WALTER L. BRONHARD
THE ZONING BOARD OF APPEALS OF THE CITY OF PROVIDENCE; R.E. JOHNSTON FAMILY, LLC; CHRISTINE WEST, in her capacity as Chair of the City Plan Commission for the City of Providence, RI ("CPC"); HEATHER TOW-YICK, in her capacity as Member of the CPC; MEREDYTH CHURCH, in her capacity as Member of the CPC; LOUIS TORRADO, in his capacity as Mayoral Designee of the CPC; JOSEPH ELLIOTT, in his capacity as Member of the CPC; MICHAEL GAZDACKO, in his capacity as Member of the CPC; HARRISON BILODEAU, in his capacity as Member of the CPC; JIM LOMBARDI, in his capacity as Treasurer of the City of Providence
Plaintiff: Nicholas L. Nybo, Esq. William M. Dolan, Esq.
Defendant: Lisa Dinerman, Esq. Andrew M. Teitz, Esq. Amy H.
L. Bronhard (Bronhard or Appellant) brings this appeal from a
decision of the Zoning Board of Appeals (Board of Appeals) of
the City of Providence, sitting as the Planning Board of
Appeal. In its decision, the Board of Appeals upheld a ruling
of the City Plan Commission (CPC or Commission) granting
Preliminary Plan Approval for Major Land Development Project
to R.E. Johnston Family, LLC (Applicant). Bronhard asks the
Court to reverse that decision and to find that the CPC acted
without authority in granting the Applicant's request for
Preliminary Plan Approval. This Court exercises jurisdiction
over this matter pursuant to G.L. 1956 § 45-23-71 and
chapter 92 of title 42 of the R.I. General Laws, entitled the
Equal Access to Justice for Small Businesses and
Facts and Travel
Applicant owns property located at 249 Thayer Street in
Providence (Property), otherwise known as Lot 49 of
Assessor's Plat 13 (Corrective Warranty Deed). Bronhard
owns a multi-family residential property located at 5 Euclid
Avenue that directly abuts the Property.
Property is located in a C-2 zone "and consists of a one
story building most recently used as a convenience
store." (Notice of Master Plan Approval at 1.) A C-2
zone is a General Commercial District "intended for more
intensive commercial uses and key commercial nodes, including
larger retail establishments." (Providence Zoning
Ordinance (Ordinance) § 500B.) The maximum height for
buildings in a C-2 zone is fifty feet, and the buildings
cannot contain more than four stories. (Ordinance § 502,
Table 5-1: Commercial District Dimensional Standards.)
Applicant filed with the CPC an Application for Major Land
Development Project seeking "to demolish the [existing]
building and construct a 61 foot tall, 5 story mixed use
building with residential, institutional and commercial
uses." (Notice of Master Plan Approval at 1.) Because
C-2 zones limit buildings to four stories and fifty feet in
height, the Applicant requested "a dimensional
adjustment for one story and 11 feet." (CPC Minutes at
2, Feb. 23, 2016.) In return for the adjustment, the
Applicant proposed "widen[ing] the sidewalk to provide
additional public space for patrons and users of the
street." (Notice of Master Plan Approval at 1.)
hearing on February 23, 2016, the CPC voted to approve the
Master Plan Stage of the Application. Id. The CPC
observed in its decision that Applicant was seeking "an
adjustment from the height limit and proposed to provide
public space as an amenity." Id. at 2. However,
the CPC did not act on Applicant's request for a height
adjustment at that point in time; instead, the Commission
opted to address the height adjustment issue at the
Preliminary Plan Stage when the Commission would have
received additional information and be better able to assess
the request. Id. The CPC ordered Applicant, among
other things, (a) to submit a shadow study in order to show
"the difference in shadows cast by a four story and five
story structure" at set times during the day and during
the winter and summer solstices; and (b) to "work with
the Department of Public Works [DPW] to secure the portion of
the street intended for public use." Id. at 4.
17, 2016, the CPC conducted a hearing on the Preliminary Plan
Stage of the Application. (Tr. dated May 17, 2016 (Tr. I)).
The Applicant presented two expert witnesses at the hearing
to testify on behalf of the Application: Licensed
Professional Landscape Architect Ricardo Dumont and
Professional Engineer Brian King. Id. at 8 and 31.
