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Bronhard v. The Zoning Board of Appeals of City of Providence

Superior Court of Rhode Island, Providence

February 13, 2018

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

          For Plaintiff: Nicholas L. Nybo, Esq. William M. Dolan, Esq.

          For Defendant: Lisa Dinerman, Esq. Andrew M. Teitz, Esq. Amy H. Goins, Esq.


          VOGEL, J.

         Walter 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 Individuals.[1]

         I Facts and Travel

         The 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.[2]

         The 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.)

         The 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.)

         After a 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.

         On May 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.

         Mr. 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. at 12.

         Mr. 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. [3] 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.

         With 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.[4] 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.

         Mr. 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.

         Two 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.

         Thereafter, 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.)

         Mr. 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.

         He 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.

         A 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.

         On May 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 space." Id.

         Bronhard 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)).

         At the 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.

         Mr. Dulgarian next addressed the Board of Appeals. [5] 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.

         Counsel 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.

         At the 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.)

         II Standard of Review

         Section 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 ...

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