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Kurn v. York

Superior Court of Rhode Island

May 18, 2015

MYRTH YORK, ARTHUR STROTHER, DANIEL VARIN, SCOTT WOLF, MARC GREENFIELD and ENRIQUE MARTINEZ, in their capacities as members of the City of Providence's Zoning Board of Review; MICHAEL PEARIS, in his capacity as the City of Providence's Finance Director; DAVID T. SHWAERY; and GERALD P. HAMMEL

Providence County Superior Court PC 13-5432

For Plaintiff: John O. Mancini, Esq., Joelle C. Rocha, Esq.

For Defendant: Katherine A. Merolla, Esq., Lisa Dinerman, Esq.



Before the Court is an appeal from a decision of the City of Providence Zoning Board of Review (the Board) granting a use variance to Applicants David T. Shwaery (Mr. Shwaery) and Gerald P. Hammel (Mr. Hammel) (collectively, Applicants) to convert the basement area of their R-3-zoned property from a professional office to a hair salon. The Appellants-Seth Kurn (Mr. Kurn), Barbara Harris, Daniel C. Yee, and Stefano Bortoli-are asking the Court to reverse that decision. Jurisdiction is pursuant to G.L. 1956 §§ 45-24-69 and 45-24-69.1.


Facts and Travel

The Applicants are record owners of the subject property located in an R-3 residential zoning district[1] at 170-172 Cushing Street and 459 Brook Street, Providence, RI and otherwise known as Lots 17, 18, and 19 on Assessor's Plat 13. The sole structure on the property is a three-story house containing five professional offices and two apartments.[2] On May 6, 2013, the Applicants applied for a use variance to convert one of the professional offices into a hair salon. Said professional office is located in the basement of the property. A duly noticed hearing on the matter took place on July 9, 2013.

At the hearing, Mr. Shwaery and various expert witnesses testified on behalf of the Application, including licensed professional engineer Ramzi J. Loqs (Mr. Loqs); real estate appraiser Peter M. Scotti, MAI (Mr. Scotti); and certified planner Edward Pimentel, AICP (Mr. Pimentel). Also testifying in favor of the Application were Edward Bishop (Mr. Bishop), who is a board member of the College Hill Neighborhood Association and Chairman of the Thayer Street District Management Association; an employee of the Squires Hair Salon, Anna Mezhberg; and neighbors Hillary Guerin, Linda Miller and Alice Miles. Furthermore, in addition to their testimony, experts Mr. Scotti and Mr. Pimentel submitted written reports for the Board's consideration. Testifying against the Application were the following objectors: City of Providence Councilman Samuel D. Zurier (Councilman Zurier), Seth Kurn (Mr. Kurn) and Chris Tompkins (Mr. Tompkins).

Mr. Shwaery testified that he and Mr. Hammel were seeking the use variance so that they could move their hair salon business, Squires Hair Salon, from its current location to the basement office unit of the subject property.[3] Mr. Shwaery testified that the unit "basically opens out, it's a walk-out basement right out to the parking lot." Id. at 166. According to Mr. Shwaery, the office unit had been vacant since its previous tenant, Brown University Oncology and HIV, had relocated to the jewelry district in 2010. Id. at 165. He further testified that the unit had been marketed as professional office space to no avail: "I have very diligently tried to rent it. I used two different real estate agents to do that. Neither of them were successful. And I tried on my own, too, to rent it." Id. at 165-66.

Mr. Loqs testified that the basement area needed only general renovations to make the basement compliant with the building code and meet handicap requirements. Id. at 173. Thereafter, real estate appraiser Mr. Scotti testified that:

"[t]he subject property is one of the largest contiguous pieces in the neighborhood; it's 24, 597 square feet, the building 1890's colonial revival, about 5500 square feet – 5800 square feet above grade, a 2300 square-foot basement." Id. at 177.

