Bergman v. City of Providence Board of Appeals, 050820 RISUP, PC-2018-4604

Docket Nº:C. A. PC-2018-4604
Opinion Judge:TAFT-CARTER, J.
Party Name:JOHN D. BERGMAN, Appellant, v. The City of Providence Board of Appeals and Mark Greenfield, Arthur Strothers, Scott Wolf, Helen Anthony, Ian Baldwin, and Victor Capellan, in their capacities as members of the City of Providence Board of Appeals and The City of Providence City Plan Commission, and Christine West, Michael Gazdacko, Harrison ...
Attorney:For Plaintiff: John J. Garrahy, Esq. For Defendant: Lisa Dinerman, Esq.; Joelle C. Rocha, Esq.
Case Date:May 08, 2020
Court:Superior Court of Rhode Island

JOHN D. BERGMAN, Appellant,


The City of Providence Board of Appeals and Mark Greenfield, Arthur Strothers, Scott Wolf, Helen Anthony, Ian Baldwin, and Victor Capellan, in their capacities as members of the City of Providence Board of Appeals and The City of Providence City Plan Commission, and Christine West, Michael Gazdacko, Harrison Bilodeau, Joseph Elliot, Jules Opton-Himmel, Luis Torrado, and Nicole Verdi, in their capacities as Members of the City of Providence City Plan Commission and 1209 Westminster Street, LLC and Michael Lemoi, Appellees.

C. A. No. PC-2018-4604

Superior Court of Rhode Island, Providence

May 8, 2020

For Plaintiff: John J. Garrahy, Esq.

For Defendant: Lisa Dinerman, Esq.; Joelle C. Rocha, Esq.



Plaintiff John Bergman (Plaintiff, Appellant, or Bergman), appeals a June 13, 2018 Decision (Decision) of the Zoning Board of Appeals (ZBA or Board) of the City of Providence (City), approving the request of Defendant Michael Lemoi (Defendant, Applicant, or Lemoi) for a dimensional adjustment and parking adjustments for his property at 1292 Westminster Street in Providence, Rhode Island (subject property). Jurisdiction is pursuant to G.L. 1956 § 45-23-71.


Facts and Travel

Lemoi, owner of the subject property, and Eric Zuena (Zuena), Managing Principal and Project Architect of ZDS Inc., submitted a Major Land Development Project Application1(Application) to the City Plan Commission of Providence (CPC) on July 26, 2017. See § 45-23-39(b). The application was signed by Mr. Lemoi. Both Lemoi and Zuena (Applicants) proposed a demolition of a single-story masonry building and the construction of a mixed-use five story building-approximately 7220 square feet of commercial space on the first floor and 35, 280 square feet of residential space equaling a total of 35 dwellings on floors two through five- totaling 42, 500 square feet. In addition to the demolition, the Applicants requested two dimensional variances seeking relief from §§ 502 and 1401 of the City of Providence Ordinance: a dimensional (height) adjustment of approximately 9 additional feet from the existing 50-foot height restriction, and an adjustment for a reduction in the amount of required parking spaces. The subject property is located in a C-2 (Commercial) District under a Historic overlay.2

On August 15, 2017, the CPC held a duly noticed public meeting and "voted to grant Master Plan approval, which included a height adjustment but deferred to the preliminary plan stage, the Applicant's request for a parking adjustment." Pl.'s Compl. ¶ 4; see also City's Mem. Ex. 8. According to the Zoning Ordinance, the required amount of parking spaces is calculated to 43 spaces; however, the Applicants requested a reduction in the number of parking spaces due to the limited amount of square footage remaining on the property after proposing to build the 5-story development. See Tr. 16:16-18, Aug. 15, 2017. The Applicant requested a reduction of 22 spaces. Id.

Mr. Lemoi did not attend the August 15, 2017 hearing and instead submitted an affidavit on August 21, 2018, confirming he is the principal of the entity that owns the subject property. Lemoi Aff. ¶ 1. Lemoi confirmed he received approvals from the CPC and the Historic District Commission (HDC) to construct a five-story mixed use building on the subject property. Id. ¶ 2. Appellant missed the deadline to file an appeal of the Master Plan approval. Despite having missed the deadline to appeal Master Plan approval, on November 10, 2017, Appellant filed a complaint in Superior Court against Appellee Michael Lemoi, the City of Providence, the Zoning Board, and Eric Zuena through Civil Action PC-2017-5408. The case was subsequently dismissed with prejudice on April 12, 2018. Following the receipt of Master Plan approval, the Applicants proceeded to demolish the one-story structure formerly on the subject property. Id. ¶¶ 3-4.

