Opinion
C. A. PC-2022-06617
02-26-2024
ROBERT CLARK, MARY CASALE, and FILI INVESTMENTS LLC, Appellants v. THE ZONING BOARD OF REVIEW OF THE CITY OF PROVIDENCE, JAMES LOMBARDI, III, in his Capacity as Treasurer of the City of Providence, and POWER 250, LLC Appellees.
For Plaintiff: Nicholas J. Hemond, Esq. For Defendant: Lauren E. Jones, Esq. Megan K. DiSanto, Esq.
For Plaintiff: Nicholas J. Hemond, Esq.
For Defendant: Lauren E. Jones, Esq. Megan K. DiSanto, Esq.
DECISION
LANPHEAR J.
Before this Court for decision is Appellants Robert Clark (Clark), Mary Casale (Casale), and Fili Investments LLC's (Fili) (collectively Appellants) appeal from a November 21, 2022, decision of Appellee Providence Zoning Board of Review (the Board), sitting as the Board of Appeal. The Board affirmed the City Plan Commission's (CPC) decision to approve Appellee Power 250 LLC's (Applicant) preliminary plan for a minor land development plan. (Certified Record of Providence Zoning Board of Review (R.) CR-001-014 (Providence Zoning Board of Appeal Resolution No. 2022-22A (Board Resolution)).) Jurisdiction is pursuant to G.L. 1956 § 45-23-71.
Fili's principal place of business is 225 Waterman Street, Providence, Rhode Island; Clark owns property at 168 Gano Street, Providence, Rhode Island; and Casale owns property at 246 Power Street, Providence, Rhode Island. (Board Resolution, 1.) Clark and Casale are 200-foot abutters of 153-165 Gano Street, Providence, Rhode Island (the Property). Id. at 3.
I Facts and Travel
On February 23, 2022, Applicant filed an application for a minor land development plan with the CPC to construct four new multifamily apartment buildings totaling 133 living units and 68 parking spaces (the Project) across its properties on Gano Street in Providence, Rhode Island (Assessor's Plat 14, Lots 601, 602, 603, 604) (the Property) as follows: 153 Gano Street, twenty-eight apartments and thirteen parking spaces, five stories (fifty-three feet) tall; 157 Gano Street, thirty-five apartments and seventeen parking spaces, five stories (fifty-seven feet) tall; 161 Gano Street, thirty-five apartments and seventeen parking spaces, five stories (fifty-four feet) tall; and 165 Gano Street, thirty-five apartments and twenty-one parking spaces, five stories (fifty-three feet) tall. See Board Resolution 1-3. Unit parking was proposed to be internal, structured parking under each building. Id. at 9; see also R. CR-168-77 (City Plan Commission Decision (CPC decision), 2).
The CPC decision granting preliminary plan approval, as well as the Board Resolution, contained an error, listing 157 Gano Street as providing thirty-four living units. See CPC decision, 1; see also Board Resolution, 3. This was changed by the Applicant to thirty-five living units during the application process. Compare R. CR-283-312 (Development Narrative (May 16, 2022), 2) with R. CR-314-47 (Development Narrative (June 15, 2022), 2). Regardless, the correct number of living units is 133, which was accurately reflected in both the CPC decision and the Board Resolution. See CPC decision, 1; see also Board Resolution, 3.
Because the Property was located in a C-2, General Commercial Zoning District, and sought to develop multifamily housing, the Project was permitted by right. See CPC decision, 1; see also Providence Zoning Ordinance (Ordinance) § 1201, Table 12-1. In a C-2 zone, the allowable height of a building is not to exceed fifty feet; thus, Applicant sought a dimensional adjustment from Ordinance § 1904(E)(2). See CPC decision, 2; see also Ordinance §§ 502(A), Table 5-1 and 1904(E)(2). As each lot was less than 10,000 square feet, Applicant was exempt from providing parking. See CPC decision, 2; see also Ordinance § 1410(B)(7).
The CPC considered the preliminary plan for the Project on June 28, 2022. (CPC decision, 1.) At the hearing, Applicant produced a staff report from the Department of Planning and Development and a letter from the city's traffic engineer and presented the testimony of its project engineer, Joe Casale, architect, Mark Rapp, and traffic engineer, Herman Peralta. See Board Resolution, 3. Fili raised an objection during public comment; but, because the Project was classified as a minor land development plan, and no notice was required to be sent nor was sent to 200-foot abutters, Clark and Casale did not receive formal notice and did not attend the hearing. See § 45-23-38; see also Board Resolution, 1, 3. The CPC granted the dimensional height adjustment, finding the Project eligible due to the structured parking, and approved the preliminary plan with conditions, which are immaterial to the issues on appeal. See CPC decision, 3, 4.
