Opinion
C. A. PC-2018-4604
05-08-2020
JOHN D. BERGMAN, Appellant, v. The City of Providence Board of Appeals and Mark Greenfield, Arthur Strothers, Scott Wolf, Helen Anthony, Ian Baldwin, and Victor Capellan, in their capacities as members of the City of Providence Board of Appeals and The City of Providence City Plan Commission, and Christine West, Michael Gazdacko, Harrison Bilodeau, Joseph Elliot, Jules Opton-Himmel, Luis Torrado, and Nicole Verdi, in their capacities as Members of the City of Providence City Plan Commission and 1209 Westminster Street, LLC and Michael Lemoi, Appellees.
For Plaintiff: John J. Garrahy, Esq. For Defendant: Lisa Dinerman, Esq.; Joelle C. Rocha, Esq.
For Plaintiff: John J. Garrahy, Esq.
For Defendant: Lisa Dinerman, Esq.; Joelle C. Rocha, Esq.
DECISION
TAFT-CARTER, J.
Plaintiff John Bergman (Plaintiff, Appellant, or Bergman), appeals a June 13, 2018 Decision (Decision) of the Zoning Board of Appeals (ZBA or Board) of the City of Providence (City), approving the request of Defendant Michael Lemoi (Defendant, Applicant, or Lemoi) for a dimensional adjustment and parking adjustments for his property at 1292 Westminster Street in Providence, Rhode Island (subject property). Jurisdiction is pursuant to G.L. 1956 § 45-23-71.
I
Facts and Travel
Lemoi, owner of the subject property, and Eric Zuena (Zuena), Managing Principal and Project Architect of ZDS Inc., submitted a Major Land Development Project Application(Application) to the City Plan Commission of Providence (CPC) on July 26, 2017. See § 45-23-39(b). The application was signed by Mr. Lemoi. Both Lemoi and Zuena (Applicants) proposed a demolition of a single-story masonry building and the construction of a mixed-use five story building-approximately 7220 square feet of commercial space on the first floor and 35, 280 square feet of residential space equaling a total of 35 dwellings on floors two through five- totaling 42, 500 square feet. In addition to the demolition, the Applicants requested two dimensional variances seeking relief from §§ 502 and 1401 of the City of Providence Ordinance: a dimensional (height) adjustment of approximately 9 additional feet from the existing 50-foot height restriction, and an adjustment for a reduction in the amount of required parking spaces. The subject property is located in a C-2 (Commercial) District under a Historic overlay.
Pursuant to § 45-23-39(b), the Project was subject to Major Land Development Review, consisting of three stages of review: (1) Master Plan; (2) Preliminary Plan; and (3) Final Plan. The underlying appeal appeals the approval at the preliminary plan review stage only.
The City of Providence Zoning Ordinance provides that a C-2 Zone is a General Commercial District which is intended for "more intensive commercial uses and key commercial nodes, including larger retail establishments. See Zoning Ordinance Article 500: Purpose Statements. According to Table 12-1 of the Zoning Ordinance, a Multi-Family use is permitted in a C-2 Zone.
On August 15, 2017, the CPC held a duly noticed public meeting and "voted to grant Master Plan approval, which included a height adjustment but deferred to the preliminary plan stage, the Applicant's request for a parking adjustment." Pl.'s Compl. ¶ 4; see also City's Mem. Ex. 8. According to the Zoning Ordinance, the required amount of parking spaces is calculated to 43 spaces; however, the Applicants requested a reduction in the number of parking spaces due to the limited amount of square footage remaining on the property after proposing to build the 5-story development. See Tr. 16:16-18, Aug. 15, 2017. The Applicant requested a reduction of 22 spaces. Id.
Mr. Lemoi did not attend the August 15, 2017 hearing and instead submitted an affidavit on August 21, 2018, confirming he is the principal of the entity that owns the subject property. Lemoi Aff. ¶ 1. Lemoi confirmed he received approvals from the CPC and the Historic District Commission (HDC) to construct a five-story mixed use building on the subject property. Id. ¶ 2. Appellant missed the deadline to file an appeal of the Master Plan approval. Despite having missed the deadline to appeal Master Plan approval, on November 10, 2017, Appellant filed a complaint in Superior Court against Appellee Michael Lemoi, the City of Providence, the Zoning Board, and Eric Zuena through Civil Action PC-2017-5408. The case was subsequently dismissed with prejudice on April 12, 2018. Following the receipt of Master Plan approval, the Applicants proceeded to demolish the one-story structure formerly on the subject property. Id. ¶¶ 3-4.
The proposal for the parking adjustment was readdressed before the CPC at the Preliminary Plan hearing on November 14, 2017. Before the Preliminary Plan hearing, on November 3, 2017, the Applicants submitted a waiver request to the CPC to waive five specific technical reports (grading and utility plan, drainage plan, erosion and sediment control plan, site maintenance plan, and detailed landscaping plan with photometric analysis) required for the Preliminary Plan stage and to submit the documents at the final stage of review. At the hearing on November 14, 2017, the CPC voted to deny the waiver requests and further deferred the parking adjustment request upon submission of the five technical reports at the continued hearing date in January.
The parking adjustment matter was originally continued from November 14, 2017 to January 16, 2018, giving Mr. Lemoi the opportunity to further address parking concerns. At the January 16, 2018 Preliminary Plan hearing, the Applicants again requested an additional continuance until February 20, 2018. At the February 20, 2018 hearing, four of the five technical reports were submitted to the CPC, and the CPC's administrative officer issued a Certificate of Completion subject to the CPC's approval of the remaining waiver request for the one outstanding technical report.
At the final Preliminary Plan hearing on February 20, 2018, the CPC addressed the proposed parking at 334 Carpenter Street. Accompanying the Applicant's proposal was a compliance letter dated February 13, 2018 from Jeffrey L. Lykins, the Director of Inspection and Standards for the City of Providence (Lykins Letter). At the hearing, Mr. Robert Azar, the City's Deputy Director of Planning and Development, spoke in favor of the project. Tr. 2, Feb. 20, 2018. He stated that at the last meeting, the CPC did not approve or reject Applicant's request for a parking adjustment and continued it to January 16, 2018. Id. At that hearing, the matter was continued again to February 20, 2018 to which "[t]here was no further notice . . . because [such was] . . . sent for the December meeting" and "the request for a parking adjustment is significantly less . . . [as] applicant has acquired a piece of property within close proximity to 1292 Westminster." Id. at 3. Azar also explained Appellees were seeking fewer waivers, having addressed "submission of all the required engineering reports . . . grading, utility, drainage, erosion and sediment control, site maintenance" and still sought waivers for permits "from the Narragansett Bay Commission [NBC] and the Department of Environmental Management [DEM]" to be submitted prior to the final plan. Id. at 3-4.
