County Superior Court
Plaintiff: Stacy K. Hurley, Esq.
Defendant: John O. Mancini, Esq. Nicholas J. Goodier, Esq.
Lisa Dinerman, Esq.
LANPHEAR, J. MAGISTRATE JUDGE.
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 §
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).
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
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).
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.
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,  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.
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.
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
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.
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:
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
"(1) In violation of constitutional, statutory, or
"(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).
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 ...