WEST RIVER COMMERCE CENTER ANNEX, LLC, and CORLISS CENTER, LLC Appellants
MYRTH YORK, Chair, ARTHUR STROTHER, SCOTT WOLF, NURIA CHANTRE, and ENRIQUE MARTINEZ, in their official capacities as Members of The Zoning Board of Appeals of the City of Providence, and VALUE PLACE RHODE ISLAND, LLC, as Owner and COVE ROAD DEVELOPMENT CORP., as Applicant Appellees WEST RIVER COMMERCE CENTER ANNEX, LLC, and CORLISS CENTER, LLC Appellants
MARC GREENFIELD, Chair, ARTHUR STROTHER, SCOTT WOLF, VICTOR CAPPELLAN, and ENRIQUE MARTINEZ, in their official capacities as Members of The Zoning Board of Appeals of the City of Providence, and VALUE PLACE RHODE ISLAND, LLC, as Owner and COVE ROAD DEVELOPMENT CORP., as Applicant Appellees
County Superior Court
Plaintiff: Stephen A. Izzi, Esq.; Thomas J. Enright, Esq.;
Jeffrey H. Gladstone, Esq.; Emily J. Migliaccio, Esq.
Defendant: Lisa Dinerman, Esq.; Michael A. Calise, Esq.;
J. DeSimone, Esq.
River Commerce Center Annex, LLC, and Corliss Center, LLC
(together, the Neighbors) appeal decisions of the Zoning
Board of Review for the City of Providence (the ZBR)
approving the Master and Preliminary Plans of applicants
Value Place Providence RI, LLC (Value Place) and Cove Road
Development Corporation (Cove Road). Jurisdiction is pursuant
to G.L. 1956 § 45-23-71.
Facts and Travel
Road and Value Place (collectively, the Developers) wish to
redevelop the property at 181 Corliss Street in Providence,
Rhode Island, constructing what they characterize as an
extended-stay hotel (the Project). Accordingly, they
submitted an Application for Major Land Development Project
on October 23, 2014. A major land development project has
three stages of approval: Master Plan, Preliminary Plan, and
Final Plan. Sec. 45-23-39. In Providence, each of these plans
must be submitted to the City Plan Commission (CPC).
Providence Zoning Ordinance § 421.1 (2012) (hereinafter,
Zoning Ordinance). On October 31, 2014, the City of
Providence's review officer certified the application
complete, vesting it under the Zoning Ordinance in effect at
the time. Id. at § 1108. The Project is located
in an M-1 Industrial District.
held a public hearing on the Master Plan for the Project on
November 18, 2014, at which the Developers presented an
overview of the Project. Representatives from the Developers
answered questions about matters not germane to this appeal,
including drainage, signage, and vegetation, as well as
preliminary questions about the proximity of the hotel to the
neighboring industrial uses. CPC Hr'g Tr. 10:4-22, Nov.
18, 2014. After the questions from the CPC members,
Providence City Councilman Nicholas J. Narducci registered
his support for the Project, excited about the jobs it would
create. Id. at 15:21-16:21.
this testimony, the Neighbors presented their opposition to
the Project. The Neighbors, via their expert Edward Pimentel,
offered three main arguments against the Project. First, they
argued that it was "inconsistent with the Comprehensive
Plan" due to the site's location in a Jobs District.
Id. at 18:12-13, 20:20-21:7. Second, they further
asserted that the Project should be classified under Use Code
15.2 of the Zoning Ordinance, not Use Code 16.2, which the
Developers contended applies. Id. at 22:9-16. Uses
under Use Code 16.2 are permitted as of right in an M-1
Industrial District, while those under Use Code 15.2 require
a special use permit. Zoning Ordinance § 303, Table 1.0.
Finally, the Neighbors challenged the characterization of the
Project as a hotel, claiming it is more apartment-like in
character. In support of that, the Neighbors submitted
several printouts from the Internet, including an interview
with Value Place founder Jack DeBoer. CPC Hr'g Tr.
22:20-27:1, Nov. 18, 2014.
response to these comments, the CPC members asked staff
planner Robert Azar about the zoning
discrepancies. He contended that the Project qualified
under Use Code 16.2, and that the Project was not located in
a mapped Jobs District under the Zoning Ordinance.
Id. at 27:10-28:9. CPC members also questioned Scott
Bixler, an executive with Value Place, who indicated that the
Project would be built to hotel standards, not apartment
standards, and clarified the staffing requirements of the
Project. Id. at 29:15-30:23. Finally, the CPC heard
the staff report, which recommended approval of the Master
Plan. The CPC voted to approve the Master Plan "subject
to the findings of fact of the staff report" and subject
to various conditions not relevant to this appeal.