Next, Brian King (King), a civil engineer for Crossman Engineering (Crossman), addressed the CPC regarding the technical submissions of the subject property. Id. at 7. First, King discussed the general site plan and proposed improvements including the new parking lot and new sidewalks. Id. He stated the parking area has "22 parking spaces . . . [with] a compact car space and an [Americans with Disability Act] ADA space in that 22[, ]" and the "remaining 20 are standard spaces[.]" Id. King noted the sidewalk next to Powhattan Street was narrower than normal and Crossman has "been working with the City engineer to provide an additional foot for an easement [for] . . . a more passable 4-foot wide sidewalk" and confirmed the sidewalk would be ADA compliant. Id. at 8-9. King addressed the landscape plan and observed that the project satisfies "the shade requirements from the City. Id. at 10. The lighting plan "has been done in accordance with the City requirements" and "the Illuminating Engineering Society recommendations for parking in pedestrian areas." Id. Next, King discussed the stormwater management plan and explained "the infiltration system . . . is designed to infiltrate a storm event from a one-year to a one-hundred-year event." Id. at 11-12. He stated "all of the building . . . runoff . . . will be infiltrated" and explained "[t]here will be no outflow to the roadway . . . [and] [t]he only area that is not collected would be the perimeter[, ]" which is "mostly landscaping." Id. at 12. Mr. King stated Crossman "submitted plans to" NBC "for the stormwater review and also the sewer application . . . [and] to DEM" and "sent plans to the City engineer for his review." Id. He stated the "system actually exceeds their requirements for NBC, in our . . . professional opinion, for both DEM and NBC." Id. at 13.
Zuena spoke next regarding the proposed off-site parking at 334 Carpenter Street. Id. at 15. The 334 Carpenter Street parcel is located in an R-3 zone (Residential District) with 9851 square feet of land, improved with a 2250 square foot non-conforming Auto Repair shop. See Lykins Letter. The walking distance from the subject property to the off-site parking is "355 feet, then another 140 feet right to the entry point of 334 Carpenter." Tr. 17, Feb. 20, 2018. Pursuant to the City of Providence's Zoning Ordinance, the existing auto repair shop "requires 7 spots for that use, leaving an additional 16 spots." Id. at 14. Zuena explained two options for creating more parking at 334 Carpenter. Zuena provided the option of requesting a 5-space parking reduction for the auto repair shop by "restriping the existing lot and using it as it is used today, as an auto body repair, allocating the 16 spaces over to 1292." Id. at 16. Zuena then described another option of improving the lot and bringing the development up to conformance with the code, thus requesting a 6-space parking reduction. Id. Azar noted that 334 Carpenter Street is "unsightly, to say the least," and provided a recommendation that "that site be brought into 100 percent compliance with all of the landscaping and fencing regulations for the residential zone." Id. at 17.
Counsel for the Appellant presented the history of the project and outlined the defects in the application process. Id. at 26-36. He stated that the design was a "massive building that was going to be built on not only the current property but the adjoining property." Id. at 27. However, that initial design was rejected, and a new proposal was provided to the HDC. Id. It was explained that up to 80 people signed a letter of opposition for the project. Id. at 28. Furthermore, the defects in the project are not compliant with the regulations. Id. At the meeting, it was argued that the signature on the Application by Mr. Lemoi and not the entity of 1290 Westminster Street, LLC was improper. Id. at 29. In addition, the notice for the Preliminary Plan was defective as it did not mention the alternative parking at 334 Carpenter Street, thus raising an inadequate notice issue. Id. at 29. Furthermore, the Applicant did not provide the traffic impact statement, as required by Regulation 605.3 in accordance with Rhode Island General Law 45-23-60(1), which is meant to provide reports on the existing traffic conditions. Id. at 30. Nor did the Applicant provide a fiscal report and impact statement, as required by Regulation 605.2 in accordance with Rhode Island General Laws 45-23-61, which is to outline the estimated cost of providing municipal services to the proposed development and the estimated revenue to be derived from taxes. Id. at 31.
Counsel went on to further discuss the legal non-conforming use issue at the proposed alternative parking lot. Id. at 32. He explained that the alternative parking lot at 334 Carpenter Street is an Auto Repair shop located in an R-3 zone with additional parking spaces to be used by prospective tenants at the subject property. Id. The R-3 zone does not allow for the existence of the auto repair shop on the property and also restricts the impervious surface to a maximum of 65 percent. Id. At the meeting, he provided the CPC with photocopies of the building official's building card documents regarding 334 Carpenter Street from 1974 and 1976 which indicated that the property was not historically used as an auto repair shop. Id. at 33.
Next, counsel discussed the relevant zoning ordinances pertaining to shared parking and tandem parking and the likelihood that a prospective tenant at the subject property would be disappointed to walk down a block to find his or her car blocked in by another tandem spot. Id. at 34. The only solution to remedying the tandem spaces at 334 Carpenter Street is to repave the auto repair lot, but as Moore addressed, the property is already a legal nonconforming use. Id. at 35.
Robert Azar (Azar) addressed the concerns raised about the signing of the application, the notice for the hearing, and the traffic and fiscal reports. Id. at 37-38. Azar stated that Lemoi is the principal owner of the LLC and that information was established on the record. Id. at 37. As for the notice for the preliminary plan, the notice did mention the request for a parking adjustment and the request for waivers of certain technical submissions. The parking adjustment and waivers of technical submissions were neither denied nor granted, but rather postponed to a later date. Azar stated on behalf of the CPC that it was not necessary for the Preliminary Plan hearing to be renoticed. Id. at 37. Although not an attorney, he noted the "law allows for a body to continue to a date certain, so that people who came to the hearing . . . have full notice in public of when this was going to be taken up again." Id. at 37-38.