Appellants appealed the CPC's decision to the Board on August 4, 2022. (Board Resolution at 2.) Appellants asserted, among other things, that the CPC erred in granting dimensional height adjustments on the basis of structured parking, and the adjustments were actually modifications which required the minor plan to be reclassified as a major plan requiring notice to abutters prior to the hearing. Id. at 4-5, 9. The Applicant and the CPC countered that the CPC has the authority to grant dimensional adjustments and such adjustments are not modifications requiring reclassification. Id. at 5. They added that Appellants lacked standing to appeal. Id.
The Board held a hearing on September 28, 2022 and issued its decision on October 31, 2022. Id. at 1. The Board unanimously denied the appeal and affirmed the CPC's decision. Id. at 3. The Board found that Appellants lacked standing because this was a minor plan not requiring notice and that Appellants only provided generalized grievances regarding traffic and parking to advance that their property would be injured. Id. at 6. The Board found that Ordinance § 1904(E)(1)(h) authorized the CPC to make adjustments to the dimensional height requirement where structured parking was provided, and Applicant proposed such parking. Id. at 9. It added that the adjustment was from the Ordinance and not the statutory requirements or the Providence Development Review Regulations (Regulations), and thus, did not constitute a modification requiring reclassification. Id. at 10.
The Board further opined that, regardless of whether this was classified as a major plan, Fili would not have standing because it does not own property within 200 feet of the Property. (Board Resolution, 6.)
The Appellants appealed the Board's decision to this Court on two grounds: that the Board erred in finding that (1) Appellants lacked standing and (2) the adjustments were not modifications necessitating reclassification to a major plan requiring notice. See Appellants' Mem. in Supp. of Appeal (Appellants' Mem.), 1.
II Standard of Review
The Superior Court's review of a decision of a zoning board of review, sitting as a board of appeals, is governed by § 45-23-71(d), which 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 that 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." Section 45-23-71(d).
When reviewing an appeal from a decision of a board of appeal, the Court is required "to conduct its review of the proceedings before a municipality's planning board or planning commission-not the board of appeals-in determining whether the decision of the planning board is supported by competent or substantial evidence." Beaven v. North Kingstown Planning Commission, No. WC-2004-0545, 2008 WL 4376195, at *7 (R.I. Super. Sept. 17, 2008). "'Substantial evidence . . . means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less than a preponderance."' Lischio v. Zoning Board of Review of Town of North Kingstown, 818 A.2d 685, 690 n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646, 647 (R.I. 1981)). "Competent evidence is functionally equivalent to the term 'substantial evidence.'" Beaven, 2008 WL 4376195, at *7 (quoting Town of Burrillville v. R.I. State Labor Relations Board, 921 A.2d 113, 118 (R.I. 2007)).
In reviewing an appeal from a board of appeal's decision, the Superior Court "'does not consider the credibility of witnesses, weigh the evidence, or make its own findings of fact.'" Cocci v. Town of South Kingstown, No. WC-2010-0604, 2017 WL 244852, at *4 (R.I. Super. Jan. 13, 2017) (quoting Munroe v. Town of East Greenwich, 733 A.2d 703, 705 (R.I. 1999)) "[A]s this Court's review of the board of appeal's decision is highly circumscribed," it "may not substitute its judgment for that of the board of appeals if it 'can conscientiously find that the board's decision was supported by substantial evidence in the whole record.'" Beaven, 2008 WL 4376195, at *7 (quoting Mill Realty Associates v. Crowe, 841 A.2d 668, 672 (R.I. 2004)).
"[T]he same rules of construction that [courts] apply when interpreting statutes" are applied when interpreting an Ordinance. Ruggiero v. City of Providence, 893 A.2d 235, 237 (R.I. 2006). "When the language of a statute [or ordinance] is clear and unambiguous, this Court must interpret the statute literally and must give the words . . . their plain and ordinary meanings." Zanni v. Town of Johnston, 224 A.3d 461, 464 (R.I. 2020) (internal quotation omitted). However, "when the provisions . . . are unclear or subject to more than one reasonable interpretation, the construction given by the [Board], charged with its enforcement is entitled to weight and deference, as long as that construction is not clearly erroneous or unauthorized . . . even when other reasonable constructions of the statute are possible." West v. McDonald, 18 A.3d 526, 532 (R.I. 2011) (internal quotation omitted).
