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West River Commerce Center Annex, LLC v. York

Superior Court of Rhode Island

October 14, 2016

WEST RIVER COMMERCE CENTER ANNEX, LLC, and CORLISS CENTER, LLC Appellants
v.
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
v.
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

         Providence County Superior Court

          For Plaintiff: Stephen A. Izzi, Esq.; Thomas J. Enright, Esq.;

          Jeffrey H. Gladstone, Esq.; Emily J. Migliaccio, Esq.

          For Defendant: Lisa Dinerman, Esq.; Michael A. Calise, Esq.;

          John J. DeSimone, Esq.

          DECISION

          Licht, J. JUSTICE/MAGISTRATE

         West 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[1] (Value Place) and Cove Road Development Corporation (Cove Road). Jurisdiction is pursuant to G.L. 1956 § 45-23-71.

         I Facts and Travel

         Cove 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).[2] 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.

         A Master Plan

         The CPC 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.

         After 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.[3] 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.

         In response to these comments, the CPC members asked staff planner Robert Azar about the zoning discrepancies.[4] 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.

         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.[5]

         After 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.

         B

         Preliminary Plan

         While 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.

         Mr. 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.

         The 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.

         At the 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.

         Next to testify was Ramzi J. Loqa, [6] 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.

         Mr. 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 use.[7] 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).

         Director 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.[8] 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.

         Director 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.[9] 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.

         Mr. 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.

         After 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.

         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 include:

"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 ...

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