf of the organization, stating that the association supports the application, despite its initial concerns with adding another liquor store in the area. (Tr. at 169-171.) She also testified that the WBNA believes that Nikki's Liquors will offer a product for a different customer base than the other liquor stores in the area. (Tr. at 169.) Additionally, Ms. Lang commended Mr. Ianozzi for engaging in dialogue with the neighbors to address concerns prior to applying for the variance. (Tr. at 170.)

Additional area business owners and employees offered testimony in support of the application. John Richard, owner of Avery, testified in favor of the application. (Tr. at 175.) Sam Walker, manager of Julian's Restaurant, testified in favor of the application. (Tr. at 171.) Brian Oakley, an area business owner, testified in favor of the application because he believes another business will benefit the other businesses in the area. (Tr. at 173-174.)

In rebuttal, several neighbors and business owners testified at the hearing against the application. Joe Fergus, an organizer and activist in the Federal Hill area, testified against the application. (Tr. at 176-177.) Mr. Fergus stated that the liquor store would hurt the business of the other liquor stores in the area. Additionally, he submitted to the Board 1200 signatures of people who oppose the opening of Nikki's Liquors on Broadway. Id. at 177.

Next, Mr. Saliba and Robin Saliba, owners of another liquor store, testified that every liquor store sells craft beers now. (Tr. at 185-187.) Ms. Saliba also testified that she made an offer to buy the building five years ago, but the Appellees decided they didn't want to sell it to her to be used as a liquor store. Id. at 187.

Mr. Santurri, owner of several properties in the area, testified in opposition of the application. (Tr. at 178.) He testified that the store would create traffic problems in the area. (Tr. at 180-181.) Further, he stated that the building could be subdivided and leased for office use and that a lot of the other buildings on the street have had trouble renting out the space. (Tr. at 184-185.) Mehmet Akba and Savannah Brown, the owners of the liquor store less than a mile from the property, testified against the application. (Tr. at 191-193.) Mr. Akba stated that the traffic in the area is already bad and that more traffic would cause gridlock during rush hour. (Tr. at 193.)

Bijaal Patel, owner of the Appellant company which owns a store across the street from the subject property, testified that putting a liquor store across the street from the property would make the parking problems in the area worse than the current levels. (Tr. at 199.) The Appellant's testimony was followed by that of Mr. Force, a resident on Vinton Street, who explained that the traffic on Broadway and Vinton is terrible and another business would make it worse. (Tr. at 201.) The substance of most of the testimony against the application related to the impact the liquor store would have on the business of other area liquor stores and concerns with traffic.

Lastly, the Board Chairwoman read into the record the recommendation of the Department of Planning and Development (DPD) relating to the relief requested under the application. (Tr. at 205-207.) The recommendation stated that the use would be in conformance with the objectives of the Comprehensive Plan, provided that the building retains its character. (Tr. at 206.) Further, because Lot 505 is currently empty and serves as a parking lot, the DPD does not object to the parking lot. Id. The DPD also recommended that the signage be allowed as long as it is subsequently approved by the HDC. (Tr. at 207.)

At the conclusion of the hearing, the Board heard other scheduled matters and then resumed deliberation on the Appellees' application at the end of the meeting. The Board discussed the requests for relief and approved each one of them. The use variance was approved 4-1, and the special use permit and dimensional variance were each granted with a vote of 5-0. (Tr. at 279-280). The Board issued its decision on December 21, 2012, and it was recorded on

December 26, 2012. Aggrieved by the Board's decision to grant the requested relief, Appellant filed a timely appeal.

II

Standard of Review

The Superior Court's review of a zoning board decision is governed by § 45-24-69(d). Section 45-24-69(d) 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 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 ...

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