According to Mr. Scotti, with some landscaping, the proposed appointment-only salon would be "virtually invisible" from the street and that he "[doesn't] think this will have even a vague effect on surrounding uses or the neighborhood." Id. at 178. Mr. Scotti also opined that "the office market on the East Side is very soft. It really is." Id. at 180

Planning expert Mr. Pimentel observed that, "All the improvements will be to the interior[, ] [and that] . . . from the exterior, no one would be the wiser that this is even happening." Id. at 185. He then testified that the Application is simply "asking permission to take the lower level which just doesn't seem viable for office use, and use it for a use that is classified as a personal convenience service, serving neighborhood needs." Id. at 186. Mr. Pimental was asked if "the action of [the Applicants] selling the other property is the cause of them moving to here . . . ?" Id. at 187. He replied: "That has nothing to do with the case of the hardship[, ]" and that "any hair salon would be appropriate given that it's a professional office use, it is already commercial in nature . . . ." Id. at 187 and 188.

In his written report, Mr. Pimentel addressed the issue of "all beneficial usage of the floor space in question" by stating that:

"[i]n order to satisfy this criteria, the property owner has gone to great lengths to utilize the referenced floor space. He has both marketed it for residential and/or professional office (because of its appropriate recognition by a previous Board). However, there has not been any expressed interest, as evidenced by the fact that the subject floor space has remained underutilized for a period of time. This planning consultant believes that the applicant/property owner has done his diligence and attempted to utilize the property in a manner that is consistent with the Ordinance, to no avail. The petitioner has exhausted all permissible avenues. The property owner is entitled to utilize the stated floor space in some beneficial manner, and if impossible to do so by introducing a permitted or by special use permitted land use, he is legally entitled to pursue a prohibited land use." (Report of Edward Pimentel at 7.)

Mr. Pimentel concluded in his written report that "to deny the requested relief will cause the applicant to suffer hardship such that the subject commercial floor space will continue to remain vacant and non-tax generating." Id. at 9. He further concluded that "to deny the applicant's proposal will not only result in extinguishing all beneficial use of the lower (basement) commercial level, but also be contrary to the goals and objectives of the Comprehensive Plan." Id.

Various lay witnesses also testified at the hearing in objection to the Application. (Tr. at 191-213.) Councilman Zurier testified that in early 2012, Mr. Shwaery sought changes to the Comprehensive Plan so that he could sell nine multi-family properties-including the Squires Hair Salon property-for demolition and development into one hundred student apartments. Id. at 191 and 194. According to Councilman Zurier, at the time of the requested change, Mr. Shwaery represented that the salon was "a failing business, " that it had "lost half [its] customers, " and that it "[couldn't] get financing . . . ." Id. at 193.

Councilman Zurier then testified: "I think if it is a failing business, I don't understand why that would be what you'd want to move into another building." Id. at 194. Councilman Zurier also questioned whether the Applicants' inability to rent out the basement constituted a hardship where "[i]t is clear the rest of the building is being put to very good use." Id. at 196. He then stated: "I would question whether all beneficial use is lost, even of a basement, either for storage or for student apartments, never mind the fact that there [sic] certainly beneficial use of the building." Id. at 197. In addition, Councilman Zurier observed that the Planning Board previously had recommended that the Board not grant any variances in the area until completion of a Brown University-funded study of the Thayer Street neighborhood. Id. at 195.

Thereafter, Mr. Kurn testified the proposed variance would adversely affect the quality of the neighborhood for the single-family homes in the area. Id. at 199-200. In addition, Mr. Kurn likewise requested that the Board not approve any changes to the area until the Thayer Street study had been completed. Id. at 200. Another lay witness, Mr. Tompkins, "strongly object[ed] to the characterization of this neighborhood as in transition[, ]" stating that residents of the nearby single-family homes "aren't going anywhere[, ]" and that the "area is surrounded by local historic districts and this property is in the national historic district." Id. at 202.

In addition to the lay witness objectors, several lay witnesses gave general testimony in favor of the Application, including patrons and an employee of the hair salon. The Planning Department's ...

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