The proposal for the parking adjustment was readdressed before the CPC at the Preliminary Plan hearing on November 14, 2017. Before the Preliminary Plan hearing, on November 3, 2017, the Applicants submitted a waiver request to the CPC to waive five specific technical reports (grading and utility plan, drainage plan, erosion and sediment control plan, site maintenance plan, and detailed landscaping plan with photometric analysis) required for the Preliminary Plan stage and to submit the documents at the final stage of review. At the hearing on November 14, 2017, the CPC voted to deny the waiver requests and further deferred the parking adjustment request upon submission of the five technical reports at the continued hearing date in January.

The parking adjustment matter was originally continued from November 14, 2017 to January 16, 2018, giving Mr. Lemoi the opportunity to further address parking concerns. At the January 16, 2018 Preliminary Plan hearing, the Applicants again requested an additional continuance until February 20, 2018. At the February 20, 2018 hearing, four of the five technical reports were submitted to the CPC, and the CPC's administrative officer issued a Certificate of Completion subject to the CPC's approval of the remaining waiver request for the one outstanding technical report.

At the final Preliminary Plan hearing on February 20, 2018, the CPC addressed the proposed parking at 334 Carpenter Street. Accompanying the Applicant's proposal was a compliance letter dated February 13, 2018 from Jeffrey L. Lykins, the Director of Inspection and Standards for the City of Providence (Lykins Letter). At the hearing, Mr. Robert Azar, the City's Deputy Director of Planning and Development, spoke in favor of the project. Tr. 2, Feb. 20, 2018. He stated that at the last meeting, the CPC did not approve or reject Applicant's request for a parking adjustment and continued it to January 16, 2018. Id. At that hearing, the matter was continued again to February 20, 2018 to which "[t]here was no further notice . . . because [such was] . . . sent for the December meeting" and "the request for a parking adjustment is significantly less . . . [as] applicant has acquired a piece of property within close proximity to 1292 Westminster." Id. at 3. Azar also explained Appellees were seeking fewer waivers, having addressed "submission of all the required engineering reports . . . grading, utility, drainage, erosion and sediment control, site maintenance" and still sought waivers for permits "from the Narragansett Bay Commission [NBC] and the Department of Environmental Management [DEM]" to be submitted prior to the final plan. Id. at 3-4.

Next, Brian King (King), a civil engineer for Crossman Engineering (Crossman), addressed the CPC regarding the technical submissions of the subject property. Id. at 7. First, King discussed the general site plan and proposed improvements including the new parking lot and new sidewalks. Id. He stated the parking area has "22 parking spaces . . . [with] a compact car space and an [Americans with Disability Act] ADA space in that 22[, ]" and the "remaining 20 are standard spaces[.]" Id. King noted the sidewalk next to Powhattan Street was narrower than normal and Crossman has "been working with the City engineer to provide an additional foot for an easement [for] . . . a more passable 4-foot wide sidewalk" and confirmed the sidewalk would be ADA compliant. Id. at 8-9. King addressed the landscape plan and observed that the project satisfies "the shade requirements from the City. Id. at 10. The lighting plan "has been done in accordance with the City requirements" and "the Illuminating Engineering Society recommendations for parking in pedestrian areas." Id. Next, King discussed the stormwater management plan and explained "the infiltration system . . . is designed to infiltrate a storm event from a one-year to a one-hundred-year event." Id. at 11-12. He stated "all of the building . . . runoff . . . will be infiltrated" and explained "[t]here will be no outflow to the roadway . . . [and] [t]he only area that is not collected would be the perimeter[, ]" which is "mostly landscaping." Id. at 12. Mr. King stated Crossman "submitted plans to" NBC "for the stormwater review and also the sewer application . . . [and] to DEM" and "sent plans to the City engineer for his review." Id. He stated the "system actually exceeds their requirements for NBC, in our . . . professional opinion, for both DEM and NBC." Id. at 13.

Zuena spoke next regarding the proposed off-site parking at 334 Carpenter Street. Id. at 15. The 334 Carpenter Street parcel is located in an R-3 zone (Residential District) with 9851 square feet of land, improved with a 2250 square foot non-conforming Auto Repair shop. See Lykins Letter. The walking distance from the subject property to the off-site parking is "355 feet, then another 140 feet right to the entry point of 334 Carpenter." Tr. 17, Feb. 20, 2018. Pursuant to the City of Providence's Zoning Ordinance, the existing auto repair shop "requires 7 spots for that use, leaving an additional 16 spots." Id. at 14. Zuena explained two options for creating more parking at 334 Carpenter. Zuena provided the option of requesting a 5-space parking reduction for the auto repair shop by "restriping the existing lot and using it as it is used today, as an auto body repair, allocating the 16 spaces over to 1292." Id. at 16. Zuena then described another option of improving the lot and bringing the development up to conformance with the code, thus requesting a 6-space parking reduction. Id. Azar noted that 334 Carpenter Street is "unsightly, to say the least," and provided a recommendation that "that site be brought into 100 percent compliance with all of the landscaping and fencing regulations for the...

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