Opinion
C. A. PC-2020-02088
09-30-2020
WHITE COLUMNS PROPERTIES, INC. Appellant, 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 PROVIDENCE CHESTNUT I, LLC, Appellees.
For Plaintiff Nicholas J. Hemond, Esq. For Defendant Lisa Dinerman, Esq.; Sharon Garner, Esq.; Stephen A. Izzi, Esq.
For Plaintiff Nicholas J. Hemond, Esq.
For Defendant Lisa Dinerman, Esq.; Sharon Garner, Esq.; Stephen A. Izzi, Esq.
DECISION
VOGEL, J.
White Columns Properties, Inc. (White Columns) brings this appeal from a February 11, 2020 decision of the Providence Zoning Board of Appeals (the Board) upholding the Downtown Design Review Committee's (DDRC) December 5, 2019 approval of an application submitted by Providence Chestnut I, LLC (PCI). PCI is a foreign limited liability company that owns real property located at Plat 21, Lots 85 and 86 with an address of 151-155 Chestnut Street, Providence, Rhode Island, located in Zoning District D-1100. (the Subject Property). The Board upheld the DDRC's decision to grant PCI conceptual design approval, including setback and transparency waivers, two demolition waivers and a development incentive in the form of a thirty percent (30%) height bonus. Specifically, White Columns seeks judicial review of the Board's Decision (Decision) alleging that the DDRC committed prejudicial procedural errors in its voting process, failed to make requisite findings under § 1907 of the Zoning Ordinance of the City of Providence (Ordinance), and granted a height bonus in violation of the Ordinance. This Court exercises jurisdiction over this matter pursuant to G.L. 1956 § 45-24-69 and § 45-24-69.1. For the reasons set forth herein, the Court grants the appeal in part and denies it in part.
I
Facts & Travel
White Columns is a Rhode Island corporation and owner of real property located at 14 Bassett/29 Elbow Street, Providence, Rhode Island and 137 Chestnut Street, Providence, Rhode Island. Compl. ¶ 1. Of significance, both properties owned by White Columns are immediate abutters to and within 200 feet of the Subject Property. See Application for Certificate of Design Approval or Waiver (Application), Sept. 16, 2019. On September 9, 2019, representatives of PCI attended a regularly scheduled DDRC meeting for the purpose of obtaining a pre-application review of its proposed project for a mixed-use facility on the Subject Property (project). Decision at 3, ¶ 1. At that hearing, PCI provided the DDRC with information about the planned project, id., and received positive feedback on the proposal which PCI incorporated into its subsequent application. See DDRC Tr. 4:19-24, Oct. 7, 2019; See also Letter from Christopher Ise (Principal Planner/DDRC Staff) to Michael Corso of PCI, Sept. 25, 2019.
On September 16, 2019, PCI filed its Application seeking demolition of two structures in the D-1-100 (D-1) Downtown District, a development incentive in the form of a height bonus, waivers from two design requirements-setback and transparency-and conceptual design approval for the project. The project consists of a twelve-story, mixed-use development at 151-155 Chestnut Street including a grocery store, 148 residential units on the upper floors (2-12), a residential lobby, a loading dock, and other commercial space. See the DDRC Meeting Minutes, Oct. 7, 2019. The Application proposed a structure of approximately 122, 000 square feet with a building height of 127 feet. Id.; See also DDRC Tr. 12:18-21, Oct. 7, 2019. That height would exceed the allowable height of 100 feet. Id. at 43:17-19.
The DDRC deemed the Application complete, and DDRC staff prepared a report detailing the project's compliance with the requirements necessary to grant the Application. See Staff Report, Oct. 7, 2019 (Staff Report). The DDRC held a duly noticed public hearing on October 7, 2019. Decision at 3, ¶ 3. DDRC members Schoettle, Marsella, Rivera and Hampton attended the meeting. See DDRC Meeting Minutes, Oct. 7, 2019. DDRC members Gelnett and Chille were absent. Id. At the hearing, PCI presented expert testimony from Randolph Gerner (Gerner)-the project's architect. (DDRC Tr. 3:3-72:15, Oct. 7, 2019.) Gerner testified that this project, if approved, likely would be the first fully modular building constructed in Providence. Id. at 6:5-7. Further, he suggested that once the podium-or base-portion of the building is complete, the remainder of the building likely could be built in eight to twelve weeks. Id. at 7:4-9. He testified that on the lower level of the project, PCI will construct the foundation walls five feet six inches (5'6") away from the property line which would lessen the impact on the two adjacent properties. Id. at 11:2-9. He noted that PCI was seeking two waivers: one for a recess line requirement and the other for the ground floor transparency requirement on the Elbow Street elevation. Id. at 12:21-13:23.
According to the applicable section of the Ordinance, § 606(A), developments taller than six stories in a D-1 zone must have a recess line above the seventh floor. However, Gerner stated that the project will be "much more productive if we create it in a way where the recess line is - we're given relief from the recess line[.]" (DDRC Tr. 12:24-13:2, Oct. 7, 2019.)
The Ordinance includes as a "minimum standard for all new construction" that "[o]n both A and B Street facades, buildings over six stories shall have a recess line of at least ten feet above the third story and below the seventh story. The recess line should relate to the form of any buildings adjacent to or across the street from the building. The Downtown Design Review Committee may grant a waiver to allow a building in excess of six stories not to have a recess line if it is determined that the building can exist compatibly with neighboring buildings." Ordinance § 606.A.4.
