KRIKOR S. DULGARIAN TRUST; and SETH KURN
ARTHUR STROTHER, SCOTT WOLF, MARC GREENFIELD, VICTOR CAPELLAN, AMY CRANE, and ENRIQUE MARTINEZ; in their capacities as members of the City of Providence's Zoning Board of Review, JIM LOMBARDI, in his capacity as the Treasurer for the City of Providence; and FARVIEW, INC. and BROWN UNIVERSITY
County Superior Court
Plaintiff: Joelle C. Rocha, Esq.
Defendant: Andrew M. Teitz, Esq. Lisa Dinerman, Esq.
CARNES, J. JUSTICE.
the Court is an appeal from a City of Providence's Zoning
Board of Review (Board) decision. The Krikor S. Dulgarian
Trust and Seth Kurn (Appellants) appeal the decision of the
Board granting a two-year special use permit to Farview, Inc.
and Brown University for a parking lot on property near
Thayer Street. Jurisdiction is pursuant to G.L. 1956 §
Inc. (Farview) is a wholly-owned subsidiary of Brown
University (Brown) and the record owner of property recorded
as Assessor's Plat 12, Lots 25, 28, 33, 36, 37, 39, and
41, located at 450 Brook Street and 167 and 169 Cushing
Street, Providence, Rhode Island. All properties are zoned in
an I-3E Overlay District, which combines educational and
commercial use buildings. The Krikor S. Dulgarian Trust is
the recorded owner of the property identified in city records
as Assessor's Plat 10, Lots 276 and 300, located at both
254 and 260 Thayer Street, Providence, Rhode Island. Seth
Kurn (Kurn) is the recorded owner of property identified as
Assessor's Plat 13, Lot 103, located at 248 Bowen Street,
Providence, Rhode Island.
Brown purchased the above-mentioned properties, the previous
owner had rented the seven houses on the property to
students. Tr. 188:8-12, Apr. 13 2016. Attorney Andrew Teitz
(Attorney Teitz) stated that the previous owner did not
"put any money into maintaining them at all."
Id. The buildings, according to Brown and Farview,
were in disrepair, and the owner had only been issued one
electrical permit for repair during his ownership.
Id. at 188:12-15.
the opportunity presented itself, Brown purchased all seven
properties. Id. at 188:19-20. At the time of
purchase, Brown represented that it did not have an immediate
plan for what type of permanent structure it intended to
build on the land. Id. at 189:23-190:5. Attorney
Teitz stated that Brown would use the land to build
"some sort of educational building, it could be housing,
it could be classrooms, it could be some combination."
Id. Before deciding on what to build on the
property, Attorney Teitz stated that Brown wished to use the
property as a pay parking lot for two years. See id.
Brown does not exclusively control the property. Id.
at 193:16-21. Instead, Farview, the for-profit, wholly-owned
subsidiary of Brown, holds the property. Id.
January 19, 2016, Brown and Farview went before the
Providence City Plan Commission (CPC) to gain approval of an
amendment to its Institutional Master Plan (IMP).
Id. at 188:20-25; see also Letter from
Choyon Manjrekar, Administrative Officer, Providence
Department of Planning and Development, to Lori Hagen,
Providence City Clerk (May 11, 2016) (hereinafter, CPC
Letter) at 1.
City of Providence Zoning Ordinance (Ordinance) requires all
colleges and universities in Providence to have an IMP. The
"[a]n institutional master plan is required to promote
the orderly growth and development of health care
institutions and university or college educational facilities
while preserving neighborhood character, historic resources,
and consistency with the city's comprehensive plan and
adopted land use policies. The institutional master plan is a
statement in text, maps, illustrations, and/or other media
that provides a basis for rational decision-making regarding
the long-term physical development of the institution."
Ordinance § 1910(A).
CPC meeting, Brown sought approval of the amendment to the
IMP, which accommodated the parking lot and several other
institutional objectives. The CPC approved Brown's
amendment to the IMP. In its decision, the CPC stated that
"[t]he Comprehensive Plan requires educational
institutions to provide five year IMPs to ensure that there
is limited growth and [no] negative impacts on
neighborhoods." CPC Letter at 2-3. The CPC stated that
it "found that a statement about the provision of
parking and its effect on traffic management to be consistent
with Objectives M-1 and M-6 of the plan, which promote
provision of varied transportation options and parking."
Id. at 3.