III Analysis
A threshold issue is whether Appellants have standing. For a party to have standing to appeal a zoning decision to the Superior Court, they must be an "aggrieved party." G.L. 1956 § 45-24-69. Section 45-24-31(5) defines an "aggrieved party" 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 this chapter." Section 45-24-31(5).
"One who seeks review has the burden of setting the judicial machinery in motion by establishing that he is aggrieved and has a right to redress[.]" Blackstone Valley Chamber of Commerce v. Public Utility Commission, 452 A.2d 931, 934 (R.I. 1982). Appellants assert that they have standing because (1) they would have required notice had the Project been properly classified as a major plan, and (2) their property will be injured. See Appellants' Mem. 1-2. Conversely, the Board and Applicant argue that Appellants cannot demonstrate that they "will be injured," and that they did not require notice of a minor plan. See § 45-24-31(5)(i); see also Power 250's Mem. in Opp'n to Appeal (Applicant's Mem.), 18, 30; Zoning Board of Review's Mem. in Opp'n to Appeal (Board's Mem.), 10-14, 22.
A Notice Under § 45-24-31(5)(ii)
The question of whether notice was required hinges on a determination of the merits of the appeal. Thus, the Court will first consider whether the height adjustment granted by the CPC required reclassification of the project as a "major land development plan" triggering notice requirements.
The Rhode Island Land Development and Subdivision Review Enabling Act of 1992 (Development Review Act) defines a minor land development plan as "[a] development plan for a residential project as defined in local regulations, provided that the development does not require waivers or modifications as specified in this act. All nonresidential land development projects are considered major land development plans." Section 45-23-32(24) (emphasis added); see also Regulation Art. 10 (defining minor land development plan as one which "does not require waivers or modification as specified in these regulations." (emphasis added)). Major land development plans are defined as "[a]ny land development plan not classified as a minor land development plan." Section 45-23-32(21). Major plans require notice to abutters prior to a hearing, whereas minor plans do not. Compare § 45-23-38 (omitting notice requirements for minor plans) with § 45-23-42(b) (delineating notice requirements for major plans) and Regulations § 805(C)(1) (requiring notice to owners of property within 200 feet of a proposed major plan).
The Development Review Act authorizes municipalities to adopt land development and subdivision review regulations as well as the ability to establish standard review procedures for local land development and subdivision review. See G.L. 1956 § 45-23-25.
In reviewing a decision by a local board, this Court must apply the law "[as it existed] when the applicant-developer submitted its application . . ." absent a clear expression of retroactive application. East Bay Community Development Corporation v. Zoning Board of Review of the Town of Barrington, 901 A.2d 1136, 1144 (R.I. 2006). Thus, although the current definition of minor land development project is located in § 45-23-32(19)(i), the definition as it was in February of 2022 is applicable. See id.
The updated version of the Regulations became effective on January 1, 2024 and provides the definitions of minor land development project and major land development project separately in Article 10. See Regulations Art. 10.
Major land development project is currently defined in § 45-23-32(ii). But the statutory definition as it was in February of 2022, when the Applicant filed its application, is applicable here. See East Bay Community Development Corporation, 901 A.2d at 1144.
Section 45-24-47(b) of the Rhode Island Zoning Enabling Act of 1991 (Zoning Enabling Act) provides the planning board or commission the ability to allow zoning incentives, or adjustments to the zoning ordinances, within a land development project, "provided, that standards for the adjustments are described in the zoning ordinance . . ." See G.L. 1956 § 45-24-47(b). Pursuant to Ordinance § 1904(E)(1)(h), the CPC is authorized "to make adjustments to certain dimensional and design standards . . . [w]here structured parking is provided." Section 1904(E)(1)(h). In a non-residential zone, this section allows the CPC to grant an adjustment of twenty-four feet, or two stories. See § 1904(E)(2).
Appellants contend that the height adjustment constituted a modification within the meaning of § 45-23-32(24), thus transforming the project into a major plan. (Appellants' Mem. in Reply to Appellees' Obj. (Appellants' Reply), 2-3.) Appellants argue that the Zoning Enabling Act, the Development Review Act, and Regulations, when considered in conjunction, suggest the term "adjustment" and "modification" are interchangeable. (Appellants' Reply 2, 4.) However, the Court need not look beyond the plain language of § 45-23-38 and the Regulations. Regardless of the definition of "modification" in the statutory and regulatory schemes, the Development Review Act and the Regulations specify that a minor plan becomes a major plan if it requires a modification "as specified in the Act," § 45-23-38, or "regulation," Regulations Art. 10, respectively. Thus, if the modification is not required or specified in the Development Review Act or the Regulations, then the project need not be reclassified from minor to major.