Mr. Azar addressed the absence of traffic and fiscal impact studies and stated the Ordinance suggests that these studies must occur prior to approval from the CPC: the first paragraph of Section 605 states CPC "may require an impact statement at the expense of the applicant." Id. at 38. Azar noted that the ordinance Section 605 states further if the CPC wishes to require such, it may do so by a majority vote, and in the absence of such, studies are not required. Id.
Mr. Azar addressed off-site parking and specifically whether the business on the Carpenter Street property was a legal nonconforming use. Id. He referenced documents from Carrie Anderson from 2009 and Jeff Lykins (Mr. Lykins) from 2018 which discuss the legal use of 334 Carpenter Street. Azar stated that Mr. Lykins found that the auto repair shop is a legal non-conforming use in the residential zone. Id. at 39. Azar further addressed the two building cards which were presented by Counsel More. Id. He opined on this evidence presented for the Applicant and stated, "there was some sort of subdivision done subsequent to 1976, and at some point in time there was an auto repair facility established on what we now know to be 334 Carpenter Street." Id.
Additionally, Azar mentioned that the 334 Carpenter Street lot may be 100 percent paved which is another legal non-conforming use in an R-3 zone that has a maximum impervious surface level of 65 percent. Id. at 39-40. Azar suggested improving the lot by removing some of the paving and landscaping to conform the lot to what is required by the ordinance in an R-3 zone. Id. at 40. Finally, Azar mentioned the potential use of shared or tandem parking and the need for a site management plan to assure that residents would not have blocked in cars at 334 Carpenter Street. Id. at 41.
Next, Senator Paul V. Jabour (Jabour), representing District 5 in which the subject property is located, spoke on behalf of the area residents. Id. at 42. Jabour discussed the history and impact of the subject property on the area residents and also spoke on behalf of the residents and their concerns regarding the land development. The area was noted as an underdeveloped area that has recently been revamped over the past 35 years. Id. at. 44. Over time, the addition of markets, gas stations, and other businesses in the area has increased the traffic levels which appear to be a concern for the neighbors. Id. at 46. Jabour stated that this type of project should not be allowed without conducting a traffic study and therefore, a waiver for the required traffic reports should not be granted. Id. Other highlighted concerns were about the height of the project and how it could potentially impact the use of other neighbors recently installed solar panels. Id. at 48. Lastly, Jabour explained that more residents of the neighborhood would have been present for the hearing if there was a proper notice sent for the continued Preliminary Plan hearing. Id. at 47.
Next, Representative John Lombardi (Lombardi), serving the residents of Providence in District 8 in which the 334 Carpenter Street parking lot is located, testified before the CPC. Id. at 50. Lombardi explained the history of complaints about the manner in which the business at 334 Carpenter Street has been operating. Id. at 51. Lombardi asserted that 334 Carpenter Street has had "ongoing problems . . . at least since 1992," and has created traffic problems, noise, and odor. Id. at 50. He encouraged CPC to return the matter to HDC with the hope that the West Broadway Neighborhood Association (WBNA) and Appellees could "come up with a project we can all be proud of." Id. at 54. Lombardi concluded his opposition "has nothing to do with the current owners" but "[t]heir track record has not been good." Id. at 54-55. He reiterated the matter should be returned to HDC so the parties could negotiate their differences. Id. at 55.
A number of area residents spoke on behalf of the interest of the neighborhood. Rose Siegel (Siegel) spoke next and opined "on Westminster heading out of the City after 3:30 p.m., it is an absolute parking lot." Id. at 56. She described "five stories" as "unacceptable," and while "the WBNA wants retail on the first floor[, ]" she does "not think . . . rents are going to be at a level … small retail people in the neighborhood could afford." Id. at 58-59. Ms. Siegel recommended a four-story structure with handicapped accessible apartments on the first level, citing "an incredible need" for such. Id. She concluded by noting a "rumor" that the retail space may potentially end up being a night club which would "commensurate crowds, noise, fights, broken beer bottles on the street . . . [which is] completely unacceptable and not wanted by the neighborhood." Id. at 60.
Mr. Azar reiterated the property is in a C-2 zone, which does not "even allow . . . ancillary entertainment . . . never mind a nightclub. Nightclubs are only allowed in downtown in the C3 zone by special use permit in each[.]" Id. at 61. Further, "[t]he only type of entertainment . . . allowed in a facility in this zone is unamplified background music." Id.
WBNA member Kari Lang (Lang) stated the Carpenter Street property is "a real troublesome property" and "a problem site for over 20 years" and the City had to "do two different raids on" it. Id. She stated WBNA was working "aggressively to hopefully end the problem forever[, ]" but was not successful. Id. at 62. Janet Williams (Williams), a new resident since October 2017, explained her appreciation for the efforts of the WBNA in making the neighborhood a "wonderful place to live and to walk around." Id. at 70. However, Williams stated that she notices the "eyesore" on 334 Carpenter Street every day. Id. She concluded that the area traffic is a problem and if it gets worse, it will be a "huge problem." Id. at 72.
Grant Dulgarian (Dulgarian) spoke next and stated one "would be hard-pressed to find a handful of [nearby] buildings . . . close to the height of this proposed building." Id. He stated the City previously had a limit for every commercial district outside of downtown to not exceed 45 feet. Id. Mr. Dulgarian unsuccessfully opposed the ordinance increase to four stories and 45 feet. Id. at 72-73. He explained the recent increase to "four stories . . . [and] 50 feet" was "unbeknownst to most of us" and addressed his interaction with the Mayor and planning department and warned if the City allowed an increase to 50 feet, people will demand an increase in 5 stories. Id. at 73. He described a five-story building as "totally unacceptable" and "[n]obody likes this idea[.]" Id. He argued the decision to allow a fifth floor with the lower level as retail space "exacerbated an already deficient parking problem" and if CPC had limited the project to four stories with a requirement that it have "commercial on the first floor . . . [t]hat would have made . . . everybody . . . happy" and "nobody is happy" now. Id. at 73-74. He urged CPC to "go back to their original proposal . . . and reconsider." Id. at 74. He stated in granting approval, the CPC "migrated even further away from what the Zoning Ordinance is supposed to" do and urged it to "go back to . . . [its] decision-making process, because that's where the initial problem commenced[.]" Id. at 74-75.