"granted final plan approval to the IMP" amendment,
subject to Brown's "return to the CPC in 2017 with a
revised IMP that includes information on the use, density and
design of the development that will occur on the site of the
parking lot, " and approval of a special use permit from
the Board. Id.
April 13, 2016, Attorney Teitz presented Brown and
Farview's case for a special use permit to the Board. Tr.
187, Apr. 13, 2016. A surface parking lot is a use in a C-2
commercial district that requires the Board to issue a
special use permit. See Ordinance T12-1; Ordinance
§ 1901. The Board noted in its decision that "prior
to the hearing, the Members of the Board individually made
inspections of the Property and of the surrounding
neighborhood." Resolution No. 2016-08 (Resolution) at 2.
calling witnesses to testify before the Board, Attorney Teitz
explained the reasons for his client's request for a
special use permit. Tr. 187, Apr. 13, 2016. Attorney Teitz
first made clear that Brown was "not seeking any
approval from [the] zoning board to demolish the seven houses
that are there." Id. at 187:19-21. He explained
that the buildings on the property were not part of a city
historic district and therefore were not under the
Board's jurisdiction. Id. at 187:22-25.
Teitz expressed that the land on which Brown and Farview
wished to build a parking lot was in "an [I]-3 overlay
zone." Id. at 191:2-3. If Brown made the
parking lot exclusive to those with Brown parking permits,
they could do so without a variance, he noted. Id.
at 191:10-14. Attorney Teitz continued, adding that Brown
wished the parking lot to be "a benefit to the
neighborhood and the commercial uses on Thayer Street and
provide it as a public lot." Id. at 191:14-17.
Attorney Teitz summarized Brown's position during the
hearing, maintaining that Brown asked the Board
"to approve the difference between a parking lot where
people drive in with Brown parking stickers on their
windshield and park there all day, to a parking lot where
people who are going to be shopping and eating in
restaurants, and so forth, on Thayer Street, will come in and
use this parking lot and pay for it. That's the gist of
relief that [we are asking] for with the special use
permit." Id. at 191:24-192:8.
Creppell (Creppell), Brown's university architect,
testified as Brown's first witness. Id. at
192:9-17. Before working at Brown, Creppell "served as
planning director for the City of New Orleans . . . and also
worked as a city planner in New York City for a short while
before that." Id. at 192:22-25. Creppell also
worked "as a university architect for Tulane University
in New Orleans." Id. at 193:1-2.
first addressed the buildings that were to be demolished at
the property. Creppell testified that the houses that Brown
"purchased in July of 2014 . . . [were] not inhabited
and [were] uninhabitable because of the level of fire code
hazard[s], city code violations, [and] lead asbestos."
Id. at 193:23-194:3. Creppell also asserted that
"[w]e do intend to have this site developed for academic
or residential uses." Id. at 194:3-4. Creppell
also addressed the two-year "time frame" of the
special use permit. Id. at 197:15-16.
"[P]lanning, design and construction of academic
buildings typically take several years." Id. at
194:8-10. Creppell added, "we wanted to propose an
interim use that would be supportive . . . [of] our own
institutional master plan but also in support of the Thayer
Street merchants." Id. at 194:13-16.
further explained that "part of the acquisition of the
property was to be consistent with our institutional master
plan which as a sort of overall principle is to concentrate
at the core of our campus of which this is a part[.]"
Id. at 196:18-22. Whatever the new building is,
Creppell told the Board, it will "be oriented toward
active university uses while we also move some . . .
[university] supportive administrative functions to the
jewelry district." Id. at 196:23-197:1. "I
would rush to say that the university doesn't in general
seek to create surface parking lots. In fact, we have on our
campus, removed 500 surface parking [spaces] in the last 12
years." Id. at 195:14-18. Creppell also stated
that local business owners are aware that this parking lot is
temporary. Id. at 195:3-6. She stated that "the
goal is to get to an academic and university supportive use
on this site." Id.
B. Stabach (Stabach), a civil engineer for Vanasse Hangen
Brustlin, Inc. (VHB), testified briefly during the hearing.
Id. at 198:16-17. Stabach presented the parking lot plans
to the Board. Id. at 198:19-21. He testified that
the plan met all buffer, setback, dimensional, landscape, and
tree canopy coverage requirements. Id. at
198:21-199:4. Stabach also described the drainage system for
the parking lot, which would be integrated into the
landscape. Id. at 200:1-11.
