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IRW Real Estate v. City of Providence Zoning Board of Review

Superior Court of Rhode Island

December 8, 2014

IRW REAL ESTATE; WEISS REALTY, LLC., ELAINE S. WEISS TRUST, and SABAR REALTY, INC.
v.
CITY OF PROVIDENCE ZONING BOARD OF REVIEW, by and through its members MYRTH YORK, ARTHUR STROTHER, SCOTT WOLF, ENRIQUE MARTINEZ, DAN VARIN and PROVIDENCE FIREFIGHTER'S REALTY CORP.

For Plaintiff: Gina A. DiCenso, Esq.

For Defendant: Lisa Dinerman, Esq. Edward C. Roy, Esq. Jeffrey S. Brenner, Esq.

DECISION

CLIFTON, J.

Appellants IRW Real Estate, Weiss Realty, LLC., Elaine S. Weiss Trust, and Sabar Realty, Inc. (Appellants) appeal the January 6, 2014 decision of Appellee, City of Providence Zoning Board of Review (the Board), granting a use variance and various dimensional variances to Applicant Providence Firefighter's Realty Corporation (Applicant or Firefighter's Realty) for their property on Lots 239 and 586[1] of Tax Assessor's Plat 2 in Providence, Rhode Island (the Property). Such variances provide relief for Applicant to construct a billboard on its Property abutting Interstate 95. Lamar Central Outdoor, LLC (Intervenor or Lamar) has intervened in support of the Board's decision as an interested party planning to rent this billboard. Jurisdiction of this Court is pursuant to G.L. 1956 § 45-24-69.

I

Facts and Travel

On March 28, 2011, the Board denied Lamar's[2] application for variance on the Property. (Resolution No. 9554.) Lamar had requested both a use variance and dimensional variances to construct a V-shaped billboard opening at a 50 degree angle and measuring 137 feet high with two sign panels, each spanning 48 feet by 14 feet. Id. Specifically, Lamar requested relief from Providence Ordinance ch. 27 § 603, which states that billboards "shall be prohibited in all zones in the city." The Board found, inter alia, that the Applicant had not shown that the hardships sought resulted from the unique nature of the Property and that denial of the requested relief would not lead to the loss of all beneficial use of the Property. Id. at 3.

On March 12, 2013, Firefighter's Realty, owner of the Property, submitted the instant application to the Board, similarly proposing construction of a billboard that Lamar would rent. (Appl. for Variance, Mar. 12, 2013.) Mr. Paul Doughty, counsel for Firefighter's Realty, testified as to the modifications between this application and the one denied by the Board in 2010:

"We have narrowed [the V-shape] from 50 degrees to 30 degrees, and the effect of that is for people that may be viewing it from the east or from the North Main Street side is to narrow the width of the billboard, the wide part of the V, the mouth of the V, from 30 feet to 27.5 feet which is a reduction of approximately 25 percent, in that width.
"Secondly we moved the pole, and therefore the entire billboard, three feet south thereby increasing, along with the narrowing of the V, the distance from the abutting landowner . . . [by ten feet] or approximately 33 percent.
"In addition, we've made an offer on behalf of [Lamar] to remove the equivalent square footage of billboard from the city from a list of identified billboards locations that was submitted to the Department of Planning. That's 1344 square feet and it represents approximately nine or ten billboards depending on which billboards are selected. And they are in different neighborhoods, and different streets, including, for instance, Potters Ave., Public Street, Broad Street[, ] Elmwood, Charles Street, et cetera." (Tr. 127:6-128:9, July 9, 2013.)

Consequently, the Board found, upon motion and a vote of 4-1, that there existed a "substantial change" from the previous application. Id. at 131:1.

Later in the proceedings, the Board heard from Applicant's expert, Mr. Thomas O. Sweeney (Mr. Sweeney), who testified that "about 50 percent of [the Property] is unusable due to the [Narragansett Bay Company] pipeline [easement], and the Moshassuck River[.]" (Tr. 166:4-6, Oct. 22, 2013.) Mr. Paul Doughty readily admitted that Applicant did not ask Narragansett Bay Company whether it could use the land upon which the easement lies for parking. Id. at 168:8-12. Nevertheless, part of the Property is already being utilized as a parking lot. Id. at 149:2-4. In response to this evidence, the Chairperson of the Board stated that the Board was "not persuaded that a denial of the requested use and dimensional variances would lead to a loss of all beneficial use of the property. The Board considers the use of the property as a union hall[3] and parking lot to be a beneficial use to the property." Id. at 170:22-171:2. Mr. Sweeney did not dispute this impression but rather stated that zoning strictures had "an impact on the full beneficial use of the [P]roperty." Id. at 171:3-5. Despite the Chairperson's position regarding the parking lot as a beneficial use of the Property, in its final decision, Resolution No. 9778, the Board granted the requested variances, finding that the Property "cannot yield any beneficial use if it is required to conform to the use provisions of this Ordinance [as] [t]he specific area on the Property where Applicant seeks to place the monopole is of very limited use." (Resolution No. 9778 at 7.)

Appellants filed a Complaint with this Court on January 17, 2014 appealing the Board's grant of relief. Appellants contend that the Board acted in excess of its statutory authority by rehearing a substantially similar application to the one decided on March 28, 2011. Additionally, Appellants assert that the decision of the Board was affected by error of law as the Board granted relief where Applicant was deprived of the beneficial use of some of its property rather than all. Furthermore, Appellants allege that the Board failed to make adequate findings of fact as per § 45-24-61(a)[4]. Lamar contends that the Board's decision was proper, resting on record evidence that Applicant would lose beneficial use of the Property without the ...


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