With respect to the ground floor transparency requirement, the pertinent provision of the Ordinance states that "[a]ll building facades shall provide areas of transparency equal to at least 70% of the wall area, between the height of one and 12 feet from the ground, of each building façade." Ordinance § 606.E.1. However, the DDRC may waive this provision. Id. Gerner testified that "because of the requirements of a loading dock and a transformer bay, that only leaves us with approximately 60 plus percent of transparency." (DDRC Tr. 13:6-9, Oct. 7, 2019.) Additionally, he stated that the plan places all transparency on the corner of Elbow Street and Chestnut Street which meets the intent of the requirement for 70 percent glazed area. Id. at 13:9-13. He explained that "the dimension along Elbow Street is not long enough . . . to meet that 70 percent requirement." Id. at 13:13-15. Gerner additionally testified that the two existing buildings that sit on the site will need to be demolished. Id. at 13:16-18.
The properties PCI seeks demolition waivers for are 151 and 155 Chestnut Street. Importantly, the National Historic Preservation Commission found the property at 155 Chestnut Street to be historically significant. Records of the Providence Historic Commission.
In terms of the character of the area, Gerner noted that the building will be constructed with red painted aluminum, black honed granite, frozen titanium and glass floor balconies. Id. at 14:3-15:16. In particular, he noted that PCI chose high-end materials to celebrate the characteristics of the area. Id. at 15:1-9. Gerner acknowledged that the abutting property at 137 Chestnut Street (White Columns' property) known as Doyle House has historic significance. Id. at 15:16-16:5. He explained that PCI chose to create a minimalist modern background to frame Doyle House, highlighting its location and making it more prominent than it is currently. Id.
Next, the DDRC heard testimony from Warren Purvis (Purvis), principal of White Columns. Id. at 30:10-12; See also (Board Tr. 9:8-11, Jan. 16, 2020.) Purvis owns property at 29 Elbow Street as his primary residence as well as Doyle House-137 Chestnut Street. See id.; See also (DDRC Tr. 33:3-5, Oct. 7, 2019.) Purvis testified that the height of the proposed plan will dwarf his two immediately adjacent properties and thus impact his enjoyment of his land. (DDRC Tr. 31:22-32:3, Oct. 7, 2019.)
White Columns then presented the testimony from two witnesses: Peter Casale (Casale), an expert on the Comprehensive Plan of the City of Providence and John Shevlin (Shevlin), a traffic engineer at Pare Corporation.
Casale testified that the proposed building, standing at 127 feet, would be inconsistent with the Comprehensive Plan. Id. at 95:1-5. Specifically, he noted that an additional 27 feet would result in an even greater detrimental impact on the surrounding area than would an allowable 100-foot high building. Id. at 94:22-95:4.
Shevlin noted that a development "with 131 units, based on manuals that show trip generations for other types of similar uses, it could be a significant traffic generator[.]" Id. at 82:3-6. In particular, Shevlin expressed concern about the loading dock. Id. at 82:12-14. He noted that "Elbow Street is 16 feet wide. You have a 12-foot wide curb cut, so we similarly had concerns as far as traffic . . . coming in and out of there with the trucks, as far as making deliveries or picking up any kind of waste in that area[.]" Id. at 82:16-21.
Following the conclusion of testimony on October 7, 2019, Schoettle, who chaired the meeting, requested that PCI submit additional information on the project's impact on historic buildings. Id. at 98:16-21. Specifically, Schoettle requested the following information: 1) representative drawings showing the proposed building and the adjacent historic buildings in a streetscape view to show how the building would relate to the others on the block; 2) a site plan showing the proposed building in relation to adjacent properties; 3) a traffic study relative to the proposed loading dock on Elbow Street, including a plan showing the turning radius for vehicles accessing the loading dock; 4) further information regarding the waiver request for the recess line requirement relative to the two adjacent historic buildings, and the overall height of the building for relief from the street; and 5) a study of shade and shadow cast by the proposed structure. See DDRC Meeting Minutes, Oct. 7, 2019. The DDRC continued the public hearing to November 4, 2019. (DDRC Tr. 104:22-24, Oct. 7, 2019.)
The Court notes that Kristi Gelnett signed the Resolution dated November 14, 2019 and the Amended Resolution dated December 5, 2019 as "Chair."
DDRC members Gelnett, Schoettle, Marsella, Chille, and Hampton attended the November 4, 2019 meeting. See Original Resolution. Five expert witnesses appeared on PCI's behalf to respond to the requested information. They included: Gerner; Peter LaPolla (LaPolla), a professional urban planner; Cindy Hamilton (Hamilton), an expert in historic preservation; Robert Clinton (Clinton), an expert in traffic engineering; and Russ Morgan, described as being associated with "GZA" and prepared to testify about site conditions. (DDRC Tr. 2:19-3:9, Nov. 4, 2019.) Gerner testified that one of the project's goals is "to help Providence achieve its development goal by bringing in a new tax base with a mixed-use project that publicly encourages public participation at the ground level[.]" Id. at 8:8-12.
Hamilton testified that the "juxtapositioning [sic] of building types . . . is what gives . . . cities great diversity." Id. at 20:6-8. Further, she stated that Providence captures a wide range of styles in the Jewelry District-where the project would be built-construction in the area ranged from property built from roughly 1825 to the mid-20th century. Id. at 20:14-19. Hamilton testified that "just about every major style in this country is represented in that period of time, so it provides a significant opportunity for interesting new construction to play off of the existing fabric and the existing styles." Id. at 20:19-24. Hamilton further opined that demolition of the buildings at 151-155 Chestnut Street was warranted for the project to be constructed. Id. at 21:13-21.
LaPolla testified how the character of the area conforms to the goals of the Comprehensive Plan, and concluded by stating:
"[T]he objective [of the Comprehensive Plan] lays out goals that the city should take and then lays out strategies that the city should take, in terms of how it attains those goals, and it talks about design strategies and innovation strategies, that gets translated through the regulatory processes of your zoning ordinance, and your zoning ordinance talks about [it], which is a direct outgrowth or an outgrowth of those goals for the D-1 Overlay District, and to the extent that this conforms to the D-1 Overlay District, and to the extent that the D-1 Overlay District represents the implementation of those goals and policies, this is consistent with the comp[rehensive] plan." Id. at 26:14-27:4.
