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PLF, LLC v. The Zoning Board of Review of City of Providence

Superior Court of Rhode Island

June 16, 2015

PLF, LLC, PAUL FORMAL and DEBRA FORMAL, and 1172 NORTH MAIN ST., LLC
v.
THE ZONING BOARD OF REVIEW OF THE CITY OF PROVIDENCE, MYRTH YORK, SCOTT WOLF, ARTHUR
v.
STROTHER, MICHAEL R. EGAN, and DANIEL N. VARIN, in their capacity as MEMBERS OF THE ZONING BOARD, BOTVIN REALTY COMPANY, and JAMES MARTINS

Providence County Superior Court PC 11-4854

Stephen M. Litwin, Esq. Lisa Dinerman, Esq.; Patrick J. Dougherty, Esq.

For Plaintiff: For Defendant:

DECISION

MCGUIRL, J.

Before the Court is an appeal from a decision of the Zoning Board of Review of the City of Providence (Zoning Board), granting the application of James Martins (Mr. Martins or Applicant) and Botvin Realty Company (Botvin Realty) for a special-use permit. The instant appeal is brought by PLF, LLC; Paul and Debra Formal; and 1172 North Main St., LLC (collectively Appellants), who are abutting landowners within the 200 foot radius of the subject lots. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I Facts and Travel

The subject premises are designated as Lots 172, 173, 174, and 175 on Assessor's Plat 75 in Providence, Rhode Island and are owned by Botvin Realty. The premises are located at 85-99 Nashua Street (the Property) in a Heavy Commercial C-4 Zone and total approximately 17, 000 square feet.

In May of 2011, Mr. Martins and Botvin Realty filed a petition with the Zoning Board seeking a special-use permit under Section 303 – Use Code 52, Wholesale Trade and Outdoor Storage, pursuant to Section 200 of the Providence Zoning Ordinance (Zoning Ordinance).[1] Mr. Martins plans to purchase the Property to use for vehicle storage as part of his towing business.[2](Bd. Tr. at 9:14-22.) He has already entered into an agreement with the City of Providence to tow vehicles. Id. at 10:3-5.

On June 13, 2011, the Department of Planning and Development (DPD) made its recommendation to the Zoning Board that Applicant's application should be denied because it found that (1) it was foreseeable there would be junk car storage; (2) the chain link fence would further suggest it was a junkyard; (3) Strategy B-4 of Objective LU-1 of Providence Tomorrow: The interim Comprehensive Plan (Providence Tomorrow) would be frustrated by the planned development; and (4) the development would be at odds with the revitalization of North Main Street. That same day, the Zoning Board performed a site inspection of the Property and held a properly noticed public hearing regarding the application.

Mr. Martins testified on behalf of his application, along with Peter M. Scotti (Mr. Scotti), a real estate expert, and Eveginia Skodras (Ms. Skodras) and Dale Kelleher (Mr. Kelleher), neighbors of Applicant's Pawtucket tow lot. Mr. Martins also supplied an affidavit from James Botvin (Mr. Botvin), an authorized agent of Botvin Realty, which currently owns the Property.

In opposition to the application, the Appellants[3] offered testimony from Edward Pimentel (Mr. Pimentel), an expert in land use. Furthermore, thirteen individuals with ties to the neighborhood in which the Property is located testified regarding their objections to the application. The Zoning Board also received letters in opposition to the application.

Mr. Martins testified about his plans for the Property. As part of his agreement with the City of Providence, Mr. Martins must have a property that is at least 15, 000 square feet, and it must have a fence with locks and proper lighting. Id. at 10:11-15. Mr. Martins testified that he plans to install a stockade fence around the Property and to put plantings on the outside of the fence. Id. at 14:16-25; 15:1. He also plans to install a kiosk on the Property to house employees and as a place for paperwork to be performed. Id. at 21:3-10. As for security, Mr. Martins testified that there will be lights and a camera system. Id. at 21:20-24.

Mr. Martins further testified about how the tow lot will operate. His business is on a rotation list, resulting in the Providence Police Department requiring his towing services once approximately every twenty-four to thirty-eight hours. Id. at 12:11-17. The vehicles Mr. Martins tows are not abandoned; rather, he tows vehicles that are located on City property and are in violation of a parking regulation. Id. at 13:18-25. The vehicles remain in the tow lot for approximately one to two days, but after the fourteenth day, Mr. Martins begins the process of notifying the owner and removing the vehicle. Id. at 13:6-12. Thus, a vehicle might remain on the lot for thirty days, but after thirty days, Mr. Martins would dispose of it. Id. at 13:12-17. Cars may be towed at any time, day or night, but Mr. Martins testified that the vehicle unloading process is relatively short, taking anywhere from one minute to two-and-a-half minutes. Id. at 16:10-23.

