Providence Preservation Society, West Broadway Neighborhood Association, and Risa Gilpin v. John Kelly, Scott Wolf, Daniel Varin, Andrea Underwood, and Arthur Strother in their capacities as members of the Zoning Board of Review of the City of Providence and Lawton Family Realty, LLC and 19-21 Harrison Street Associates, LLC
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
(FILED – SEPTEMBER 18, 2008)
SOCIETY, WEST BROADWAY
and RISA GILPIN,
JOHN KELLY, SCOTT WOLF,
DANIEL VARIN, ANDREA
UNDERWOOD, and ARTHUR
STROTHER In their capacities as
members of the Zoning Board of Review
of the City of Providence and LAWTON
FAMILY REALTY, LLC and
19-21 HARRISON STREET ASSOCIATES, :
C.A. No. PC 07-3224
Providence Preservation Society (“PPS”), West Broadway Neighborhood
Association (“West Broadway”), and Risa Gilpin (collectively, “Appellants”) appeal from a June
11, 2007 Decision of the Zoning Board of Review for the City of Providence (“Board”). In its
Decision, the Board granted six variances requested by Lawton Family Realty, LLC (“Lawton
Realty”) and 19-21 Harrison St. Associates, LLC (“Harrison”), in order to convert a Warehouse
into a twenty-unit residential property. Lawton Realty, Harrison, and the Board have objected to
Appellants’ Appeal. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
Facts & Travel
Appellee Lawton Realty currently owns 19-21 Harrison St. in Providence, Rhode Island
(“Warehouse”), located at Plat 32, Lot 234, on which there is a structure previously used as a
warehouse. Lawton Realty sought to sell the property, and Appellee Harrison made an offer to
purchase the Warehouse. Lawton Realty and Harrison then jointly submitted an application to
the Board on December 11, 2006, seeking multiple variances in order to convert the Warehouse
into a twenty-unit residential property. The Warehouse is located in a Residential-Three zone
(“R-3”), as specified by the Providence Zoning Ordinance. Multi-family developments, up to
three family units per 5,000 square foot lots, are permitted in R-3 zones.
currently is unoccupied, though it was last used as a warehouse, which was a legal, nonconforming use of the property.
Lawton Realty and Harrison jointly applied for one use variance and five dimensional
variances. The sought-after use variance would permit the conversion of the Warehouse into a
twenty-unit residential property.1 The five dimensional variances sought to allow a smaller
front-yard setback than that which is required by the zoning ordinance; to add a structure to the
Warehouse which contain house, a stairwell exceeding the height limitations in the zoning
ordinance; to provide twenty-seven of the thirty required parking spaces; to permit paving of the
front yard; and, to allow direct entrance and exit of the property to and from the street.
The Board held public hearings on Lawton Realty and Harrison’s requests on February
27, 2007, and March 27, 2007. There was much discussion at both hearings, with numerous
people speaking in favor of and against the granting of the variances. Many of the people
The Court notes that the use of the Warehouse as a residential unit clearly is permitted by the
zoning ordinance; however, the proposed density of twenty units is not. The Board granted a
“use” variance to permit more than three-family units on the property. However, because the
property may rightfully be used as a residential property, the variance granted is actually a
dimensional variance, which permits a greater density of residential property than otherwise
allowed. Regardless of the terminology employed by the Board, however, the effect of the
variance granted is the same, and for the sake of continuity, the Court will refer to this variance
as a “use variance.”
speaking against granting the variances expressed concern over the density of the proposed
twenty-unit building and the dearth of parking that would be available on the property.
With respect to the parking concerns, Appellees Lawton Realty and Harrison represented
to the Board that they had contracted to rent ten parking spaces from the nearby New Covenant
Church for ten years. Lawton Realty and Harrison also explained that they had contracted to
purchase a nearby property known as the US Gas Property, located on the corner of Dexter and
Westminster Streets (“US Gas Property”), which would be used, in part, to provide an additional
thirteen parking spaces for residents of the Warehouse. No evidence has been provided to this
Court that the US Gas Property actually was purchased by either Lawton Realty or Harrison.
