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Krikor S. Dulgarian Trust v. Strother

Supreme Court of Rhode Island

June 9, 2017

KRIKOR S. DULGARIAN TRUST; and SETH KURN
v.
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

         Providence County Superior Court

          For Plaintiff: Joelle C. Rocha, Esq.

          For Defendant: Andrew M. Teitz, Esq. Lisa Dinerman, Esq.

          DECISION

          CARNES, J. JUSTICE.

         Before 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 § 45-24-69.

         I

         Facts and Travel

         Farview, 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.

         Before 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.

         When 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.

         Currently, 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.

         On 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.

         The City of Providence Zoning Ordinance (Ordinance) requires all colleges and universities in Providence to have an IMP. The Ordinance states:

"[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).

         At the 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.

         The CPC "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.

         On 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.

         Before 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.

         Attorney 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.

         Collette 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.

         Creppell 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.

         Creppell 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.

         Jonathan B. Stabach (Stabach), a civil engineer for Vanasse Hangen Brustlin, Inc. (VHB), testified briefly during the hearing. Id. at 198:16-17.[1] 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.

         Robert 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.

         Next, 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 207:13-19.

         Peter 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.

         Scotti 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.

         After 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.

         Grant 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.

         Donna 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 ...

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