Occasionally his business will tow an accident vehicle; Mr. Martins testified that the vehicles may be drivable, but the police want them to be towed. Id. at 16:24-25, 17:1-5. Furthermore, although not usually required by law, each of Mr. Martins' tow trucks is equipped with spill kits used to contain any fluids. Id. at 17:6-22, 18:3-15. He also testified that he rarely tows accident vehicles because the auto body shops almost always arrive at the scene first. Id. at 18:16-25. At his tow lot in Pawtucket, Mr. Martins has an identical agreement with the Pawtucket Police Department. Id. at 16:1-4. That lot has 75 spaces for vehicles, and of those, only five were towed from an accident. Id. at 19:5-13.

In support of Mr. Martins' application, two neighbors from the Pawtucket location testified about their experience living next to the tow lot. Ms. Skodras and Mr. Kelleher testified that Mr. Martins keeps his Pawtucket lot in excellent condition. The Property is landscaped attractively, and Mr. Martins is vigilant about trash removal. Id. at 23:5-11. Ms. Skodras, despite being a very light sleeper, testified that she does not wake up when a car is towed late at night. Id. at 23:20-24. Mr. Kelleher testified that he was firmly against the Pawtucket tow lot, but that Mr. Martins has "been a great neighbor." Id. at 24:13-17. When Mr. Kelleher had an issue with a light from the lot shining into his home, he testified that Mr. Martins "turned the lights, rewired them and moved them into the property instead of facing out." Id. at 25:4-9. Mr. Kelleher confirmed Applicant's testimony about how long vehicles usually stay at the lot and that there is minimal disruption to the neighborhood. Id. at 25:15-24.

In an affidavit that was read into the record, Mr. Botvin testified that the Property was a vacant lot when acquired by Botvin Realty in 1972. Id. at 27:2-3; Bd. Ex. C. During the course of their ownership, Mr. Botvin's family has used the lots to store excess automobile inventory from its car dealership. (Bd. Tr. at 27:6-9.) Other local businesses were also permitted to store vehicles and tractor trailers on the lots. Id. at 27:9-11. To the best of Mr. Botvin's knowledge, previous owners of the Property used it for similar purposes. Id. at 27:12-15.

Finally, Mr. Scotti testified in support of the application. He testified that the Property consists of four contiguous lots totaling 17, 000 square feet, with 170 feet of frontage on Nashua Street and an average depth of 100 feet. Id. at 28:5-9. Located in a C-4 Heavy Commercial Zone, the Property has been used continuously for vehicle storage since 1972. Id. at 28:9-12. Mr. Scotti observed that Nashua Street and the surrounding area is a classic mixed use area with industrial, commercial, residential, and automotive uses. Id. at 29:5-8. In Mr. Scotti's opinion, Mr. Martins met all requirements for a special-use permit in the area. Id. at 29:10-12. The proposed special-use permit under Use Code 52 is permitted in a C-4 area, and Mr. Scotti testified that allowing the tow lot will not substantially injure the use, enjoyment of, or significantly devalue neighboring property. Id. at 29:12-19. Mr. Scotti also testified that based on the varied uses of surrounding property, as well as Applicant's proposed plan for ensuring minimum disturbance from his business, there would not be a detrimental effect on surrounding properties, and it would not be injurious to the general health or welfare of the surrounding community. Id. at 29:19-25, 30:1-25, 31:1.

In opposition to Mr. Martins' application, the Appellants provided testimony from Mr. Pimentel, an expert in land use. Mr. Pimentel expressed his concerns regarding customer and employee parking at the Property, as well as where employees would reside. Id. at 35:18-25, 36:1-12, 37:8-10. He also testified that in his opinion, allowing Mr. Martins to operate a tow lot on the property would be "esthetically . . . displeasing, " and that there is also a safety issue with such a business. Id. at 41:25, 42:1-3. Mr. Pimentel believed the tow lot would be a "hindrance" to the neighborhood's development. Id. at 41:20-21.

At the hearing, thirteen people from the North Main Street area testified in opposition to Mr. Martins' application. These men and women expressed their concerns regarding the effect a tow lot would have on the North Main Street neighborhood, and, in particular, the efforts to improve and revitalize the area. Id. at 69:22-25, 70:1-11. Some of these individuals also argued that the tow yard was contrary to the Comprehensive Plan and ...


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