LaPolla also noted that the project is consistent with the Comprehensive Plan's goals to increase housing and innovative green structures within the city. Id. at 27:8-17. LaPolla testified that although a building must be publicly accessible to qualify for a height waiver, it does not have to be free to the public. Id. at 27:23-28:21. Specifically, he testified that the Ordinance "sets the height requirement of 100 feet, but what it says is, in order to encourage . . . commercial activity [on the first floor], . . . if you have a height limitation of 30 percent," the DDRC may grant the height limitation. Id. at 29:8-22. Importantly, LaPolla noted that the Ordinance defines qualifying commercial activities as restaurants, drug stores, entertainment or similar activities. Id. at 29:13-15. LaPolla opined that the project is eligible for the height bonus because it accounts for multiple commercial activities on the first floor. Id. at 29:16-30:4.
"A project is eligible for a bonus of increased building height if space is provided within the project for the uses, improvements, or facilities set forth below. Bonuses may in no case result in more than 30% additional building height. 1. Active Ground Floor Uses Active ground-floor uses shall include the publicly-accessible areas of restaurants, retail, cultural or entertainment facilities, or other uses determined by the Downtown Design Review Committee to promote pedestrian activity and commerce in Downtown." Ordinance § 603(d).
Clinton testified that he had conducted an assessment of the entire project on the neighboring areas with respect to vehicle and pedestrian traffic. Id. at 35:20-24. Clinton determined that there will be no parking associated with the proposed development, particularly because people tend to give up their cars when they move into urban areas. Id. at 36:3-8. Additionally, Clinton testified that the proposed elimination of 30 existing parking spaces is consistent with the City's goal of decreasing surface parking lots. Id. at 36:16-22. He noted that ample parking already exists in the area and more yet to be constructed. Id. at 36:22-24. Clinton opined "that the proposed development will have no adverse impact on the surrounding, pedestrian and traffic circulation in the area." Id. at 37:7-9.
At the conclusion of evidence and testimony, the DDRC deliberated and voted to grant conceptual approval of the project, thereby allowing the requested waivers and height bonus. Id. at 83:21-127:15. Although they did not attend the hearing on October 7, 2019, members Gelnett and Chille deliberated and voted on the Application. On November 14, 2019, the DDRC issued a written resolution approving the project and recorded the approval in the Providence Land Records on November 19, 2019 (Original Resolution). Specifically, the Original Resolution, signed by Gelnett as "Chair," approved the demolition waivers, a development incentive in the form of a 30% height bonus, a waiver from Ordinance § 606.A.4 and 606.E.1, and the conceptual design approval of project. Id. at 2-4.
On December 3, 2019, White Columns filed an appeal to the Board alleging the following:
"The DDRC decision granting the application for 151-155 Chestnut [S]treet should be reversed by the Zoning Board of Review as it is arbitrary and capricious and was made upon error of law and procedure. The DDRC's decision is conclusory in nature and not supported by specific factual findings based upon substantial evidence in the record. The DDRC's written decision ignores any evidence presented at the first hearing October 7, 2019 and only incorporated information presented at the second hearing on November 4, 2019. The Board failed to cite substantial evidence on critical issues related to, including without limitation, the impact of the requested relief and incentives upon the surrounding built environment and its impact on traffic and pedestrian safety in the neighborhood. The substantial evidence in the record does not support the findings of the DDRC. The DDRC decision will have a negative impact on the surrounding area." Notice of Appeal, Dec. 3, 2019.
On December 5, 2019, the DDRC issued an amended resolution, recorded on December 10, 2019 (Amended Resolution). The Amended Resolution includes the same language as the Original Resolution but additionally refers to the testimony and information presented by White Columns at the October 7, 2019 initial hearing. Id. at 1. Pertinent to this appeal, the Amended Resolution included findings that:
"[t]he design or development condition resulting from the (two demolition) waivers has no adverse impact on the surrounding natural environment, built environment, or pedestrian and traffic circulation." Amended Resolution at 2.
However, when addressing the request for a development incentive in the form of a 30% height bonus, the DDRC found that
"[t]he impact of the height increase will have a slight impact on the surrounding built environment, particularly on the low adjacent buildings located on the same block as the proposed development. Directly across the street is the 90'tall building at 150 Chestnut Street. The height bonus will have no adverse impact on the natural environment, as taller buildings over 6 stories exist nearby, and no adverse impact on pedestrian and traffic circulation." (Emphasis added.) Id. at 3.
White Columns timely appealed from the Amended Resolution to the Board, sitting as the Zoning Board of Appeals which conducted a hearing on the appeal on January 16, 2020. (Board Tr. 1-5, Jan. 16, 2020.)
As grounds for its appeal, White Columns first contended that the Amended Resolution was procedurally improper because two Committee members had not attended the October 7, 2019 hearing nor demonstrated having had reviewed the hearing record before voting to approve the application. DDRC disagreed and stated that absent members are not required to state on the record that they had reviewed the evidence prior to deliberating and voting on a resolution. Id. at 41:6-12.
White Columns further contended that the Amended Resolution was impermissibly conclusory, that it was not supported by substantial evidence, and that the DDRC failed to articulate how it reconciled conflicting testimony. The DDRC denied these contentions and asserted that the Amended Resolution provided sufficient information and explanations for how it reached its decisions. Id. at 42:23-25. PCI additionally asserted that the DDRC properly supported its resolutions with substantial evidence. Id. at 53:18-54:19.
Finally, White Columns asserted that the DDRC erred in granting the height bonus because it failed to find that the 30% height increase over the allowable 100-foot maximum height would have no adverse impact on surrounding built environment. For its part, PCI argued that any mention of a "slight impact" in the record was intended to indicate a positive impact on the surrounding area and that the DDRC properly reached a finding of "no adverse impact" as required by the Ordinance. Id. at 52:10-53:17.