Additional objectors testified. John Gallagher, who lived near Elmwood Avenue, not in the Westminster area, spoke next. Id. at 75. He stated he admired the architecture in Boston, Massachusetts and urged reconsideration of the project and approval instead of a structure "more historical and conform[ing] with the historic atmosphere of the neighborhood[.]" Id. at 76. Paige Bronk (Bronk) expressed strong opposition to a fifth floor and stated there "does not appear to be any criteria or standards that were applied" to such and further described the Carpenter Street property as "an ugly mess." Id. at 77, 83. Area resident BJ Duprey (Duprey) stated "from the get-go people felt that the five stories was just too big." Id. at 84. He stated the City "want[s] the building in the worst way" and opponents "feel it's out of scale." Id. at 85-86. Mr. Duprey has "been fighting that foolish illegal junkyard . . . for a long time" and described it as "completely illegal." Id. at 86-87. Rebecca Atwood (Atwood), who works, owns property, and volunteers in the area, stated her "whole heart is . . . in the West Side[, ]" was "disappointed . . . a five-story building" was being considered and emphasized the significant neighborhood opposition and lack of environmental studies. Id. at 89-90.
Mr. Azar recommended CPC grant approval subject to precedent actions and grant a parking adjustment of six spaces "subject to developing 334 Carpenter Street consistent with their revised landscaping plan" and waive "the actual submission of the state permits of the preliminary plan stage." Id. at 92. He stated that "doesn't mean they do not have to submit those state permits[, ]" merely "they wouldn't have to do it until prior to final plan." Id. at 92-93. He asserted there is "enough that's in the record" to approve the project subject to those two conditions and five others for stormwater, landscaping plans, repairing or replacing the sidewalks, a permit from the Department of Public Works, and final plan approval by the Department of Planning and Development (DPD). Id. at 93-95. The CPC deliberated and approved the Preliminary Plan by a vote of four to one. Id. at 96-114.
Upon the CPC's Decision, Bergman filed an appeal to the Zoning Board of Appeals in Providence. The appeals hearing was duly noticed on April 24, 2018, and the hearing took place on May 9, 2018. At the hearing, Counsel More provided the Board with a sequence of events leading up to the appeal. ZBA Tr. 3-8, May 9, 2018.
Counsel for the Appellant followed by highlighting the main issue of the parking adjustment. He argued that the Planning Commission did not make any findings of fact to support the adjustment of parking spaces. Id. at 8. Also, he contended there was no traffic study or expert testimony to support the Board's findings. Id. at 9. It was suggested that using the parking apron for the auto repair shop at 334 Carpenter Street was actually not a legitimate use before the property was zoned to R-3. Id. at 9. Counsel reiterated, as argued in Appellant's Brief, that an R-3 use does not allow multifamily or commercial use and allowing the Applicant to have his residents from the subject property park in this zone would be illegal. Id. More also questioned whether allowing the parking would constitute an expansion of a non-conforming use. Id. at 10. Additionally, the issue of whether the authority to grant a parking adjustment rests with the Director of Inspection and Standards was raised before the Board at this hearing. Id. More suggested that Director Lykins would not have authority to override a prohibition of the ordinance. Id. at 12.
Moreover, reference was made to the additional issues raised in his memorandum submitted to the Board for review. The additional issues included the improper notice of the Preliminary Plan approval, the incompleteness of the application submitted to the CPC due to not filing all state approvals which are required for the Preliminary Plan approval, the amount of the impervious surface which exceeds the amount allowed on the 334 Carpenter Street lot, the lack of ability for Lemoi to be a party to the action because he is not the actual owner of the property, and the failure to submit a deed for ownership of both properties.
In response, Appellee's counsel stated that Director Lykins' signed approval - that 334 Carpenter street may be utilized for off-site parking for the subject property - is proper. Id. at 16. Appellee's counsel also explained that it is a common occurrence for one property to not have enough parking and that a lien would be placed on the other lot to allow those parking spaces to be utilized. Id. However, she suggested that "in no set of circumstances, does that mean you're using excess parking at this other location [334 Carpenter Street] and that then becomes mixed use commercial residential . . . The use doesn't transfer just by the lien for parking spaces." Id. at 17. In support of this point made before the Board, counsel mentioned the applicable language of the Ordinance, which provides:
"All required off-street vehicle parking spaces for residential uses and the residential component of mixed-use developments shall be located on the same lot or on a separate lot from the lot containing the use for which parking is required, if the Director of Inspection and Standards finds that the proposed location is within a reasonable distance of the use, the off-site parking conforms to this Ordinance, and the off-site parking is not required for another use." Zoning Ordinance §1404(a) (emphasis added).
Ms. Rocha suggested that the provision of the ordinance does not intend to impose, on the off-street parking location, the use/uses proposed at the subject property of the Application. Id. at 18.
In addition, Ms. Rocha made reference to other relevant issues as set forth in the memorandum and not argued before the Board at the hearing. Specifically, she highlighted that deficiencies on notice were waived because the Appellant participated in all of the hearings. Appellee also provided there was sufficient evidence to support the granting of a parking adjustment for the project and that to submit a traffic report or fiscal impact study was not required according to the Development Review Regulations § 605.
An attorney argued on behalf of the CPC that Director Lykins' letter was sufficient evidence for the Planning Commission to make their decision regarding the parking adjustment. Id. at 24. Also, the CPC filed a memorandum with the ZBA, which states that the Application itself was proper, notices for the Preliminary Plan stage were valid, CPC had authority to grant a six-space parking adjustment and waive state approvals, and that Traffic Impact and Fiscal impact study reports were not mandatory.
The ZBA deliberated on all issues raised and denied the Appellant's appeal. After considering the evidence before it and testimony presented, the ZBA reached a unanimous vote (5-0). In a seven-page decision, the ZBA addressed every argument Appellant made and explained how CPC did not err when it approved the project.
As to the issue with notice, the ZBA found that the original notice for the Preliminary Plan hearing on January 16, 2018 was sufficient for the continued hearing on February 20, 2018. See Decision at 5. The ZBA also found that Appellant's active participation and presence at the hearings, in addition to presenting expert testimony in support of his objections during the hearings, supports the Board's finding that the Appellant waived any claims of defective notice. Id.