Dumont testified that he had conducted a shadow study of the
Property based upon a revised plan to construct a building
with four floors and a mezzanine, rather than five full-sized
floors. Id. at 10. This revised plan reduced the
height of the building to fifty-seven feet in the front of
the building, and to a stepped down height of forty-seven
feet in the back. Id. at 12-13. Under the plan, the
first floor of the Property would contain retail space, the
second and third floors would have office space, and the
fourth and fifth floors would house three, two-story
duplexes. Id. at 14. The stepped-down area on the
roof would include a roof garden and a greenhouse garden for
use by the occupants of the residential units. Id.
Dumont then addressed the proposed public amenity that
Applicant was offering to the city in exchange for the height
adjustment. He testified that in return for the height
adjustment, the Applicant had offered to construct an
eleven-foot long, pervious-pavement "bump-out" of
the sidewalk.  This bump-out would occur beyond the curb
line into an area currently utilized for on-street public
parking and would not involve any land owned by Applicant.
The bump-out area would contain two trees, a bench, and no
tables. Id. at 16-17.
respect to the shadow study, Mr. Dumont testified he measured
the shadow lengths that a fifty-foot high building would make
at various times of the day and year. Id. at 18-20. He
then compared those measurements with the shadow lengths that
the proposed fifty-seven foot high building would make during
those same periods. Id. Mr. Dumont concluded that
the difference between the two sets of measurements is
"three to four feet of increased shadow length in all
times of the year." Id. at 36-37.
King testified next. He stated that the drainage report
indicates that the development, including the bumped-out
sidewalk area, "is within the construction limits."
Id. at 32. He also stated that the pervious pavers
in the bump-out area "will help reduce the stormwater
runoff." Id. He then testified that "[w]e
have worked with the Public Works Department for this
[bump-out] area[, ] [and] [w]e have prepared an operation and
maintenance booklet that will be followed by the owner of
this lot to inspect and maintain this public use area, to
clean it as needed." Id. Mr. King indicated
that "[w]e have received permits from Narragansett Bay
Commission for the sewer system and also for drainage."
Id. Mr. King further stated that in addition to
putting in two new trees in the bump-out area, they are
prepared to meet the "Tree Ordinance" requirements
either by providing or paying for three additional trees.
Id. at 33.
objectors then testified. John Gallagher stated that he
believed that the modern design of the building does not fit
in with the historical quality of the surrounding area.
Id. at 39-40 (stating that it "looks like
it's going to be a big glass ice cube, really").
Grant Dulgarian next testified on behalf of a trust that owns
property across the street. Mr. Dulgarian stated that there
was "no justification" for allowing an additional
story beyond the four-story limit. Id. at 41. He
then observed that there is a shortage of parking on Thayer
Street, and that the proposed sidewalk bump-out would take
away an existing public amenity; namely, on-street parking.
Id. at 41 and 44. Mr. Dulgarian then posited that
the shadow study was inaccurate because "[i]f this
building were only four stories instead of five, it
wouldn't be a 50-foot building. So the difference
[between the shadow measurements] would be greater."
Id. at 44.
counsel for the Applicant responded to a letter that the
College Hill Neighborhood Association (CHNA) had sent to CPC
in support of the plan, and which also contained five
requests. Id. at 46-48; see also Letter
from CHNA, dated May 14, 2016. Counsel stated that the
Applicant was willing to fulfill four of the requests, but
characterized as inappropriate a request "that the
retail space be designed for shops rather than
restaurants." (Tr. I at 46.)
Robert Azar then presented the findings of fact contained in
the CPC Staff Report. Id. at 49. Observing that the
Preliminary Plan had proposed a building which would be over
the height limit, Mr. Azar succinctly stated:
"In order for them to justify this additional height,
they're proposing the provision of a public amenity,
which is this bumped-out sidewalk within the public
right-of-way. We are in favor of granting that dimensional
adjustment subject to the applicant working with the City
engineer to frame an agreement that would allow the applicant
to develop and maintain that public space in the interest of
the public." Id. at 50-51.
later recommended that "[t]he CPC should grant the
height adjustment for seven feet and one-story, finding that
the applicant will provide public space as an amenity."
Id. at 51.
member of the CPC then made a motion to incorporate Mr.
Azar's findings of fact, as well as the list of
conditions contained in the Staff Report. Id. at 56.
Thereafter, the CPC unanimously voted to approve the
Preliminary Plan. Id.
25, 2016, CPC issued a written decision. (Notice of Prelim.
