25 Assoc., LLC and PRI VI, LLC v. Edgar Paxson, in his capacity as Building Official of the City of Providence; Samuel J. Shamoon, in his capacity as Acting Director of the Department of Inspection and Standards of the City of Providence and The City of Providence

• Decision Date: 15 June 2004
• Docket Number: C.A. 03-2771
• Parties: 25 Assoc., LLC and PRI VI, LLC v. Edgar Paxson, in his capacity as Building Official of the City of Providence; Samuel J. Shamoon, in his capacity as Acting Director of the Department of Inspection and Standards of the City of Providence and The City of Providence
• Court: Rhode Island Superior Court

25 Assoc., LLC and PRI VI, LLC v. Edgar Paxson, in his capacity as Building Official of the City of Providence; Samuel J. Shamoon, in his capacity as Acting Director of the Department of Inspection and Standards of the City of Providence and The City of Providence

C.A. No. 03-2771

Superior Court of Rhode Island

June 15, 2004

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC Filed June 15, 2004 SUPERIOR COURT

25 ASSOC., LLC and: PRI VI, LLC:

vs.:

EDGAR PAXSON, in his capacity as: Building Official of the City of Providence; SAMUEL J. SHAMOON, : in his capacity as Acting Director of: the Department of Inspection and: Standards of the City of Providence and: THE CITY OF PROVIDENCE:

DECISION

PROCACCINI J. The matter before the Court is an action for declaratory and injunctive relief. The Plaintiffs, 25 Assoc LLC and PRI VI, LLC (“Plaintiffs”) filed suit against Edgar Paxson, in his capacity as Building Official for the City of Providence, Samuel Shamoon, in his capacity as Acting Director of the Department of Inspection and Standards of the City of Providence, and the City of Providence (collectively “the City”) requesting a declaration of their rights pursuant to the City’s Zoning Ordinance, and seeking a permanent injunction enjoining the City from assessing penalties and fines against the Plaintiffs for alleged violations of the Downcity District regulations. Jurisdiction is pursuant to G.L. 1956 §§ 9-30-1 through 9-30-16, G.L. 1956 § 8-2- 13, and Super. Ct. R. Civ. P. Rule 65.

Background and Procedural History

The Plaintiffs own property located at 25 Broadway in Providence Rhode Island, which is found on the City Assessor’s Map at Plat 26, Lot 349 (the Lot). Prior to April of 2003, a gas station building (“Building”) stood on the Lot. In April of 2003, the Building was demolished.

In response to the demolition project, the City issued Building Inspection Notices of Violation (“NOVs”) against the Plaintiffs, asserting that the Building was being demolished without the required permits and approvals from the Downcity Design Review Committee. On May 8, 2003, Plaintiffs were notified that penalties relative to the NOVs would begin to accrue unless they filed an application with the Downcity Design Review Committee in connection with the demolition of the Building. Plaintiffs deny that their Lot is within the boundaries of the Downcity District, and Plaintiffs assert that they are not required to comply with the Downcity District regulations. Plaintiffs filed the instant action seeking both a declaratory judgment and injunctive relief.

On May 27, 2003, a Superior Court Consent Order entered. Pursuant to the Order, the Plaintiffs were permitted to pave the Lot. In addition, fines and penalties for the NOVs were tolled, and deadlines for administrative appeals were also tolled. The Consent Order mandated that the action on the merits be “advanced and consolidated with the hearing on the application for a preliminary injunction pursuant to” Super. Ct. R. Civ. P. Rule 65(a)(2).

The parties have presented this Court with an Agreed Statement of Facts, exhibits, deposition transcripts, and memoranda. The matter is now before the Court for a decision on the merits of the consolidated declaratory judgment and injunction action.

Facts and Travel

The facts as stipulated by the parties are as follow: Plaintiff, 25 Assoc., LLC, is a limited liability company with a principal place of business at 76 Dorrance Street, Providence, Rhode Island 02903. Plaintiff, PRI VI, LLC is a Rhode Island limited liability company with a principal place of business at 1140 Reservoir Avenue, Cranston, Rhode Island 02920. The Defendant, Edgar Paxson, is the duly appointed Building Official of the City of Providence. The Defendant, Samuel J. Shamoon (“Shamoon”), is the Acting Director of the City of Providence Department of Inspections and Standards (the “Department”). The Defendant, City of Providence, is a municipal corporation duly organized and existing under the laws of the State of Rhode Island.