Additionally, the ZBA found that the "CPC is authorized to grant a parking adjustment based on criteria set forth in R.I. Gen. Laws § 45-24-47" and "properly did so here." Id. at 5. (Emphasis in original.) Also, ZBA found "[t]he determination of whether off-site parking for a property is permissible rests with the Director under Ordinance Section 1404.A.1.a.," and "[t]he Director determined that the [16] parking spaces at 334 Carpenter Street could be used towards meeting the residential parking requirements [of 43 parking spaces] for 1292 Westminster Street." Id. at 5-6 (citing Director's February 13, 2018 letter). The ZBA upheld the CPC's Preliminary Plan approval of allowing 16 off-site parking spaces at 334 Carpenter Street in addition to the 22 on-site parking spaces at the subject property. In total, 38 parking spaces were created for the development project, and the ZBA upheld the CPC's decision to grant approval of Applicant's request for a parking adjustment of 5 spaces.
The ZBA did not find that off-site parking for the project on the Carpenter Street property converts its use "to a mixed use (not permitted in the R-3 Zone)" and "is aware of no such law." Id. at 6. The ZBA found further "Applicant was not required to provide the CPC with a traffic impact statement . . . and report" and noted such is only required by a CPC vote, and "[t]he CPC did not vote to require any impact statements." Id. ZBA concluded "Appellant has not met his burden of demonstrating prejudicial procedural error or clear error" and "[t]he weight of the evidence . . . supports the CPC's findings in granting Preliminary Plan Approval" and voted 5-0 to deny Bergman's appeal and upheld the decision of the CPC. Id.
Plaintiff timely filed his Complaint on June 26, 2018 and a Motion to Stay on August 14, 2018, accompanied by a Memorandum in Support which sought to halt construction during this litigation. On August 20, 2018, Appellee filed an Objection and incorporated Memorandum with fourteen Exhibits. The City filed an Objection, a Memorandum in Support, and one Exhibit. Subsequently, Appellee submitted the Lemoi Affidavit. On August 22, 2018, this Court heard and denied the Motion to Stay. The parties submitted memoranda, including a Sur Reply from Appellees on February 14, 2019 and a Sur-Sur Reply from Appellant on February 19, 2019. The matter is now before the Court for decision.
II
Standard of Review
Section 45-23-70 governs the standards of administrative appellate review regarding subdivisions of land within cities and towns, and § 45-23-71 governs appeals thereafter to Superior Court from decisions of a board of appeal. Section 45-23-70(a) provides:
"As established by this chapter, in instances of a board of appeal's review of a planning board or administrative officer's decision on matters subject to this chapter, the board of appeal shall not substitute its own judgment for that of the planning board or the administrative officer but must consider the issue upon the findings and record of the planning board or administrative officer. The board of appeal shall not reverse a decision of the planning board or administrative officer except on a finding of prejudicial procedural error, clear error, or lack of support by the weight of the evidence in the record." (Emphasis added.)
Subsection (c) of § 45-23-71 provides:
"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 prejudiced because of findings, inferences, conclusions or decisions which are:
"(1) In violation of constitutional, statutory, ordinance or planning board regulations provisions;
"(2) In excess of the authority granted to the planning board 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."
Pursuant to § 45-23-71, judicial review of planning board decisions is not de novo. Munroe v. Town of East Greenwich, 733 A.2d 703, 705 (R.I. 1999) (citing Kirby v. Planning Board of Review of Town of Middletown, 634 A.2d 285, 290 (R.I. 1993)). "The statute authorizes the Superior Court to review such decisions utilizing the traditional judicial review standard that is applied in administrative-agency actions." Id. "Therefore, the Superior Court does not consider the credibility of witnesses, weigh the evidence, or make its own findings of fact." Id. (citing Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986)). Rather, '"its review is confined to a search of the record to ascertain whether the board's decision rests upon 'competent evidence' or is affected by an error of law."' Id. (quoting Kirby, 634 A.2d at 290). The Superior Court's appellate authority to review a decision of a board of appeal, pursuant to § 45-23-71(b), is limited to "the record of the hearing before the planning board . . . ."
III
Analysis
In the present case, Appellant argues the June 13, 2018 denial of his appeal is erroneous because the Applicant did not satisfy, even with adjustments, the parking requirements of the City's Zoning Ordinance. Appellant further maintains the decision to grant a dimensional variance at the Carpenter Street lot does not comply with the Zoning Ordinance.
Mr. Lemoi and the City maintain the ZBA decision is amply supported by the evidence presented at the February 20, 2018 CPC Preliminary Plan hearing. The Applicant avers that ZBA properly reviewed the evidence of the February 20, 2018 CPC hearing and considered all issues Mr. Bergman asserts are reasons for the ZBA to reverse the CPC's decision to deny Preliminary Plan approval. Thus, the Applicant ultimately argues to uphold the ZBA's decision to grant Preliminary Plan approval.
A
Time-barred Appeal
First, Appellant contends that the ZBA found "Appellant's allegations of error at the Master Plan stage" were "time-barred" due to his failure to appeal to the ZBA within "20 days from Master Plan Approval[.]" Decision at 4. As noted above, Appellant attempted to "correct" such with civil action PC-2017-5408. Appellee moved for dismissal on January 15, 2018, which was granted, and an order entered on June 8, 2018.
According to the City of Providence's Development Review Regulations § 811.3(A), an appeal from any decision of the Commission or Administrative Officer may be taken to the Board of Appeals by an aggrieved party "within twenty (20) days after the decision has been recorded and posted in the office of the City Clerk." After review of the record in its entirety, it is sufficiently established that Appellant did not timely appeal his allegations of error at the Master Plan stage. Accordingly, the ZBA's determination was not affected by error of law.
B
Improper Signature
Next, the Board addressed Mr. Lemoi's signing the Land Development Application while the "real" owner of the subject property is 1290 Westminster, LLC and found that as principal of the LLC, Mr. Lemoi properly signed the Application on its behalf. Id. at 4. It is generally held that a principal member of a Limited Liability Company has the authority to act on behalf of the business entity. See G.L. 1956 § 7-16-14. Furthermore, the Rhode Island Limited-Liability Company Act specifically states that if management is vested to a member through an operating agreement, a member will have "the power and authority and is subject to all duties and liabilities of managers." Id. Given that Lemoi is an authorized member of 1290 Westminster, LLC, this Court finds that Lemoi properly signed the Application for the land development project on behalf of the limited liability company as prescribed in § 7-16-14, and the ZBA's finding was not affected by error of law.