On June 11, 2007, the Board issued Resolution No. 9199, in which it granted all six of
Lawton Realty and Harrison’s requested variances. The Appellants filed this appeal of the
Board’s Decision on June 25, 2007.
On appeal, Appellants contend that their substantial rights have been violated because the
Board’s Decision was premised upon unlawful procedure, was clearly erroneous, was arbitrary
or capricious, and was characterized by an abuse of the Board’s discretion. The Appellants take
particular issue with the use variance permitting twenty residential units and the dimensional
variance permitting fewer than the required thirty parking spaces (“parking variance”). The
Appellants further argue that the record lacks evidence supporting the conclusion that there is no
other beneficial use of the Warehouse. Instead, Appellants contend that there may be other,
permissible, beneficial uses, the existence of which would require the denial of the requested
variances. Furthermore, Appellants assert that Lawton Realty and Harrison misled the Board by
asserting that they could provide an additional thirteen parking spaces on the US Gas Property.
The Appellants maintain that providing thirteen parking spaces on the US Gas Property would
violate the zoning ordinance to which that particular property is subject.2
The parties each have submitted numerous memoranda to the Court.3 After reviewing the
entire record, this Court will now makes the following determinations.
Standard of Review
This Court reviews Zoning Board Decisions pursuant to G.L. 1956 § 45-24-69(d), which
[t]he Court shall not substitute its judgment for that of the zoning
board of review as to the weight of the evidence on questions of
fact. The court may affirm the decision of the zoning board of
review 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, or ordinance
(2) In excess of authority granted to the zoning board of
review 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.
When reviewing a decision, the Court must not substitute its judgment for that of the
Board. Mendonsa v. Corey, 495 A.2d 257 (R.I. 1985). Instead, the Court must review the
Board’s Decision to determine whether there is substantial evidence on the record supporting it.
The US Gas Property is located in a Commercial One (“C-1”) zone, as well as in the West Side
Appellees Kelly, Wolf, Varin, Underwood, and Strother, as members of the Board, submitted
memoranda adopting the arguments of Lawton Realty and Harrison.
R.J.E.P. Assoc. v. Hellewell, 560 A.2d 353 (R.I. 1989). The Rhode Island Supreme Court has
defined substantial evidence as “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.” Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981)
(internal citations omitted).
In order to provide adequate reasoning such that the Court can properly review a Board’s
decision, a zoning board of review “must record [its] proceedings in sufficient detail to allow a
reviewing court to ascertain the grounds of the decision.” Holmes v. Dowling, 413 A.2d 95, 98
(R.I. 1980) (internal citations omitted). Further, it is a longstanding rule of the Rhode Island
Supreme Court that zoning boards “should  set forth the ground or grounds for their decision,
as this court is entitled to know the basis for their action.” Robinson v. Town Council of
Narragansett, 60 R.I. 422, 437, 199 A. 308, 314 (1938) (internal citations omitted).
The Parking Variance
In its Decision, the Board found that although the zoning ordinances require thirty
parking spaces for the proposed twenty residential units in the Warehouse, “with the purchase of
the US Gas property, [the Applicant] would own 17 parking spaces and control an additional ten
(10) spaces (those leased from the New Covenant Church) for a total of 27 parking spaces.”
Decision at 2. The Board also explained that “[t]he Applicant further noted that the US Gas
Property was located in a C-1 zone and did not require any zoning relief in order to be used for
parking.” Id. Moreover, the Department of Planning and Development’s written report, which
the Board considered, recommended granting the variances so long as the Applicant “was able to
secure a total of 20 off-street parking spaces.” Id. at 3.