Clinton (Clinton), a traffic engineer for VHB, testified
next. Id. at 201:23-202:17. He testified that
"[w]e performed a traffic study of the surrounding
roadways." Id. at 202:18-19. Clinton asserted
that the parking lot "is not a traffic generator. It may
actually reduce traffic by reducing the circulating
traffic." Id. at 203:23-25. Clinton concluded
after conducting the traffic study, "if you were to . .
. instantaneously build this overnight and do counts before
and after, there would be no substantial change in the
statistical daily traffic on the roadways surrounding the
site." Id. at 204:8-12.
Michael Cassidy (Cassidy), a Land Use/Zoning Consultant from
JEM Services, spoke on Brown's behalf. Id. at
205:7-8. Cassidy testified that the ordinance governing a
commercial parking lot in a C-2 zone has several
requirements. Id. at 205:17-21. The first
requirement demands that the parking lot only be for
"temporary parking of motor vehicles." Id.
at 205:22-23. He added that the same requirement does not
permit "off street loading areas" and that Brown
and Farview did not plan to have a loading area in the
parking lot. Id. at 205:23-25. He testified that the
second requirement states the only structures that can be
built within the surface parking lot are "shelters of
attendan[ts] or a payment kiosk." Id. at
206:1-3. He added that "[there] are no structures
proposed, but potential[ly] if there is a commercial operator
and they need a kiosk, or something, then it will conform to
the requirements of the zoning ordinance." Id.
at 206:4-8. Cassidy stated that the third requirement demands
that parking lots "be screened and landscaped in
accordance with requirement of the Zoning Ordinance."
Id. at 206:17-20. Cassidy concluded saying,
"[f]inally, it must be in compliance with the
Comprehensive Plan. On January 19, 2016, the City Plan
Commission granted additional approval of Brown's
application for the amendment to the institutional master
plan which included this proposed parking lot as well as all
of the components of their plan." Id. at
M. Scotti (Scotti), of Peter M. Scotti & Associates Real
Estate, testified as an expert witness on real estate.
Id. at 208:8-17. He testified that he
"believe[s] that if the petitioner's request is
granted it will not injure the use and enjoyment of the
neighboring properties." Id. at 210:20-23.
Scotti added that he believes the parking lot
"will also have a positive effect on surrounding uses
and I believe on values. Since the applicant could use the
lot for their own purposes, for university purposes without
coming before you, denial of this petition to use it for
public purposes would amount to more than a mere
inconvenience." Id. at 211:2-9.
added that he could see no harm in the old dilapidated
buildings being removed and a parking lot taking its place
"for an interim period of time." Id. at
211:15-18. He again asserted that "[t]here would be no
harm to the value of the surrounding property."
Id. at 211:21-22.
the closing of Attorney Teitz's presentation, Kurn voiced
his opposition to the proposal. Id. at 213:12-16.
Kurn cited a letter, written by an attorney who was not
present at the hearing, to the Board throughout his
testimony. See id. at 214:2-215:19. Kurn stated
"that [the] creation of a surface parking lot is in
direct contravention" of the Comprehensive Plan, as well
as the IMP. Id. at 214:12-18; 215:10-19. He cited
Brown's IMP and stated that "Brown's [IMP] makes
a broad statement about development inward towards the
core." Id. at 215:10-12. He added that the
parking lot "is at the outskirts of where I think most
people would [think would] be the core of Brown
University." Id. at 215:17-19.
Dulgarian (Dulgarian) also commented about the proposal
before the Board. Id. at 215:21. Dulgarian told the
Board that Brown's claim it had eliminated 500 parking
spaces should be supported by requiring Brown to submit a
map. Id. at 215:22-216:1. Dulgarian further asserted
that he did not believe that the seven houses Brown purchased
"were in disrepair." Id. at 216:1-9.
Dulgarian stated, "[t]hat stretches the imagination, and
so before any decision is made, this board should request
from Brown what those disrepair items are for each of the
seven houses." Id. at 216:10-13.
Personeus (Personeus), the Executive Director of the Thayer
Street District Management Authority, made a statement.
Id. at 216:25-217:2. Her organization, as well as
the Thayer Street Merchants Association, supported the
parking lot's construction. Id. at 217:10-14.
She testified that
"[w]ith the addition of the meters that we have, there
have been some significant businesses that have been hurt by
that. One in particular is the Avon Cinema where their movies
go longer than two hours and the ...