Plaintiffs are the owners of the Lot located at 25 Broadway in Providence, Rhode Island. The Lot is described as Assessor’s Plat 26, Lot 349. On April 21, 2003 and again on April 24, 2003, the Department issued NOVs against the Plaintiffs claiming that the Building “is being razed without obtaining the necessary approvals and permits from Downcity Design Review Committee.” On or about May 7, 2003, the Plaintiffs appealed the NOVs to the Zoning Board of Review pursuant to the provisions of G.L. 1956 § 45-24-64 and Section 902.1 of the City of Providence Zoning Ordinance. By letter dated May 8, 2003, Shamoon advised the Plaintiffs that, “penalties provided by Section 806 of the Providence Zoning Ordinance will begin to accrue on May 21, 2003, unless application is made to the Downcity Review Committee for the demolition of the structures previously situated at 25 Broadway.”

The text of the Providence Zoning Ordinance designates the Downcity District as one of its overlay zoning districts. The Providence Zoning Ordinance provides that the design of the exterior of all buildings, open spaces and all exterior physical improvements in the Downcity District shall be regulated and approved in accordance with Section 502 of the Zoning Ordinance.

The text of the Providence Zoning Ordinance provides that the boundaries of the overlay zoning districts are established on the Providence Overlay Zoning District Maps, as the same are defined in Section 102 of the Providence Zoning Ordinance (the “Overlay District Maps”). The purported Overlay District Map for Plat 26 includes no legend or other designation for the “Downcity District.” The purported Overlay District Maps, which encompass the downtown area of Providence, generally, include no legend or other designation for the “Downcity District.” The purported Overlay District Maps, which encompass the downtown area of Providence, generally, do not include the words “Downcity District” anywhere on the maps. There is no legend on the Overlay District Maps, which encompass the downtown area of Providence, generally, that identifies the subject Lot as being within the Downcity District.

The provisions of the Providence Zoning Ordinance relating to a “Downcity District” were first added to the Providence Zoning Ordinance approved on June 29, 1994 and identified as Chapter 1994-24 (the “Ordinance”). The Overlay District Maps were not amended at such time to specifically reference the Downcity District on said maps. The Lot does not appear on the list of lots attached to the Ordinance, which list includes change of zoning and/or district designations to lots in the City.

Portions of the text of the Ordinance were amended in 1995. Section 101.7 was amended to provide that the purported Downcity District overlay zone’s boundary

“shall be the same as the D-1 District boundary as described in Section 101.3, generally encompassing the area bounded by Smith Street, North Main Street, South Water Street, Ship Street, Bassett Street, and Interstate 95. The D-1 zone north of Smith Street (bounded by Smith Street, Interstate 95, Orms Street, Charles Street and Mill Street) shall not be included in the DD Downcity District. [Ord. 1995-8].” Section 101.7 (1995).

The Lot is located within the boundaries as described generally above. Prior to the time of the enactment of the 1995 Ordinance, the City Council did not give written notice of the time, date and place and the nature and purpose of the proposed enactment to the then current owner of the Lot, Cumberland Farms, Inc.

The Overlay District Maps are located in the office of the City of Providence, Department of Planning & Development located at 400 Westminster Street in Providence, Rhode Island. Such office is approximately one-half (1/2) mile from the City Clerk’s Office located within City Hall. The City Clerk does not have physical possession of the Overlay Zoning District Maps.

Standard of Review

“Under the Uniform Declaratory Judgments Act, G.L. 1956 §§ 9-30-1 through 9 30-16, the Superior Court ‘shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.’ Section 9-30-1.” P.J.C. Realty v. Barry, 811 A.2d 1202, 1207 (R.I. 2002) (pursuant to § 9-30-1, the trial justice has the “authority to construe the obligation of the city to conform its ordinances with the comprehensive plan as required by the Rhode Island Zoning Enabling Act”). General Laws § 9-30-2 provides, in part, that

“[a]ny person . . . whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.” Section 9-30-2. Accordingly, when a land owner seeks a declaration that a zoning ordinance is “facially unconstitutional or in excess of statutory powers, or that the agency or board had no jurisdiction, ” the land owner may institute a declaratory judgment action. See Kingsley v. Miller, 120 R.I. 372, 374, 388 A.2d 357, 359 (1978) (citing Taylor v. Marshall, 119 R.I. 171, 376 A.2d 712 (1977).

The decision to issue a declaratory judgment lies within the trial justice’s discretion. Lombardi v. Goodyear Loan Co. 549 A.2d 1025, 1027 (R.I. 1988) (“decision to grant a remedy under the Declaratory Judgments Act is purely discretionary”) (citing Employers’ Fire Ins. Co. v. Beals, 103 R.I. 623, 628, 240 A.2d 397, 401 (1968)). Pursuant to the “liberalized provisions for joinder under Rules of Civil Procedure 18 and 20, ” a complaint seeking both injunctive...