The Appellants now assert that the US Gas Property cannot provide thirteen parking
spaces for the Warehouse, because doing so would constitute parking as a principle use on that
property, in violation of the C-1 zoning requirements. As a result, Appellants assert that Lawton
Realty and Harrison misrepresented the facts to the Board, this resulting in an erroneous
Decision that is unsupported by the record.
The Appellants primarily argue that Lawton Realty and Harrison incorrectly represented
to the Board that permitting parking on the US Gas Property would not require zoning relief.
They assert that providing the proposed thirteen parking spaces on the US Gas Property would
constitute parking as a principal use, which is prohibited in C-1 zones. Implicit in asking this
Court to decide that Lawton Realty and Harrison misrepresented to the Board that no zoning
relief would be needed for the US Gas Property, is a request that this Court determine the zoning
requirements of the C-1 zone as they apply to the US Gas Property, as well as whether
Appellees’ proposed use of that property would violate the zoning ordinance. In order to make
these determinations, this Court would first need to guess what the use of the property would be,
if it is purchased.
The Appellees assert that they did not misrepresent the facts to the Board, and that
providing parking on the US Gas Property would not violate the zoning ordinance because they
plan to primarily use the property as a management office for the Warehouse. They contend
further that any parking on the property will be an accessory use thereof, which is permitted by
the zoning ordinance.
The zoning ordinance defines “[p]arking, principal use” as “[o]ff street parking of
automobiles on one (1) or more lots where parking spaces for more than four (4) automobiles are
available for public use whether free, for compensation or to satisfy parking requirements of a
principal use on separate and noncontiguous lots.”
Providence Zoning Ordinance Art. X,
§ 1000.110. Parking as an accessory use of property is defined as “[o]ff-street parking of
automobiles on the same or contiguous lot as a principal use where said parking is established or
required in conjunction with the principal use.” Id. at § 1000.109.
The Appellants have
accurately asserted that parking as a principal use is prohibited in the West Side Overlay District.
Providence Zoning Ordinance Art. V, § 506.6(A). Moreover, although Parking as a principal use
is not prohibited in C-1 zones, it is only permitted if a special use permit is granted. Providence
Zoning Ordinance Art. III, § 303.
The Appellants are asking this Court to consider these zoning ordinance definitions and
conclude that using the US Gas Property to provide parking for residents of the Warehouse
would constitute parking as a principal use of the US Gas Property. However, this Court is
vested with the authority to review zoning board decisions; it is not authorized to make legal
conclusions as to issues the Board has not yet considered. See § 45-24-69 (granting the Superior
Court authority to consider appeals from a decision of the zoning board of review). Therefore,
this Court cannot conclude whether the proposed use of the US Gas Property would violate the
Moreover, there is no evidence in the record demonstrating that either Lawton Realty or
Harrison has actually purchased the US Gas Property. This Court cannot assume that the
transaction will occur as the parties have represented, or that the spaces will be available to the
residents of the Warehouse property. Further, the Board fails to describe any facts it assumed
when deciding to grant the variances. It is impossible for this Court to know why the Board
granted the parking variance. Certainly, the Court could conclude, by speculating, that the Board
assumed the US Gas Property would be purchased, and that the parking variance was contingent
upon this fact.
The Board’s Decision refers to the US Gas Property a number of times,
seemingly assuming that the property will be purchased and used in accordance with Lawton
Realty and Harrison’s representations. See, e.g., Decision at 2, 3. However, the Board never
enunciates a factual finding that this sale will occur imminently, nor does it create, as a condition
to the variances, any requirement that the sale occur or that the proposed use of the US Gas
Property be in accordance with zoning ordinances. In its Decision, the Board simply explains
that “[t]he Applicant further noted that the US Gas Property was located in a C-1 zone and did
not require any zoning relief in order to be used for parking.” Decision at 2.