Ordinance § 1904 never uses the term "modification," but instead allows the commission to make "adjustments" without restarting the application or providing additional notice. Ordinance § 1904(D) does not require additional notice while § 1904(E) appears to allow the commission to make significant but limited "adjustments" during its review process.
The Court finds persuasive the reasoning in Providence Preservation Society v. Greenfield, No. PC-2020-04495, 2021 WL 3781836 (R.I. Super. Aug. 18, 2021). There, the applicant applied to the CPC for a design waiver from a city ordinance for a minor plan, which the CPC granted. Id. at *1, *4. Neighboring property owners appealed to the Board, and subsequently to the Superior Court, on the ground that the application for a design waiver transformed the project into a major plan. Id. at *4, *8. The Court concluded that appellants had no standing because the applicant was seeking a design waiver from the ordinance, not from a statutory requirement or from the Regulations. Id. at *12-14. Thus, a waiver made pursuant to an ordinance is not considered a "waiver or modification as specified" in the act or regulation and does not automatically create the reclassification of a minor plan into a major plan. Id.
Here, Applicant sought a dimensional adjustment for building height from Ordinance § 1904(E). See Ordinance § 502(A), Table 5-1; see also Ordinance § 1904(E). Applicant sought approval of an additional three feet, three feet, four feet, and seven feet, respectively, in recognition of providing the structured parking. See Board Resolution 9; see also R. CR-450 (Providence City Plan Commission Report, 3 (June 28, 2022)); R. CR-494-96 (Providence City Plan Commission, Minor Land Development Project Preliminary Plan Hearing, Fili Objection, 3-5 (June 28, 2022)). As the CPC is authorized to make such adjustment pursuant to § 1904(E) of the Ordinance, the adjustment was not pursuant to the Development Review Act nor the Regulations; it was solely a dimensional adjustment pursuant to Ordinance § 1904(E). Because the Development Review Act and the Regulations expressly limit the reclassification of development plans from minor to major based on whether the plan "requires waivers or modifications as specified in this act [or regulation]," the adjustment made here, solely pursuant to the Ordinance, cannot trigger the reclassification. Further, the Applicant also was not required to provide parking under Ordinance § 1410(B)(7) as the Property is located in a C-2 zone and each lot is less than 10,000 square feet. See Ordinance § 1410(B)(7). Thus, the adjustment was not required, but was a discretionary incentive. See §§ 45-24-31, 45-24-47. Therefore, the application remained a minor plan in spite of the dimensional adjustment, and no notice was required. Accordingly, Appellants are not aggrieved parties pursuant to § 45-24-31(4)(ii).
Because Appellants were not required notice, the Court need not delve into the question of whether the failure to receive such notice violated their due process rights. See Appellants' Mem. 10-11.
B Injury Under § 45-24-31(4)(i)
Appellants also do not have standing based on injury. (Appellants' Mem. 6-12.) Our Supreme Court has held that an increase in traffic alone is not enough to support injury in fact. Toohey v. Kilday, 415 A.2d 732, 737 (R.I. 1980). Further, generalized grievances affecting the community at large, such as parking and traffic difficulties, do not support a finding that the party was aggrieved. See Watson v. Fox, 44 A.3d 130, 136 (R.I. 2012); see also Bow en v. Mollis, 945 A.2d 314, 317 (R.I. 2008).
Appellants rely on Flynn v. Zoning Board of Review of City of Pawtucket, 77 R.I. 118, 73 A.2d 808 (1950) to argue that they are "naturally" aggrieved due to their proximity to the Project. See Appellants' Mem. 12. However, such reliance is misguided, as Flynn was decided before the Zoning Enabling Act and ordinances defined an aggrieved party and thus "is no longer applicable to zoning board appeals." N&M Properties, LLC v. The Town of West Warwick, No. KC 06-0894, 2007 WL 1234482 (R.I. Super. Apr. 19, 2007).
IV CONCLUSION
For the reasons stated herein, the Court affirms the decision of the Board. Counsel shall submit an appropriate order for entry.