After deliberating on January 16, 2020, the Board voted unanimously to deny the appeal. Id. at 65:19-66:9. On February 11, 2020, the Board issued its written Decision. The Board accepted and agreed with the positions of PCI regarding the issues raised by White Columns. Decision at 8, ¶ 39. The Board found that the DDRC did not engage in prejudicial procedural error because "Appellant had a full opportunity to present its case to the DDRC, including its evidence, witnesses, and positions." Id. ¶ 40. The Board also concluded "that the DDRC made thoughtful and considerate deliberations on each of the required elements" for approval, the DDRC's Amended Resolution contained sufficient information for the Board's review and thus was not "impermissively [sic] conclusionary." Id. ¶ 41. The Board found that the DDRC's Decision was supported by expert testimony and sufficient evidence. Id. ¶ 43.
With respect to White Column's contention that the DDRC erred in granting the height bonus due to its failure to find that the increased height would have no adverse impact on the surrounding area, the Board stated:
"[t]he Appellant's distinction between 'slight impact' and 'no adverse impact' is not supported by the record or the wording of the Ordinance. The standard isn't 'no impact,' but is 'no adverse impact.' The record demonstrates that the DDRC had lengthy discussions on the impact and ultimately found no adverse impact on the surrounding built environment, at one point referring to a positive impact." Id. ¶ 42.
White Columns filed this appeal on March 2, 2020.
II Standard of Review
Pursuant to § 45-24-57(1)(i), the Superior Court possesses jurisdiction to review the appeal of the Board. In its review thereof, the Superior Court, pursuant to § 45-24-47(b), utilizes the judicial review standard as provided in chapter 23 of title 45. Specifically, § 45-23-71, which govern appeals of a decision by a zoning board of appeals to the Superior Court, provides:
Here, the Board, sitting as the Zoning Board of Appeals, heard an appeal of a decision of the DDRC. (Pursuant to a Memorandum of Understanding between the DDRC and the I-195 Redevelopment District Commission, the DDRC essentially performs "review of all development applications in the manner and according to the timelines set forth in the Zoning Ordinance . . . . See DDRC Staff Report, Department of Planning and Development at 5, Sept. 9, 2019. Provision G of section 1907 of the City of Providence Zoning Ordinance (Ordinance) provides: "A person or persons jointly or severally aggrieved by a decision of the Downtown Design Review Committee or its staff in their exercise of development plan review has the right to appeal the decision to the Zoning Board of Review." Ordinance, ch. 2014-39 at 19-14 (December 24, 2014, as amended April 6, 2020). Section 4.12 of the DDRC Rules and Regulations specifically directs: "Any person aggrieved by a determination of the DRC may appeal that decision within twenty (20) days of the date of the written resolution, in accordance with Section 1918 of the zoning ordianance [sic]. Appeals are made to the Zoning Board of Appeal." Id. at 8.
"The court shall not substitute its judgment for that of the . . . board [of review] 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 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(c).
Thereafter, § 45-23-70 further provides that "[t]he 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." Section 45-23-70(a).
The Superior Court reviews the decisions of a plan commission or board of review under the traditional judicial review standard applicable to administrative agency actions. E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 285, 373 A.2d 496, 501 (1977) It is well established that the Superior Court does not conduct a de novo review of such decisions. Id.
III
Analysis
A
Procedural Errors and Prejudice
White Columns contends that the DDRC's determination was procedurally improper because Gelnett and Chille failed to attend the October 7, 2019 hearing where White Columns presented expert testimony. White Columns argues that because neither Gelnett nor Chille offered proof that they had reviewed the record from the prior hearing, they should have been precluded from voting on the Application. White Columns further argues that even if absent DDRC members were not required to certify that they had reviewed the record of the previous hearing, the record lacks any evidence suggesting that they in fact did so. PCI counters that White Columns waived this argument for its failure to object to Gelnett's and Chille's participation in the November 4, 2019 vote for conceptual approval of the proposal. PCI further contends that neither the DDRC Rules nor any other law require DDRC members to provide sworn statements that they have reviewed the record of any evidentiary hearing they did not attend.
This Court notes that although this dispute is referenced in the Decision section B, setting forth the positions of the parties, it is not included in section C of the Decision entitled, "BOARD'S FINDINGS OF FACT AND CONCLUSIONS OF LAW." The Board did, however, include in its findings of fact a catch-all statement that "[t]he Board accepts and agrees with the positions of Appellees regarding the issues raised." Decision at 8, ¶ 39.
Clearly, § 45-24-56 does not apply to the DDRC because it governs the administration and procedures of Zoning Boards. Therefore, the following provision is not applicable to the appeal at Bar:
"No member or alternate may vote on any matter before the board unless they have attended all hearings concerning that matter." Section 45-24-56(b).
Instead, the DDRC Rules and Regulations apply, and they allow a member to vote even if he or she failed to attend all hearings concerning the subject matter:
"No member or alternate member may vote to grant demolition approval, a waiver or a development incentive unless he or she has attended the DDRC hearings or reviewed the record concerning the matter." DDRC Rules and Regulations 4.5.
The applicable rule does not require that all DDRC members who "vote to grant demolition approval, a waiver or a development incentive" attend all evidentiary hearings on the applications. However, the rule does mandate that absent members must have "reviewed the record concerning the matter" before voting. Of significance, the rule fails to specify a procedure for absent members to demonstrate that they reviewed the record of any hearing not attended.