C
Notice for the Off-Site Parking
Appellant contends that maintaining that the notice was inadequate does not prevent him from arguing that the parking on the Carpenter Street property constitutes an expansion of a nonconforming use. Appellant further contends that the CPC lacked jurisdiction to include the Carpenter Street property as part of the Project because it was not included on the agenda or in any notices required for the Project. Conversely, Appellee argues that Appellant has waived the arguments with respect to notices for the Preliminary Hearing.
Appellant contends the proposal of off-site parking at 334 Carpenter Street was not included on the agenda or in any of the notices required for the land development hearings; thus, Appellant maintains Appellee is in violation of § 805 of the Development Review Regulations. Appellant provides that the use of the Carpenter Street property was first discussed by Appellee's counsel before the CPC during the final continued Preliminary Plan hearing on February 20, 2018, after the Appellee had purchased the Carpenter Street property to use as parking for the subject property. Appellant further contends that the Preliminary Plan hearing, after having been continued from November 14, 2017 to February 20, 2018, should have been renoticed to mention the proposal of off-site parking at 334 Carpenter Street. However, Appellee and the City maintain that the Preliminary Plan notices were adequate per state law. See Zoning Ordinance art. 1800, § 1803 ("The body conducting the hearing or meeting for which notice is required may continue a public hearing or meeting. No new notice is required to reopen the public hearing or meeting if it is continued to a specific date, provided that a public announcement of the future date, time, and place of the continued hearing or meeting is made at the prior hearing or meeting and recorded in the minutes.").
The ZBA found Appellant's challenges to notice were "without merit." The ZBA found "R.I. Gen. Laws § 45-23-42 and Section 805(a) of the" applicable regulations "require that notice provide the date, time and place of a hearing or meeting; the street address of the subject property; a brief description of the . . . project; and if any waiver or modification is required, shall describe the waiver or modification," all of which were satisfied. Id. (internal quotation and punctuation omitted). Moreover, the ZBA noted Appellant "was present at each and every hearing on the Application from August 2017 through February 20, 2018" and thereby "waived any claims of defective notice." Id. at 5.
In the Rhode Island Land Development and Subdivision Review Enabling Act of 1992, the requirement to give notice for a public hearing is referenced in § 45-23-42. Chapter 23, Section 42 specifies that public notice of the hearing shall be given at least fourteen (14) days prior to the date of the hearing in the city or town's local newspaper and such notice shall include the street address of the subject property.
In the present case, adequate notice of the hearing is a jurisdictional prerequisite to a hearing on a land development project. See Quigley v. Town of Glocester, 520 A.2d 975, 977 (R.I. 1987). Any action taken by a zoning board which has not first satisfied the notice requirement is a nullity. Corporation Service, Inc. v. Zoning Board of Review of East Greenwich, 114 R.I. 178, 180, 330 A.2d 402, 404 (1975). Additionally, the purpose of notice is to "reasonably convey [ ] the required information" to "adequately afford [ ] those interested a reasonable time to make their appearance." See Carroll v. Zoning Board of Review of City of Providence, 204 R.I. 676, 679, 248 A.2d 321, 323-24 (1968). Accordingly, the ZBA's finding notice to be adequate was not in violation of constitutional or ordinance provisions.
The Appellee also argues that the Appellant does not have standing to take issue with the alleged lack of notice to the Carpenter Street abutters because the Appellant does not live within the notice area of the Carpenter Street property. Both the Appellant and Appellee agree that the Appellant lives within the radius to receive written notice for the subject property. Section 45-23-42(b). Notice is to be sent to the applicant and to each owner of land within in the "notice area." Id. The "notice area" is further determined by deferring to local regulations. The City of Providence local organizations define an abutter as "one whose property abuts, that is, adjoins at a border, boundary, or point with no intervening land." See City of Providence Zoning Ordinance, ch. 2014-39 No. 513, art. 2, § 201. The City's Development Review Regulations define the "Notice Area" as to all owners of real property whose property is located within two hundred (200) feet of the perimeter of the subject property. See Development Review Regulations, § 805(C)(1). Accordingly, as Appellant did not live within 200 feet of the Carpenter Street property, the ZBA found that Appellant was apprised of the parking extending to Carpenter Street through the continuance issued from the February 20, 2018 hearing. The ZBA's finding-that the challenges to notice were without merit - was not affected by error of law.
Furthermore, a party is deemed to waive his or her right to allege deficiencies of notices on appeal if an objection was not made prior to the appeal or if the aggrieved party participated in the prior proceedings. See Zeilstra v. Barrington Zoning Board of Review, 417 A.2d 303, 307 (R.I. 1980). In the context of notice for a Zoning Board of Review hearing, the court in Zeilstra found that the plaintiff actively participated in the proceedings before the Barrington Zoning Board of Review. Id. The Appellant's appearance and active participation was enough to establish that alleged deficiencies in notice were waived after not raising them at the hearing. Id.
D
Parking Adjustments
Appellant next asserts that the addition of parking at 334 Carpenter Street for the subject property would be an expansion/intensification of a nonconforming use. The City argues that the Appellant did not have standing to bring suit on the issue of parking on 334 Carpenter Street because Appellant does not live within the notice area and would not be considered an aggrieved party. Appellee contends that the additional parking does not constitute an expansion/intensification of a nonconforming use; rather, it maintains, that the additional parking is a permissible accessory use to the subject property.
Generally, judicial review of a zoning board's decision only may be brought by an aggrieved party. D'Almeida v. Sheldon Realty Co., 105 R.I. 317, 319, 252 A.2d 23, 24 (1969). Persons aggrieved are those who demonstrate that they will be adversely affected by the zoning decision granting the variance. Id. An aggrieved party is defined as "(i) Any person, or persons, or entity, or entities, who or that can demonstrate that his, her, or its property will be injured by a decision of any officer or agency responsible for administering the zoning ordinance of a city or town; or (ii) Anyone requiring notice pursuant to [the Zoning Enabling Act]." Section 45-24-31(4).