Plan Approval, dated May 25, 2016.) In its decision, CPC
observed that "[t]he applicant requested a dimensional
adjustment from the 50 foot, four story height limit in this
zone. The applicant is also proposing to widen the sidewalk
to provide additional public space for patrons and users of
the street." Id. at 1. The CPC found that
"[c]reation of a public seating area would conform to
the [Comprehensive] [P]lan's objective of creating more
usable public space." Id. at 2. Referring to
the shadow study, CPC then "found that the proposed
height was not expected to have a negative effect on
surrounding character." Id. The decision
further stated that the CPC had
"voted to grant the adjustment finding that the
applicant would be developing and maintaining public space as
an amenity. The CPC required that the applicant work with the
City Engineer to secure the space intended for public use and
frame an agreement outlining a maintenance schedule for the
and Mr. Dulgarian timely filed separate appeals. (Notices of
Appeal, filed on June 13, 2016 and June 14, 2016,
respectively.) On July 13, 2016, the Board of Appeals
conducted a duly noticed hearing on the appeal. (Notice of
Public Hearing, dated June 28, 2016, and Tr. dated July 13,
2016 (Tr. II)).
hearing, counsel for Bronhard contended that the CPC failed
to consider whether the proposal is in harmony with
neighboring uses and whether it promotes the objectives and
purposes of the Comprehensive Plan, as required by the
relevant statute. (Tr. II at 244-45.) He further posited that
the Applicant first should have sought a dimensional variance
from the Zoning Board. Id. at 249. Counsel for
Bronhard also objected to the proposed bump-out, stating that
it simply was substituting one public amenity with another
public amenity. Id. at 257. He contended that by
swapping one amenity (parking) for another amenity (the
bench), the Applicant would not be providing an
additional amenity as required by the Ordinance.
Id. at 259. At one point, counsel for Bronhard
attempted to introduce pending legislation as evidence of
legislative intent; however, the Board of Appeals did not
accept it in as an exhibit because the Governor had not
signed the legislation. Id. at 251 and 253-55.
Dulgarian next addressed the Board of Appeals.  He reiterated the
previous argument; namely, that the Ordinance does not permit
the elimination of one public amenity in order to replace it
with another public amenity. Id. at 263. Mr.
Dulgarian also challenged the shadow study, asserting that
the study should have compared the proposed fifty-seven foot,
five-story building with a four-story building consisting of
forty-six feet. Id. at 268-69.
for the Applicant countered that the CPC possesses the
authority to grant a zoning incentive. Id. at 274.
He additionally asserted that this is not a case of amenity
swapping because on-street public parking does not constitute
an amenity. Id. at 281-82. He also pointed out that
the Ordinance permits use of the public right-of-way as an
amenity when it allows owners to plant "street
trees" in the public right-of-way for purposes of
meeting the Ordinance's canopy coverage requirement.
Id. at 283-84. Lastly, he disputed Mr.
Dulgarian's suggestion that the Applicant would construct
a forty-six foot high building if restricted to four stories.
Id. at 286. Instead, counsel for the Applicant
stated that if the CPC were to deny a fifth story, the
Applicant would construct a four-story, fifty-foot high
building that "would just have taller ceilings in the
different floors." Id.
conclusion of the hearing, the Board of Appeals deliberated
on the matter. Id. at 300-18. Thereafter, the Board
of Appeals first voted in favor of a motion that the weight
of the evidence supported the CPC's finding that the
seven-foot height adjustment was appropriate, and that there
was an insignificant difference between the shadow cast by a
fifty-seven foot building as opposed to a fifty-foot
building. Id. at 310. The Board of Appeals next
voted in favor of a motion that § 45-24-47 gave
authority to the CPC to grant a height incentive.
Id. at 313-14. Finally, the Board of Appeals voted
in favor of a motion that the CPC "did not make a clear
error in providing for a height adjustment linked to the
provision of a public amenity." Id. at 316-17.
On August 16, 2016, the Board of Appeals memorialized its
determinations by issuing a written decision upholding the
CPC's grant of Preliminary Plan Approval. (Resolution No.
2016-26, dated August 16, 2016.) Bronhard timely appealed the
decision to this Court on August 29, 2016. (Compl.)
Standard of Review
45-23-71(b) grants the Superior Court jurisdiction to review
a zoning board of appeals' decision to uphold a city or
town planning commission's decision. The standard by
which the Superior Court reviews zoning board of appeals'
decisions is governed by § 45-23- 71(c), which provides
in pertinent part:
"The court shall not substitute its judgment for that of
the planning board as to the weight of the evidence on
questions of fact. The court may affirm the decision of the
board of appeal or remand the case for further proceedings,
or may reverse or modify the decision if substantial rights
of the appellant have been ...