Id. at 33:1-2. The CPC issued its decision on
November 20, 2014, finding that the Project complied both
with the Comprehensive Plan and the Zoning Ordinance. The
Neighbors timely appealed the approval to the ZBR.
heard the matter on February 4, 2015. The ZBR first struck
several submissions from the Neighbors, which had not been
presented to the CPC. ZBR Hr'g Tr. 130:24-131-6, Feb. 4,
2015. The Neighbors then argued that the CPC's decision
at the November 2014 meeting lacked the required findings of
fact and conclusions of law. Id. at 131:22-133:10.
They again asserted that the Project should not be
characterized as a hotel. Id. at 140:2-140:14.
Additionally, for the first time, the Neighbors raised the
issue of cooking units in the rooms.
hearing the Neighbors' arguments, as well as a response
from the Developers, the ZBR affirmed the CPC decision and
denied the Neighbors' appeal by a vote of 4-1.
Id. at 156:25-157:16. The ZBR issued its written
decision on March 11, 2015. In this decision, the ZBR found
that "[t]he CPC did not commit procedural error by
basing its decision on the findings of fact in the Staff
report, " which were "specifically incorporated . .
. as the basis of its decision to grant the proposal."
R. Ex. MP-13 at 4. They also found that "there is no
evidence that the CPC did not hear or consider other
testimony, " and that there was "competent evidence
on the record to support the CPC's decision" that
the Project qualified under Use Code 16.2. Id. at
4-5. The Neighbors timely appealed to this Court.
the Master Plan appeal was pending, the Developers continued
with the application process. They submitted their
Preliminary Plan to the CPC, which held an initial public
hearing on February 24, 2015. After initial discussions about
drainage, significant trees, and lighting, the Developers
introduced a Zoning Determination Letter from Jeffrey Lykins,
Director of Inspections and Standards, declaring that the
Project fell under Use Code 16.2 and was permitted by right.
R. Ex. PP-4a.
Pimentel again testified that the character of the Project
was more consistent with permanent residence than temporary.
More specifically, Mr. Pimentel observed that there would be,
in each room of the Project, an area with a refrigerator,
microwave, two-burner electric cooktop, and sink.
See R. Ex. PP-4b, at 11; see also CPC
Hr'g Tr. 19:8-12, May 19, 2015 (testimony from Mr. Bixler
at a subsequent meeting describing the area in question). He
argued that these constituted cooking facilities, and that
the presence of cooking facilities in the Project's rooms
made the units dwelling units, not rooming
units. CPC Hr'g Tr. 43:11-24, Feb. 24, 2015. Therefore,
Mr. Pimentel argued, the Project did not comply with Use Code
16.2; instead, he asserted, the Project was an apartment
hotel, classifiable under Use Code 15.2. Id. at
45:10-23. Mr. Pimentel further opined that regardless of
whether the Project was located in a mapped Jobs District
under the Zoning Ordinance, it was located in a Jobs District
under the Comprehensive Plan. Id. at 46:10-16. It
was Mr. Pimentel's opinion that the Project was
inconsistent with a Jobs District, and thus, the
Comprehensive Plan. Id. at 47:6-10. The CPC took no
action on the Project at the initial meeting.
CPC's next meeting about the Project was on April 28,
2015, which focused on the character and zoning of the
Project. Joseph Lombardo, a qualified zoning expert,
discussed the Project in general terms, although he conceded
that he had not performed a comprehensive zoning review. CPC
Hr'g Tr. 27:16-28:3, 46:3-20, Apr. 28, 2015. He
encouraged the CPC members to view the Project
holistically-"[i]s it a hotel or is it not?"
Id. After some brief discussion, the CPC decided to
continue the matter once again in order to receive more
expert testimony, including from Director Lykins.
Id. at 67:18-68:5.
May 19, 2015 CPC meeting, Mr. Lombardo testified that he had
conducted a zoning analysis, and, in his opinion, the Project
should indeed be classified under Use Code 16.2, not 15.2 or
14. CPC Hr'g Tr. 8:8-11, 12:11-14:10, May 19, 2015. He
also opined that what Mr. Pimentel characterized as a cooking
facility in each room should more appropriately be considered
a "kitchenette or warmup center." Id. at
16:10. He concluded that the Project was "consistent
with and in compliance with both the city zoning ordinance
and its comprehensive community plan as a hotel
facility." Id. at 17:9-12; R. Ex. PP-13c, at 6.
testify was Ramzi J. Loqa,  a zoning expert and former
building official for the City of Providence. CPC Hr'g
Tr. 24:5-18, May 19, 2015. In his opinion, the Project
conformed to the building code and Zoning Ordinance as a
hotel and was most appropriately classified under Use Code
16.2. Id. at 25:5-11, 26:14-16. He further argued
that the area with the burners should not be considered a
"cooking facility" given that it is not a full
kitchen and the building code requires no ventilation system.
Id. at 26:17-27:23, 30:16-21. He characterized the
area in question as a "warmup area" instead.
Id. at 27:24.