In its Decision, the ZBA did not directly address the issue of whether the Appellant is an aggrieved party. However, the record sufficiently establishes that Appellant lives within the notice area of 200 feet of the subject property and that 334 Carpenter Street, although not originally part of the Project, came to be an essential part of the Project after being included in the proposed parking adjustment. The Appellant has also demonstrated adverse effects of the zoning decisions including the impact of traffic. Accordingly, this Court finds that the evidence supports that Appellant does have standing to challenge the Project as an aggrieved party. See §45-24-31(4) (An aggrieved party is "[a]ny person . . . who [can] demonstrate that his, her, or its property will be injured by a decision of any officer or agency responsible for administering the zoning ordinance of a city or town"); see also Campbell v. Tiverton Zoning Board, 15 A.3d 1015, 1021 (R.I. 2011) (finding an aggrieved party to have standing by establishing adverse effects to property); Blackstone Valley Chamber of Commerce v. Public Utilities Commission, 452 A.2d 931, 933 (R.I. 1982) (an injury in fact is required to achieve standing).
With respect to the parking and request for parking adjustments, Appellant argues that the land development project at 1292 Westminster Street is not in compliance with § 45-23-60(a)(2) because the Applicant's proposed parking plan for the project-to have 16 of the 43 required parking spaces on 334 Carpenter Street, which is a legal non-conforming lot in an R-3 zone-is in violation of the provisions of the City of Providence Zoning Ordinance § 1401. Appellant argues that pursuant to Zoning Ordinance § 1401, the parking on 334 Carpenter Street must be for residential use. Appellant argues that the auto-repair shop on 334 Carpenter Street is a legal nonconforming use and that the business and the parking spaces are for a commercial use and not a residential use. Thus, Appellant maintains that the parking spaces on 334 Carpenter Street cannot be used for the residential use requirements of the mixed-use Project at 1292 Westminster Street.
In response, Appellee argues that the CPC's Decision was supported by substantial evidence on the record. Section 45-23-60(2) ("The proposed development is in compliance with the standards and provisions of the municipality's zoning ordinance."). Appellee further argues that the CPC had authority to grant the parking adjustment based upon Director Lykins' findings required by the Zoning Ordinance.
The applicable provision of the Zoning Ordinance that allows for off-site parking states:
"All required off-street vehicle parking spaces for residential uses and the residential component of mixed-use developments shall be located on the same lot or on a separate lot from the lot containing the use for which parking is required, if the Director of Inspection and Standards finds that the proposed location is within a reasonable distance of the use, the off-site parking conforms to this Ordinance, and the off-site parking is not required for another use. Shared parking in accordance with Section 1411 is permitted. When parking is not located on the same lot, the property owner(s) shall permit the Director of the Department of Inspection and Standards to file a lien with the Recorder of Deeds against both the lot containing the requiring parking and the lot for which the parking is being provided. The lien shall designate the use of the lot for off-street parking, and provide notice that insufficient parking exists on the original lot. The lien may be terminated by the Director of the Department of Inspection and Standards if it is no longer necessary for conformance." Zoning Ordinance § 1404(1)(a) (emphases added).
In the ZBA's review of the CPC's Decision, the ZBA found that the CPC properly held that Director Lykins acted within his authority, pursuant to Section 1404.A.1.a of the Zoning Ordinance, in determining that the off-site parking at 334 Carpenter Street was permitted to satisfy the parking adjustment at 1292 Westminster Street. The ZBA also held that the approval of the off-site parking by the Director of Inspection and Standards was proper and that there was no prejudicial error in granting the request of parking. (Decision at 5.)
According to Zoning Ordinance § 1404(1)(a), the Director of Inspection and Standards must find that the proposed location is within a reasonable distance of the development, conforms to the Zoning Ordinance, and is not required for another use before a separate lot may be used for off-site parking. In his letter to counsel for the Defendant, Mr. Lykins characterized his correspondence as a response to a "request for a compliance letter and parking layout review regarding proposed off-site parking at 334 Carpenter St. to serve the development at 1290 Westminster St." (Lykins Letter.). He observed that the "2, 250 square foot garage" on the Carpenter Street property "is used as an existing non-conforming Auto Repair Shop." Id. He then found that:
"1. The proposed layout and 7 spaces allocated to the Auto Repair Shop are in compliance.
"2. The remaining 16 spaces are not required for the on-site use.
"3. These 16 spaces are within 0.1 mile of the proposed 1290 Westminster St. (Plat 32, Lot 233) development." Id.
Mr. Lykins then determined "that the 16 parking spaces at 334 Carpenter St. may be used as part of the required parking count for 1290 Westminster St. with the filing of a lien against both properties per Zoning Ordinance Article 14, Section 1404.A.1.a[.]" Id. Notably, Mr. Lykins then included the following caveat: "this information is provided for guidance or clarification, and is not intended to be a binding decision subject to appeal. It is based solely on the written information provided by the requester." Id.
Appellee essentially contends that Director Lykins had the sole administrative authority to allow off-site parking under the Ordinance, and that when Appellant failed to appeal his determination, it then became binding upon the CPC and the ZBA. However, this contention ignores the clear language of the Lykins Letter, which specifically states that the off-site parking determination was "not intended to be a binding decision subject to appeal." (Lykins Letter.)
It is clear from the Lykins Letter that Director Lykins did not determine whether the use of a portion of the Carpenter Street property in an R-3 Zoning district as a parking lot for a mixed-use in a C-2 zone-when the Carpenter Street property already contains a nonconforming Auto Repair Shop-conforms to the Zoning Ordinance. Rather, he merely stated that the seven parking spaces allocated to the non-conforming auto-body shop portion of the property "are in compliance" with the Zoning Ordinance. Id. Notably, his compliance letter did not address the issue of whether the allowance of off-site parking spaces at 334 Carpenter Street for a mixed-use property at 1292 Westminster Street would conform to the Zoning Ordinance where the existing principal use at 334 Carpenter Street is nonconforming. Appellant contends that such permission would constitute an intensification or expansion of the existing legal nonconforming use and therefore, would not conform to the Zoning Ordinance.
In its decision, the CPC found that "[t]he applicant requires a total of 43 parking spaces. Twenty two spaces will be provided on site and additional parking will provided in an accessory parking lot at 334 Carpenter Street the 334 Carpenter Street," which site currently is being "used as an auto repair business . . . ." (CPC Decision at 2.) The CPC also found that Director Lykins "has reviewed the parking arrangement and found that the additional parking is within a reasonable distance of the development, conforms to the ordinance and that the parking is not required for another use." Id. at 3.