At the hearing on November 4, 2019, DDRC staff member, Christopher Ise, noted that the hearing was a continuation from the October 7, 2019 hearing and that "the DRC reviewed the minutes from last month and have approved it at this meeting, so they have the information from last month." (DDRC Tr. 2:9-15, Nov. 4, 2019.) Those minutes refer to the instant Application on two single-spaced typed pages (DDRC Meeting Minutes 2, 4, Oct. 7, 2019.) Certainly, reviewing the minutes of a meeting is not tantamount to listening to the tape recordings of the meeting or reviewing the 106-page transcription of those recordings. (DDRC Tr. 1-106, Oct. 7, 2019.)
PCI suggests that because the rules are silent as to any requirement that members expressly state that they reviewed the record, it was incumbent on White Columns to raise the issue before the vote was taken and failure to do so precludes review of the issue. This Court rejects this contention which, in effect, shifts the burden of compliance with the rule from the member who did not attend all meetings to the party who has a right to have the controversy decided by members who are eligible to vote.
Additionally, the Court has not held explicitly that the "raise-or-waive" doctrine applies to administrative proceedings. East Bay Community Development Corporation v. Zoning Board of Review of Town of Barrington, 901 A.2d 1136, 1153 (R.I. 2006). Although it is not mandated in this context, the raise-or-waive doctrine serves "'judicial economy by encouraging resolution of issues at the trial level [and] it also promotes fairer and more efficient trial proceedings by providing opposing counsel with an opportunity to respond appropriately to claims raised.'" Id. at 1152-53 (quoting State v. Burke, 522 A.2d 725, 731 (R.I. 1987)). Thus, although it may have been in the interest of judicial economy for White Columns to raise the issue of Gelnett's and Chille's absences on November 4, 2019, White Columns did not waive its right to do so before the Board or in this appeal. This Court is troubled by the failure of the absent members to address their compliance with Rule 4.5 before voting on the motion to reject the appeal. Their failure is compounded by the words of the staff member, Ise, suggesting that "the DRC reviewed the minutes from last month and have approved it at this meeting, so they have the information from last month." (DDRC Tr. 2:12-15, Nov. 4, 2019.) The Court notes that the aforementioned statement was not offered by Gelnett or Chille or by any other Committee member which leaves the Court merely to wonder whether the DDRC incorrectly interprets its Rule 4.5 as merely requiring an absent member to review the minutes of any missed hearing.
The initial resolution was flawed for failing to refer to the October 7, 2019 hearing or to the three witnesses presented by White Columns at that hearing: Purvis, its principal; Shevlin, a traffic engineer and Casale, who testified as an expert on the city's Comprehensive Plan. (Original Resolution, Nov. 14, 2019.) This incomplete resolution was signed by "Kristi Gelnett, Chair," one of the members who missed the October 7, 2019 hearing. Only after White Columns challenged that resolution did the DDRC amend it to reference the October 7, 2019 hearing and the witnesses who testified at that hearing. (Amended Resolution, Dec. 5, 2019.)
The law on this issue is clear. In a quasi-judicial context such as a proceeding before the DDRC, there is a presumption of regularity so long as a quorum of the committee reached the decision after each member had access to the record and to the evidence. Gardner v. Cumberland Town Council, 826 A.2d 972, 979 (R.I. 2003). Absent a specific statutory requirement to the contrary, members of an administrative or quasi-judicial agency may decide a case without hearing all of the witnesses testify so long as they considered and appraised the evidence. Id. See also Jefferson v. State, 184 A.3d 1094, 1107 (R.I. 2018) (holding that the presumption of administrative regularity generally attaches to the decisions of administrative bodies).
In this case, Rule 4.5 mandates that a member who missed a hearing must review the record of the missed hearing before voting on an application. In the absence of a specific requirement that the absent members also must certify that they reviewed the record, the members who missed the October 7, 2019 hearing had no obligation to do so. Consistent with the presumption of regularity, it is presumed that they did, in fact, review the record. "Generally, in examining administrative proceedings, the presumption favors the administrators, and the burden is upon the party challenging the action to produce evidence sufficient to rebut this presumption." Champlin's Realty Associates v. Tikoian, 989 A.2d 427, 452-53 (R.I. 2010).
In this case, White Columns focusses on the failure of Gelnett and Chille to declare that they reviewed the record and on the absence of any evidence on the record to suggest that they did so. That argument fails because it is presumed that they complied with the rule and reviewed the record. Certainly, a certification by the absent members that they reviewed the record from the October 7, 2019 hearing would give greater confidence to the outcome of White Columns' appeal, but they were not required to do so.
White Columns could not prevail on its argument without producing evidence sufficient to rebut the presumption. See id. Other than their failure to reference having reviewed the record, White Columns argues that the statement of the staff member, Ise, which gave undue importance to the minutes, constitutes proof that Gelnett and Chille reviewed only the minutes of the hearing they missed, and not the record from that hearing. Such argument is pure speculation, and the Board did not err in disregarding it. The fact that the Original Resolution made no reference to the October 7, 2019 hearing or even that it was signed by a member who had missed that hearing does not render the Board's decision on this issue clearly erroneous. Accordingly, the Court rejects White Columns' contention that the Decision of the Board should be reversed because two DDRC members failed to attend all hearings and failed to demonstrate that they had reviewed the record of the missed hearing.
B
Minimum Requirements of the Decision
White Columns next argues that the Decisions of the DDRC and the Board are impermissibly conclusory and fail to satisfy the minimum requirements imposed on all municipal bodies by this Court. Specifically, White Columns claims that the DDRC Decision lacked any written reasoning sufficient to support the conclusions stated therein, while the Board's Decision affirming it was clearly wrong and an abuse of discretion. PCI contends that White Columns misapplied the cases it relied upon and further argues that a challenge to the sufficiency of the written findings of fact may be reviewed in context and as part of the complete larger record.