Bixler, an executive with Value Place, then testified that
their chain was undergoing a "brand change" to
"go after a higher echelon of customer, " which
included a name change to WoodSpring Suites. Id. at
39:2-19. As such, he was of the opinion that many of the
articles that the Neighbors had presented about the business
model and character of the company would not be
representative of the Project. Id. at 41:17-42:1,
51:3-11. Specifically, he testified that the comments of Mr.
DeBoer, founder of the company, were no longer
representative, as Mr. DeBoer was no longer a majority
shareholder and did not "drive the day-to-day
operational process . . . ." Id. at 41:4-10,
42:2-3. Mr. Bixler further observed that the Project was
being built as an R-1 use under the building code, not an R-2
Id. at 44:5. Construction under section R-1 of the
building code is more burdensome, but is required for
temporary use, unlike the apartment use of R-2. Id.
at 44:5-10, 44:20-45:12. Furthermore, Mr. Bixler stated that
they will be paying the same taxes as any other hotel.
Id. at 55:17-22. Mr. Bixler was subsequently
questioned by the Neighbors, and they clashed over whether
the inclusion of glass burners allowed "cooking"
where a microwave would not. Id. at 59:16-61:1;
see also id. at 62:20-64:4 (CPC member Torrado
questioning Mr. Bixler about the same issue).
Lykins was the third witness. Notably, six days prior to this
meeting, Director Lykins had issued another letter regarding
the zoning of the Project. R. Ex. PP-13b. In this letter,
Director Lykins stated that his letter of February 24, 2015,
"should not be relied upon as an absolute or final
determination, " and that after further review of the
materials presented to the CPC, he believed that the Project
fell under Use Code 14. Id. The reason for this is
that he believed that each room contained cooking facilities,
and that this disqualified them from being rooming units and
thus could not be under Use Code 16.2. Id. The
letter also stated it was "non-binding and is issued
solely to clarify, expand upon, modify, and replace" his
previous letter, and that "the question of the
appropriateness or permissibility of the [P]roject should be
resolved in the approval process for a Major Land Development
with the City Plan Commission." Id.
Lykins took the opportunity to explain and expand upon this
letter. He stated that while he "had trouble finding the
definition of cooking in the actual zoning book, " he
thought that the burners "would be considered
cooking." CPC Hr'g Tr. 68:18-23, May 19, 2015. When
asked on cross-examination whether that statement was
subjective, and not based on the text of the Zoning
Ordinance, Director Lykins answered, "I believe so. I
believe that is my position and my job." Id. at
72:9-16. When asked whether a permanently-installed microwave
oven would constitute a cooking facility, Director Lykins
answered that he believed not. Id. at 90:11-91:4.
Both Mr. Lombardo and Mr. Loqa also responded to Director
Lykins's letter. Mr. Lombardo disagreed with Director
Lykins's interpretation, although he conceded that
Director Lykins would be a logical person to consult with on
the meaning of "cooking facilities." Id.
at 21:19-23:11. Mr. Loqa also disagreed with the
Director's interpretation based on the temporary nature
of the accommodations. Id. at 28:19-29:16.
Pimentel was the last witness to testify, summarizing a
report he also entered into the record. His general
contention was that the Project was a "hybrid" that
was properly classified as an apartment hotel, and thus under
Use Code 15.2. Id. at 108:2-24. Furthermore, he
reaffirmed his argument that the Project was located in a
Jobs District, and thus not permitted, given that no
residential uses were permitted in such a district.
Id. at 114:7-21. Mr. Azar disputed both of these
assertions, arguing that the classification of apartment
hotel was inapposite and that the Jobs District was not
mapped on the zoning map. Id. at 115:19-117:15.
substantial closing arguments and hearing the staff report,
the CPC deliberated. Much of their commentary focused on the
fact that the Project would "obviously . . . act like a
hotel." Id. at 141:21-22; see also id.
at 141:4-9, 141:12-15, 141:23-142:3, 142:11-15, 142:23-24,
143:20-24. After deliberations, the CPC voted to approve the
Preliminary Plan based on the findings of fact in the staff
report and subject to conditions not relevant to this appeal.
Id. at 144:2-145:5. The CPC issued its decision on
May 20, 2015, again finding that the Project complied both
with the Comprehensive Plan and the Zoning Ordinance. The
Neighbors timely appealed the approval to the ZBR.
heard the matter on September 9, 2015. The Neighbors, the
City of Providence, and the Developers all presented lengthy
legal arguments, and ultimately the ZBR affirmed the CPC
decision and denied the Neighbors' appeal. The ZBR issued
its decision on October 1, 2015. Their relevant findings
"9. The CPC did not commit prejudicial procedural error
or clear legal error in applying the terms of the Ordinance
or in concluding that the project was a hotel/motel and
temporary lodging legally permitted in the M-1 Zone by
Section 303, Use Code 16.2-and not a ...