In upholding the CPC's Decision, the ZBA stated that "[t]he determination of whether off-site parking for a property is permissible rests with the Director under Ordinance Section 1404.A.1.a." (Decision at 5.) Citing to Director Lykins' Letter, the ZBA then found that Director Lykins "determined that the parking spaces at 334 Carpenter Street could be used towards meeting the residential parking requirements for 1292 Westminster Street[, ]" and it observed that "[n]o appeal was filed from the Director's determination." Id. at 6. Neither the CPC's Decision nor the ZBA Decision addressed whether the off-site parking portion of the 334 Carpenter Street property was in conformance with the Zoning Ordinance.
As noted above, Director Lykins specifically stated that his compliance letter was "not intended to be a binding decision subject to appeal." (Lykins Letter.) Consequently, any alleged failure to appeal the compliance letter is not pertinent to this Decision.
A "non-conforming use is a particular use of property that does not conform to the zoning restrictions applicable to that property but which use is protected because it existed lawfully before the effective date of the enactment of the zoning restrictions and has continued unabated since then." RICO Corp. v. Town of Exeter, 787 A.2d 1136, 1144 (R.I. 2001). Generally, "the right to continue a nonconforming use does not . . . include the right to expand or intensify that use." Town of Richmond v. Wawaloam Reservation, Inc., 850 A.2d 924, 934 (R.I. 2004). The Zoning Enabling Act of 1991 provides that "[a] zoning ordinance may permit a nonconforming development to be altered" by either a special-use permit, or by right. See § 45-24-40(a)(1)(2); see generally Wawaloam Reservation, 850 A.2d at 928. However, if a zoning ordinance does not affirmatively permit changes to nonconforming uses, then the uses cannot be changed. Id. at 935.
The City of Providence Zoning Ordinance addresses the issue of intensification of a nonconforming use. It clearly and unambiguously states that a "nonconforming use of a structure or land cannot be intensified in any manner. Intensification includes, but is not limited to, . . . increasing the number of parking spaces." Zoning Ordinance 2001(C). It is undisputed that the auto body repair shop at 334 Carpenter Street is located in an R-3 residential zoning district. The issue is whether the addition of parking on the Carpenter Street property that is intended for use by the subject property necessarily will expand and intensify the existing nonconforming use in violation of the Zoning Ordinance.
The Appellee distinguishes between a principal use and an accessory use. It maintains that the principal use-the auto body repair shop-is the sole non-conforming use, and thus, the off-site parking on 334 Carpenter Street does not constitute an expansion of the existing non-conforming use. Conversely, Appellant maintains that the off-site parking is an accessory use to the principal use and that, as such, constitutes an impermissible expansion or intensification of the existing non-conforming use.
The term "use" is defined in the Zoning Ordinance as "[t]he purpose or activity for which the land or structure is designed, arranged, or intended, or for which it is occupied or maintained." Zoning Ordinance § 201. A "principal use" is defined as "[t]he main use of land or structures as distinguished from an accessory use[, ]" while an accessory use is defined as "[a] use of land or of a building, or portion thereof, customarily incidental and subordinate to the principal use of the land or building. An accessory use may be restricted to the same lot as the principal use. An accessory use is prohibited without the principal use to which it is related." Id.
The ZBA found that the Ordinance does not prohibit parking for the residential use at 334 Carpenter Street because the parking at 334 Carpenter is, in fact, in a residential zone. However, this Court finds that the nonconforming auto body repair shop is the principal use on the Carpenter Street property. As such, the proposed parking on that property would constitute an accessory or "related" use to the nonconforming auto body repair shop. See Hein v. Town of Foster Zoning Board of Review, 632 A.2d 643, 645 (R.I. 1993) (noting a parking lot to a drug store as an example of accessory use); see also Zoning Ordinance § 201 ("An accessory use is prohibited without the principal use to which it is related.").
Considering that the ZBA upheld the CPC's finding that the auto body repair shop only requires seven parking spaces to be in conformance with the Zoning Ordinance, the Court finds that the proposed additional parking necessarily would constitute an impermissible expansion or intensification of the existing nonconforming use. Compare with Cohen v. Duncan, 970 A.2d 550, 566 (R.I. 2009) (holding that where area previously had been used for "overflow" and "commercial" parking, its proposed use for private parking "retained the same purpose and character as a parking area, and thus . . . remained a protected use"). Section 1404(1)(a) of the Zoning Ordinance specifically requires the Director of the Department of Inspection and Standards to find that any proposed off-site parking conforms to the Ordinance. (Zoning Ordinance § 1404(1)(a). Here, Director Lykins did not, and could not, do so because the proposed parking at 334 Carpenter Street does not conform to the Zoning Ordinance. In its decision, the CPC erroneously stated that Director Lykins had found that the additional parking conformed to the Zoning Ordinance. He never made such a finding, and both the CPC and the ZBA failed to address this defect contained in the Director's compliance letter.
In finding that the proposed parking on the 334 Carpenter Street property would be an impermissible expansion of the existing non-conforming use, the Court impliedly rejects Appellee's contention that the proposed parking constitutes a permissible accessory use of the subject property. The Zoning Ordinance permits only one principal use per property. See Zoning Ordinance § 201 (defining principal use as "[t]he main use of land or structures as distinguished from an accessory use). Here, the principal use of the Carpenter Street property is an auto body repair shop. If, as Appellee contends, the off-site parking on the Carpenter Street property is not an accessory to that principal non-conforming use, then it would constitute an impermissible second principal use of the same property. See id. Either way, the proposed parking would not conform to the Zoning Ordinance.
IV
Conclusion
After review of the entire record, the Court finds that the Appeal from the Decision of the CPC granting Preliminary Plan approval for a major land development project is not based upon reliable, substantial, and probative evidence. Further, this Court concludes that the ZBA's Decision to permit the parking adjustment and allow parking at 334 Carpenter Street constitutes an impermissible intensification of a non-conforming use in violation of the City of Providence's Zoning Ordinance and was thus in excess of its statutory authority; affected by error of law; clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or arbitrary and capricious, and characterized by abuse of discretion. Substantial rights of the Appellant have been prejudiced. Accordingly, the ZBA's Decision is hereby reversed.
Counsel will submit an appropriate judgment for entry.