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Charles Orms Associates v. Zoning Board of Review of The City of Providence

Superior Court of Rhode Island

December 8, 2017

CHARLES ORMS ASSOCIATES, Appellant,
v.
ZONING BOARD OF REVIEW OF THE CITY OF PROVIDENCE, MARC A. GREENFIELD, SCOTT WOLF, ARTHUR V. STROTHER, VICTOR CAPPELAN, and ENRIQUE MARTINEZ, in their capacities as Members of said Zoning Board, CAPITAL ADVERTISING, LLC, and PETTIS PROPERTIES, LLC, Appellees.

         Providence County Superior Court

          For Plaintiff: Stacy K. Hurley, Esq.

          For Defendant: John O. Mancini, Esq. Nicholas J. Goodier, Esq. Lisa Dinerman, Esq.

          DECISION

          LANPHEAR, J. MAGISTRATE JUDGE.

         Before the Court is the appeal of Charles Orms Associates (Appellant) from a decision by the Zoning Board of Review of the City of Providence (Zoning Board) granting use and dimensional variances to Capital Advertising, LLC (Capital or Applicant) and Pettis Properties, LLC (Pettis) (collectively, Appellees). Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

         I

         Facts and Travel

         Pettis is the owner of an 11, 761 square foot vacant lot located at 58 Printery Street in Providence, Rhode Island, otherwise known as Lot 447, Assessor's Plat 2 (the Property). See Application for Variance or Special Use Permit at 4, Jan. 19, 2016. The Property is located in a Heavy Commercial C-3 Zone (C-3 District). See id.; Art. 5, § 500(C) of the Zoning Ordinance of the City of Providence (hereinafter, the Ordinance).

         On May 12, 2011, Capital filed its first Application for Variance or Special Use Permit (First Application) with the Zoning Board seeking relief from Sections 303-use code 68, 305, 603.2, 603.3 and 607.4 of the Ordinance. Exhibit A at 1.[1] Capital sought use and dimensional variances to allow for the construction of a new "V" shaped billboard 112 feet in height, consisting of two sign panels facing in opposite directions, and each billboard face measuring 48 feet by 14 feet. Id. at 1-2. Additionally, Capital sought use and dimensional variances seeking relief from the regulations of the Ordinance of the City of Providence (City) governing freestanding signs, maximum sign area, height, and signs that move on billboards. Id. at 1; Art. VI, § 603.2 of Providence Zoning Ordinance of 1994 (Ordinance of 1994).

         The Zoning Board conducted a duly noticed hearing on July 27, 2011, and-following consideration of all testimony and documentary evidence before it-voted to approve the Application by a four to one vote (First Resolution). Issued on September 20, 2011, this decision is memorialized in Zoning Board Resolution No. 9635. See Resolution No. 9635, Sept. 20, 2011. The Appellant then appealed.

         On March 21, 2014, this Court affirmed the Zoning Board's decision in part, and remanded in part a specific issue. Charles Orms Assocs. v. Zoning Bd. of Review of Providence, 2014 WL 1246535, at *15. The Court specifically found that the Zoning Board failed to make any finding or any conclusion with respect to the request for relief from Art. VI, § 603.2 of the Ordinance, which prohibits "animated signs in which an image changes at a frequency of faster than every thirty (30) minutes . . . ." Art. VI, § 603.2 of the Ordinance of 1994. The Court held that the Zoning Board failed to address "whether the requested relief from [A]rt. VI, § 603.2 of the Ordinance is the least relief necessary to alleviate the Applicant's hardship." Charles Orms Assocs., 2014 WL 1246535, at *14. Thereafter, on January 19, 2016, [2] Capital filed an application (Second Application) for the limited purpose of eliciting a determination from the Zoning Board as to "whether the digital portion of the requested relief is the least relief necessary . . . ." Id.

         Over two years after the Court's prior decision, the Zoning Board conducted a duly noticed de novo hearing at which the Zoning Board properly reviewed Capital's Application on the specific issue on remand. See Resolution No. 2016-25, Aug. 3, 2016. At the hearing, the Zoning Board heard testimony in favor of the Application from Thomas Badway, a principal member of the ownership group of the Property, and Mary Burns and Edward O'Sullivan, both of Capital. See id. Badway specifically testified that the Property has been in his family since the early 1970s and how the Property is unfit for the erection of a building. Burns testified that of the over 200 billboards her company maintains, only six are electronic billboards, and she is not interested in building a traditional billboard. (Exhibit 8: Tr. 99, 109-110, July 13, 2016.) O'Sullivan expressed concern regarding the potential profitability of a shorter interval of time displayed on the billboard.

         Also, prior to the hearing, the Zoning Board received and considered two letters in opposition to the proposed electronic billboard; a letter from Dean Weinberg, President of Summit Neighborhood Association, and a letter from Brent Runyon, Executive Director of the Providence Preservation Society. Weinberg expressed concern about the Application and its potential to inhibit goals of the North Main Street commercial district. Runyon also expressed similar concerns and felt that the relief sought is not the least relief necessary.

         The Zoning Board unanimously voted to grant Resolution No. 2016-25 dated August 3, 2016 (Second Resolution). The board found "that the proposed electronic billboard is the least relief necessary to relieve the hardship posed by the Property. . . ." See Resolution No. 2016-25 at 3. Thereafter, the Appellant filed a timely Second Appeal with this Court of the Zoning Board's Second Resolution that granted the Application for a variance of the Ordinance.

         II

         Standard of Review

         Section 45-24-69(a) provides this Court with the specific authority to review the decision of a zoning board. This Court's review is governed by § 45-24-69(d), which 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 of the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Sec. 45-24-69(d).

         Judicial review of an administrative action is "essentially an appellate proceeding . . ." Notre Dame Cemetery v. R.I. State Labor Relations Bd., 118 R.I. 336, 338, 373 A.2d 1194, 1196 (1977); see also Mauricio v. Zoning Bd. of Review of Pawtucket, 590 A.2d 879, 880 (R.I. 1991). The Superior Court may not substitute its judgment for that of the zoning board if it conscientiously finds that the board's decision was supported by substantial evidence. Apostolou v. Genovesi, 120 R.I. 501, 507, 388 A.2d 821, 824 (1978). The reviewing court "examines the record below to determine whether competent evidence exists to support the tribunal's findings." New England Naturist Ass'n, Inc. v. George, 648 A.2d 370, 371 (R.I. 1994) (citing Town of Narragansett v. Int'l Ass'n of Fire Fighters, AFL-CIO, Local 1589, 119 R.I. 506, 380 A.2d 521 (1977)). Thus, this Court's review of a zoning board's factual findings is undertaken to ensure that a ...


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