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Jan Co. Central, Inc. v. RPS Associates, LLC

Superior Court of Rhode Island

November 6, 2015

JAN CO. CENTRAL, INC., Plaintiff/Appellant
v.
RPS ASSOCIATES, LLC, ZONING BOARD OF REVIEW OF THE CITY OF PROVIDENCE, and MYRTH YORK, SCOTT WOLF, ARTHUR V. STROTHER, MARK GREENFIELD, and NURIA CHANTRE in their capacities as members of the Zoning Board of Review of the City of Providence, Defendants/Appellees

For Plaintiff: Susan A. Chiariello, Esq. K. Joseph Shekarchi, Esq.

For Defendant: Nicholas J. Hemond, Esq. Sergio A. Spaziano, Esq.

DECISION

PROCACCINI, J.

This matter is before the Court on Plaintiff Jan Co. Central, Inc.'s (Plaintiff or Jan Co.) appeal of a decision from the Zoning Board of Review of the City of Providence (Zoning Board), issued September 12, 2014, which granted RPS Associates, LLC (RPS or Defendant) two special use permits and four dimensional variances. Defendant opposes the zoning appeal. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I

Facts and Travel

RPS owns 48, 50, and 54 Plainfield Street and 4, 6, 10, and 14 Atwood Street.[1] The property is composed of seven lots or approximately 64, 300 square feet of vacant land. RPS seeks to put a retail building of approximately 8400 square feet and a quick-service restaurant of approximately 4500 square feet with a double drive through and signs on the property, which require relief from the Providence Zoning Ordinance (Zoning Ordinance). On May 22, 2014, RPS submitted an application for dimensional variances from sections 305 (dimensional restrictions in M-1 Zone), 425.2 (location of trees and landscaping for parking areas), 604.3 (freestanding signs), and 607.3 (maximum area of signs) of the Zoning Ordinance.[2]Additionally, RPS requested special use permits under sections 303(5.0)(57.1) (eating and drinking establishment more than 2500 square feet) and 303(5.0)(57.2) (drive-in establishment in a C-2 Zone).

The Zoning Board held a properly-noticed public hearing on June 25, 2014. The Zoning Board issued its decision on September 12, 2014, granting RPS's request for all dimensional variances and both special use permits.[3]

At the hearing, RPS presented testimony in support of its application for dimensional variances and special use permits through Attorney Zachary Darrow of DarrowEverett, LLP. John Kucich[4], a civil engineer with Bohler Engineering, testified about the uniquely-shaped lot and how it created a hardship for any builder. Next, Paul Bannon, Senior Project Manager with BETA Group, spoke about how the design and traffic flow promotes pedestrian safety. Finally, Thomas Sweeney, a real estate broker and appraiser from Sweeney Real Estate & Appraisal, discussed how RPS meets the requirements for a special use permit. Jan Co. presented testimony in opposition to RPS's application through its attorney, K. Joseph Shekarchi. David Westcott, certified planner from Mason & Associates, testified that the land is not unique enough to satisfy the hardship requirement and that the design does not fit in with Providence's Comprehensive Plan. Further, Robert Vanasse, a professional engineer with RD Vanasse & Associates, Inc., spoke about how the design would cause traffic congestion and put pedestrians at risk. Additionally, the following-Councilmember Sabina Matos, as the ward representative of where the property is located; Abelardo Hernandez, an abutter; and Greg Stevens, owner of the Olneyville New York System Restaurant in Providence-testified in support of the development.

Edward Abraham and Rona Murray spoke on behalf of McDonald's, explaining the benefit McDonald's would have on the community and elaborated on a letter submitted before the board entitled "Communities Grow with McDonald's." The Zoning Board also had the planning and drawing of the proposed site, reports, and curriculum vitaes from experts Mr. Sweeney, Mr. Westcott, and Mr. Vanasse. Although a representative from Family Dollar was not present, Cliff Cermak, Community Affairs Specialist from Family Dollar, submitted a letter for evidence. Further, there was a letter from Olneyville Housing Corporation opposing the application and an email from Peter Marinucci in support of the application. Lastly, City Plan Commission (CPC) submitted a recommendation, which approved the master plan for the proposed project.

The Zoning Board approved both the special use permits by a five-to-zero (5-0) vote and the dimensional variances by a four-to-one (4-1) vote in its decision, Resolution No. 9818. On September 12, 2014, the Zoning Board issued Resolution No. 9818 with detailed findings of fact and conclusions of law to support their decision. On September 29, 2014, Jan Co. appealed the Zoning Board's decision to this Court.

On appeal, Jan Co. sets forth four main arguments in their appeal to the Rhode Island Superior Court. Jan Co. argues that the Zoning Board should not have granted the special use permit because Jan Co. presented testimony that the development would be detrimental to the health and welfare of the community. Additionally, Jan Co. asserts that RPS, in their request for dimensional relief, did not present sufficient evidence for the Zoning Board to conclude that RPS suffered a hardship. Moreover, Jan Co. avers that the hearing itself was procedurally flawed because RPS's expert, Mr. Bannon, was not properly accepted as an expert and that RPS's expert, Mr. Sweeney, testified beyond his area of expertise. Jan Co. asserts that these procedural problems require the experts' testimony to be excluded from the Zoning Board's consideration. Further, Jan Co. contends that its due process rights were violated because the Zoning Board did not allow its attorney to cross-examine RPS's experts at the hearing.

II

Standard of Review

The Superior Court possesses jurisdiction to review a zoning board decision pursuant to § 45-24-69. The statute 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 ...

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