White Columns relies on Cullen v. Town Council of Town of Lincoln, 850 A.2d 900, 904 (R.I. 2004) to support its assertion that this Court will not search the record for supporting evidence and that merely copying and pasting information from a staff report does not amount to more than a "recitation of a litany." See id. In Cullen, the applicant required approval of its proposal to connect a sewer line into the town's sewer system in connection with its planned development of a residential subdivision. After hearing thereon, the town rejected the proposal without providing any factual basis for its decision other than a single comment made by the council member who moved to reject the application that "there are other alternate routes available to the petitioners that would allow them to tie into the sewer system without using the pumping station." Id. at 903.
For its part, PCI suggests that White Columns' reliance on Cullen is misplaced because unlike Cullen, in this case, the Court was provided with a sufficient evidentiary record from which to determine the factual basis of the Board's ruling. PCI seems to suggest that the Court may disregard an inadequate decision if the evidentiary record is sufficient. PCI'S reliance on Irish Partnership v. Rommel, 518 A.2d 356, 358 (R.I. 1986), on this point is misplaced. In Irish Partnership, the Court ruled that remand for further proceedings was required because the board of review failed to identify findings of fact and reasons for the action taken in its decision. The board of review gave no reasons whatsoever for its ruling, although two board members articulated aspects of the decision they viewed as important. Certainly, Irish Partnership does not suggest that the Court should search the record for supporting evidence even if the record includes abundant evidence on which the decision could have been based. See id. at 358. On the contrary, the Court in Irish Partnership held that the failure of the board to set forth in its decision findings of fact and reasons for action taken required remand for further proceedings.
Additionally, the Court's holding in Cullen did not reflect a determination that the record was deficient, only the decision. In fact, in Cullen, before the application was forwarded to the town council for consideration, the appeal board held two days of hearings at which various proponents and objectors testified. The Council itself heard from several witnesses, including citizens opposing and supporting the application, an engineer retained by the applicant and the town's engineer. It certainly would appear that the record was sufficient to enable the town council to issue a decision consistent with the mandate that it make the prerequisite factual determinations and apply the proper legal principles. Cullen, 850 A.2d at 903.
PCI also relies on a Superior Court decision reversing a zoning board of review's decision granting applicants' request for requested zoning variances, Place v. Painted Warriors, Inc., No. Civ.A PC 02-2843, 2003 WL 22389550 (R.I. Super. Sept. 5, 2003). PCI suggests that this Court should follow the ruling in Place, a decision that is not binding on this Court. In Place, the Superior Court determined an administrative appeal without remand even though the decision before her did not include the required findings of facts and conclusions of law. She searched the record and determined that the evidence was insufficient to support the decision to grant the Application. She opined that a remand to require the zoning board of review to identify its findings of fact and conclusions of law would be futile. In so ruling, the Superior Court justice relied on an earlier decision from our Supreme Court, Roger Williams College v. Gallison, 572 A.2d 61, 62 (R.I. 1990). However, that case did not involve a decision from the board of review that was conclusory and therefore insufficient. In Roger Williams College, the issue was whether to remand a case to the zoning board of review to allow a party the opportunity to present additional evidence where the evidence presented initially was inadequate.
The law in this state is clear. '"[A] municipal board, when acting in a quasi-judicial capacity, must set forth in its decision findings of fact and reasons for the action taken."' Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001) (quoting Irish Partnership, 518 A.2d at 358.) The Court has stated that this requirement '"facilitat[es] judicial review, avoid[s] judicial usurpation of administrative functions, assur[es] more careful administrative consideration, help[s] parties plan their cases for rehearings and judicial review, and keep[s] agencies within their jurisdiction.'" Hooper v. Goldstein, 104 R.I. 32, 44, 241 A.2d 809, 815 (1968) (quoting 2 K.C. Davis, Administrative Law Treatise § 16.05 at 444). Pursuant to § 45-23-71, judicial review of board decisions is not de novo. 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 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.; Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986). Rather, "[i]ts 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." Kirby, 634 A.2d at 290. Specifically, this Court must examine the content of the Board's decision and decide '"whether the board members resolved the evidentiary conflicts, made the prerequisite factual determinations, and applied the proper legal principles. Those findings must, of course, be factual rather than conclusional [sic], and the application of the legal principles must be something more than the recital of a litany."' Irish Partnership, 518 A.2d at 358-59 (quoting May-Day Realty Corporation v. Board of Appeals of City of Pawtucket, 107 R.I. 235, 239, 267 A.2d 400, 403 (1970)).
The requirement that the Board set forth its findings of fact and reasons for the action taken does not relieve the Court from the obligation to review the entire record. While this Court must not substitute its judgment for that of the Board's, its review of the record is necessary. See Mendonsa v. Corey, 495 A.2d 257, 260 (R.I. 1985). When reviewing the action of a zoning board, this Court is charged with examining '"the entire record to determine whether 'substantial' evidence exists to support the board's findings.'" Salve Regina College v. Zoning Board of Review of City of Newport, 594 A.2d 878, 880 (R.I. 1991) (quoting DeStefano v. Zoning Board of Review of City of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979)).
Unlike the decisions under review by the Court in Irish Partnership and Cullen, the instant Decision follows a format that would suggest that the Board would be making the requisite factual determinations and would apply the proper legal principles. However, as our Supreme Court has stated, "In determining whether the municipal body has complied with these basic requirements, this Court is concerned with the content, rather than the form, of the decision." Cullen, 850 A.2d at 904. Accordingly, this Court reviews the content of the Decision to determine whether it is deficient and conclusory as claimed by White Columns.