Furthermore, the Board’s factual findings simply summarize much of Lawton Realty and
Harisson’s testimony; they fail to conclude the facts as the Board found them. For example, the
Board begins many of its factual determinations with phrases such as “[t]he Applicant proffered
testimony” and “[t]he Applicant further testified.” This summarization of Lawton Realty and
Harrison’s evidence does not indicate whether the Board weighed the evidence, considered the
credibility of the witnesses, and then concluded the facts. Though it is possible that the Board
adopted the facts presented by the Appellees as its own findings of fact, this Court cannot make
such an assumption. Further, in failing to explain whether the parking variance is contingent
upon the occurrence of any fact, including the purchase of the US Gas Property, this Court has
no basis of concluding whether the Board erroneously granted the variance.
As explained by the Rhode Island Supreme Court in such cases as Robinson and Holmes,
a Board’s decision must provide enough detail such that the reviewing Court is not left to guess
about why the Board came to its particular conclusions. See, e.g., Holmes, 413 A.2d at 98
(explaining that Board must provide sufficient details for the reviewing Court to understand why
the Board came to its conclusion); Robinson, 60 R.I. at 437, 199 A. at 314 (articulating that the
Board must explain the basis of its decision, so the court may review it).
Because, the Board’s Decision fails to explain whether the parking variance was granted
contingent upon the occurrence of any fact, including whether it was contingent upon the
purchase of the US Gas Property, and because the Board fails to clearly enunciate the facts as it
found them, this Court cannot conclude whether the Board properly granted the parking
variance.4 Further, while it seems clear that the Board assumed the US Gas Property would be
purchased by either Lawton Realty or Harrison, this Court cannot make such an assumption.
Consideration of the Board’s Decision is premature, until and unless the property is
purchased, or the Decision clearly explains the significance and effect, if any, the purchase of the
US Gas Property has on the parking variance. Moreover, even if the Board’s Decision provided
enough detail for this Court to understand upon what facts its Decision was based, this Court
could not properly conclude whether permitting parking on the US Gas Property violates the
zoning ordinance, because that issue is not now before the Court on appeal.
This Court concludes that the Board’s Decision lacks factual findings specific enough to
permit a review of the Board’s Decision. This Court has no way of determining why the parking
variance was granted. Moreover, even if the parking variance was clearly contingent on the
availability of additional parking at the US Gas Property, this Court cannot properly conclude
that using the US Gas Property in such a way would be in accordance with the zoning ordinance.
The Board’s Decision explains that it is subject to two conditions: “(1) the Applicant shall plant
street trees along Harrison and Powhatan Streets, and (2) the former US Gas property be
landscaped as presented and that an aesthetically pleasing fence be installed around the US Gas
property as well.” Decision at 3.
Further, neither Lawton Realty nor Harrison have purchased the US Gas Property. Therefore,
the review of the Board’s Decision, which seems to rely on the purchase of the US Gas Property,
is premature. As a result, the Board’s Decision is remanded with instructions to the Board to
clarify the factual basis upon which it decided to grant the variances.
The Board is also
instructed to specify the assumptions upon which its Decision is based and any conditions that
must be met before the parking variance is valid.
The Remaining Variances
Just as the Board’s Decision fails to provide specific factual findings that supports the
granting of the parking variance, it likewise fails to enunciate the factual basis for granting the
remaining five variances. Rather than concluding facts, the Board summarizes the testimony
Harrison presented. As noted above, the Court could reasonably assume that by summarizing
testimony, the Board was concluding it to be true. However, this Court cannot make this
assumption, and without knowing the basis upon which the Board’s Decision is based, it is
impossible for this Court to review the Decision.
Upon reviewing the Board’s Decision, this Court concludes that the Board has failed to
provide specific factual findings in its Decision that illustrate to the Court the Board’s reasoning.
As a result, this Court cannot determine whether the Board erroneously granted the variances.
Therefore, the case is remanded to the Board with instructions to clarify its Decision. The parties
shall present an order and judgment in accordance with this Decision.