The Court notes that the Board meticulously sets forth in detail the factual contentions of the parties. Decision at 6-8, ¶¶ 26-38. However, the Board was less detailed in articulating its findings of fact. Decision at 8-9, ¶¶ 39-44. The Decision begins its Section C, "BOARD'S FINDINGS OF FACT AND CONCLUSIONS OF LAW" with the statement that "[t]he Board accepts and agrees with the positions of Appellees regarding the issues raised." Id. ¶ 39. By making this overly broad statement, the Board attempted to relieve itself from a full discussion of how it resolved the evidentiary conflicts and made its own factual determinations. Although the Board specifically addressed White Columns' contention that the DDRC "found no adverse impact on the surrounding built environment[, ]" id. ¶ 42, the other findings of fact were conclusory rather than factual. However, when read in its entirety, referring back to the discussion of the positions of the parties whose positions it adopted, the Decision includes the prerequisite factual determinations to enable this Court to review the Decision, albeit barely. The Board did not merely state that it accepted and agreed with the positions of the Appellees regarding the issues raised with no explanation, it identified the disputed issues and described the positions of the adverse parties as to each, in the section that preceded its findings of fact. Id. at 6-8, ¶¶ 26-38. When the Board stated that it adopted the positions of the Appellees, it certainly is arguable that the Board was resolving the evidentiary conflicts consistent with the positions it attributed to the Appellees. Id. at 7-8, ¶¶ 33-38. Consequently, the Decision was not impermissibly conclusory.
The Court addresses this finding infra.
It is disappointing that the Board chose to make its findings of fact in this fashion rather than addressing each issue in the findings of fact section of the Decision. By merely stating that "[t]he Board accepts and agrees with the positions of Appellees regarding the issues raised[, ]" id. ¶ 39, it might be construed by some as suggesting that the Board was "rubber stamping" the Amended Resolution rather than deciding the controversy independently. Certainly, there is a presumption of integrity and objectivity in the decision-making process. See Champlin's Realty Associates, 989 A.2d at 453. However, to promote public confidence in the fairness of that process, it would be preferable for the Board to articulate its findings of fact in such a manner that it would eliminate any question that those findings were made fairly and independently.
White Columns further argues that the DDRC's reference to the Staff Report during its consideration and vote on the proposed project invalidated the DDRC's Resolution because it adopted the Staff Recommendation in place of making its own findings of fact. According to the DDRC Rules and Regulations, when reviewing an application for a demolition waiver, "the Committee shall consider, but not be limited to, . . . [a]n evaluation of the building(s) issued by DRC Staff." DDRC Rules and Regulations § 4.11(E). Moreover, the DDRC, in considering an application, is permitted to include staff reports pertaining to the historic and architectural significance of the property, issues to consider, relationship of the proposal to the criteria in the Ordinance and the standards and guidelines, as well as a recommendation for action. See id. § 5.10(A).
In Champlin's Realty Associates, 989 A.2d at 443, a staff member of the CRMC prepared an alternate plan to the one submitted by the applicant. The report was shared with council members, but not with the parties. Our Supreme Court ordered the case remanded to the CRMC to supplement the record with that alternate plan and to permit the parties to respond and cross-examine. Id. In contrast, in the instant appeal, all of the evidence that was received or considered was on the record. Thus, this Court finds that the DDRC permissively referenced the Staff Report in its consideration of the Application.
Of significance, the DDRC Staff Report was made available to the parties, and a staff member involved in authoring it, Christopher Ise, appeared at the hearings giving White Columns an opportunity to confront the report. The DDRC's reliance on the Staff Report was not improper so long as it was included in the administrative record allowing the parties to confront it.
White Columns additionally claims that the DDRC did not provide substantial evidence to support its conclusion that the merits of the project outweighed the merits of preservation. See Ordinance, § 1907.E.2. The findings of fact made in the DDRC Decision include:
In pertinent part, the Ordinance states:
"In order to preserve the urban fabric of the D-1 District, no building may be demolished, in whole or in part, until the Downtown Design Review Committee or the Capital Center Commission, as applicable, has granted a waiver to demolish the building and has approved plans for new construction. In reviewing an application for a demolition waiver, the Downtown Design Review Committee or the Capital Center Commission shall consider the historic value and architectural quality of the existing building, regardless of condition; the design of new structures for the site if demolition is approved; and how the design of new structures relates to adjacent structures." Ordinance § 1907.E.2(a).
"1. 151 Chestnut Street and 155 Chestnut Street are not structures of architectural or historic significance. The building at 155 Chestnut Street contributes to the architectural and historic significance of the Downtown District.
"2. The work proposed consists of the new construction of a 12-story mixed-use building.
"3. The application for a Demolition Waiver, Development Incentive/Height Bonus, Waivers, and New Construction is complete on a conceptual level.
"4. The requests for Waivers and a Development Incentive are in accord with the Section 1907 of the Zoning Ordinance.
"5. The New Construction, in concept, is in accord with the Development Standards set forth in Section 600 of the Providence Zoning Ordinance." Amended Resolution at 5.
The Court will address the DDRC's decision to grant the height bonus in the next section of this Decision. With respect to the other findings, the Court concludes that they are supported by evidence in the record and the Ordinance. Clearly, the DDRC relied on a voluminous record replete with expert testimony, development standards, comprehensive plans, the Ordinance, and staff reports. With the exception of the issues raised by White Columns in connection with the granting of the application for a height bonus, this Court concludes that the DDRC Amended Resolution and the Decision of the Board otherwise included sufficient findings of fact and sufficient reasons for the action taken to facilitate judicial review. With the aforementioned exception, the Decision was otherwise properly based upon substantial evidence, met the minimum standards of review as prescribed by this Court, and reached the requisite findings of fact to approve the Application.
C
Height Bonus
The DDRC must adhere to the following when assessing a request for a developmental incentive in the form of a height bonus. Before granting development incentives in the form of height bonuses, the DDRC shall make positive written findings that
"the design or development condition resulting from the development incentive has no adverse impact on the surrounding natural environment, built environment, or pedestrian and traffic circulation." (Emphasis added). City of Providence Zoning Ordinance § 1907.F.2(a).
In adopting the position of PCI and the DDRC, the Board determined that the DDRC finding that there would be a "slight impact from the height bonus on the surrounding built environment, particularly on the low adjacent buildings located on the same block as the proposed development" did not violate the applicable zoning ordinance § 1907.F.2(a) because the DDRC did not find that the slight impact would be an adverse one. The Board specifically concluded that:
"[White Columns'] distinction between 'slight impact' and 'no adverse impact' is not supported by the record or the wording of the ordinance. The standard isn't 'no impact,' but is 'no adverse impact.' The record demonstrates that the DDRC had lengthy discussions on the impact and ultimately found no adverse impact on the surrounding built environment, at one point referring to a positive impact." Decision at 8, ¶ 42.
White Columns argues that the Decision is deficient because the DDRC failed to make the required finding that granting the height bonus would have no adverse impact on the surrounding built environment.
In the Amended Resolution, as it related to the application for demolition waivers, the DDRC found that the
"design or development condition resulting from the (two demolition) waiver[s] has no adverse impact on the surrounding natural environment, built environment, or pedestrian and traffic circulation." Amended Resolution at 2.
However, when addressing the request for a development incentive in the form of a 30% height bonus, the DDRC found that
"[t]he impact of the height increase will have a slight impact on the surrounding built environment, particularly on the low adjacent buildings located on the same block as the proposed development. Directly across the street is the 90' tall building at 150 Chestnut Street. The height bonus will have no adverse impact on the natural environment, as taller buildings over 6 stories exist nearby, and no adverse impact on pedestrian and traffic circulation." (Emphasis added.) Id. at 3.
Accordingly, as it related to the requested 30% height bonus, the DDRC found that it would have a slight impact on the low adjacent buildings. This was one isolated finding, but it cannot be ignored nor can the wording in the Ordinance that requires the DDRC to make a finding of "no adverse impact on the surrounding . . . built environment" before granting a height bonus. Regardless of whether the DDRC made a finding of no adverse impact on all other aspects of the application, the height bonus cannot be granted absent a finding of no adverse impact on the built environment.
It is well established that when interpreting an ordinance, the Court must "presume that the [City Council] intended to attach significance to every word, sentence and provision . . ." West v. McDonald, 18 A.3d 526, 538 (R.I. 2011); Retirement Board of the Employees' Retirement System of Rhode Island v. DiPrete, 845 A.2d 270, 279 (R.I. 2004) (citing Champlin's Realty Associates, L.P. v. Tillson, 823 A.2d 1162, 1165 (R.I. 2003)). "When presented with a clear and unambiguous enactment, there is no room for statutory construction, and the statute will be literally applied, attributing the plain and ordinary meaning to its words." Id. (citing Interstate Navigation Co. v. Division of Public Utilities and Carriers of State of Rhode Island, 824 A.2d 1282, 1287 (R.I. 2003)).
Certainly, the words "slight impact" are not synonymous for the words "no adverse impact." The Ordinance is clear. The DDRC cannot grant a height bonus unless it makes "positive written findings" that "[t]he design or development condition resulting from the development incentive has no adverse impact on the surrounding . . . built environment . . ." Section 1907.F.2(a). Based upon the testimony as referenced previously in this Decision, the record supports a finding that at least a slight adverse impact would result to the surrounding built environment from granting the height bonus. It strains credulity to conclude that when the DDRC found that the height bonus would have a slight impact on low adjacent buildings that it was referring to a positive impact. The reasonable inference from that finding is that the new building at 127 feet will tower over the low adjacent buildings, two of which are owned by White Columns.
The Court notes that in granting the demolition waivers, the DDRC simply stated that the "design or development condition resulting from the waiver has no adverse impact on the surrounding natural environment, built environment, or pedestrian and traffic circulation." (Emphasis added). Amended Resolution at 2. The DDRC combined the surrounding natural environment, built environment, pedestrian and traffic circulation and did not address those factors separately.
In contrast, as it relates to the height bonus, the DDRC separated its findings. The DDRC specifically found that the height bonus would have no adverse impact on the surrounding natural environment or on pedestrian and traffic circulation. It is reasonable to infer that if the DDRC made the same determination as it relates to the built environment, the Committee would not have separated its findings.
The Court concludes that the Board erred in determining that the DDRC had made the required positive written finding of no adverse impact as it relates to the granting of the height bonus. In so ruling, the Board disregarded the obligation of the DDRC before granting a height bonus to make a positive written finding that "[t]he design or development condition resulting from the development incentive has no adverse impact on the surrounding . . . built environment . . ." Section 1907.F.2(a). The DDRC made no such positive written finding which was a clear prerequisite to granting the relief sought. Accordingly, the Board's Decision in this regard was clearly erroneous and affected by error of law. It was arbitrary and capricious, and characterized by abuse of discretion or clearly unwarranted exercise of discretion.
IV
Conclusion
After reviewing the entire record, this Court grants the appeal in part and denies it in part. The Court determines that the Board's Decision included sufficient findings of facts and reasons for the action taken and was not impermissibly conclusory.
The failure of two DDRC members to demonstrate that they reviewed the record of the hearing they did not attend before deliberating and voting to reject the appeal does not constitute prejudicial procedural errors.
The Decision of the Board to uphold the DDRC's grant of a developmental incentive in the form of a height bonus is reversed. That Decision was clearly erroneous and affected by error of law. It was arbitrary and capricious, and characterized by abuse of discretion or clearly unwarranted exercise of discretion.
The Decision of the Board is otherwise upheld on all other issues. In that regard, it was not clearly erroneous or affected by error of law. It was neither arbitrary nor capricious, nor is it characterized by abuse of discretion. It does not violate constitutional or statutory provisions and it is supported by reliable, probative and substantial evidence in the record.
Counsel shall submit an appropriate order for entry.