Dulgarian v. Zoning Bd. of Review of City of Providence

• Decision Date: 05 January 2010
• Docket Number: C. A. PC-2008-4182
• Court: Rhode Island Superior Court
• Parties: G. DALE DULGARIAN, in his Capacity As Trustee of the Krikor S. Dulgarian Trust of December 22, 1960 v. THE ZONING BOARD OF REVIEW OF THE CITY OF PROVIDENCE, MYRTH YORK, SCOTT WOLF, ARTHUR V. STROTHER, MICHAEL R. EGAN and DANIEL W. VARIN, in their capacities as Members of said Zoning Board, THAYER REALTY TRUST, and SHARK SUSHI BAR & GRILL

G. DALE DULGARIAN, in his Capacity As Trustee of the Krikor S. Dulgarian Trust of December 22, 1960 v. THE ZONING BOARD OF REVIEW OF THE CITY OF PROVIDENCE, MYRTH YORK, SCOTT WOLF, ARTHUR V. STROTHER, MICHAEL R. EGAN and DANIEL W. VARIN, in their capacities as Members of said Zoning Board, THAYER REALTY TRUST, and SHARK SUSHI BAR & GRILL

C. A. No. PC-2008-4182

Superior Court of Rhode Island

January 5, 2010

DECISION

DARIGAN, J.

Before this Court is an appeal from a decision of the Zoning Board of Review of the City of Providence ("Board") which granted Thayer Realty Trust ("Thayer Realty") and Shark Sushi Bar & Grill ("Shark") (collectively, "Applicants") a dimensional variance for parking relief in connection with the alteration of a commercial space to be used as a restaurant. Appellant G Dale Dulgarian, in his capacity as Trustee of the Krikor S Dulgarian Trust of December 22, 1960 ("Appellant" or "Mr. Dulgarian"), seeks reversal of the Board's decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, the Court affirms the Board's decision.

I Facts and Travel

Thayer Realty is the owner of real property located at 275 Thayer Street in Providence, Rhode Island, and identified as Providence Tax Assessor's Plat 13, Lot 29 (the "Property"). The approximately 4898 square foot property is located within a C-2 district and is occupied by a 2370 square-foot one-story building utilized for commercial space.^1[] The Providence Zoning Ordinance (the "Zoning Ordinance") defines a C-2 district as general commercial zone "intended for commercial areas that serve Citywide needs for retail, service and professional office establishments." Zoning Ordinance § 101.2. A restaurant less than 2500 square feet in size is permitted in a C-2 district. Id. at § 303, Use Code 56.1. Shark leased the commercial building on the Property, intending to renovate the entire 2370 square-foot structure in order to create a legally permissible 131-seat restaurant.

The Property is already recognized as legally nonconforming by parking. This status exempted the Property from supplying five parking spaces otherwise required under § 703.2 of the Zoning Ordinance. See Zoning Board of Review Resolution No. 9307, May 28, 2008 (the "Decision"). The expansion or intensification of a building or structure nonconforming by parking is permitted under the Zoning Ordinance, provided that additional parking is supplied in accordance with applicable parking requirements. Zoning Ordinance § 205.1. Pursuant to § 703.2 of the Zoning Ordinance, a restaurant in a C-2 zone requires one parking space per every four seats. See § 703.2, Use Codes 56.1 and 57.1. Thus, thirty-three parking spaces would be required for a restaurant with Shark's proposed seating capacity. Because the Property was already exempt from five parking spaces, the planned restaurant would require twenty-eight spaces.

On February 6, 2008, Shark and Thayer Realty submitted an Application for Variance or Special Use Permit (the "Application") to the Board, seeking relief from the additional parking requirements under § 702.3 of the Zoning Ordinance. (Compl. at ¶ 6.) Specifically, Applicants sought parking relief for all 28 required spaces because the building was constructed—prior to the existence of the Zoning Ordinance—up to the property line and without any parking. (Tr. at 52.) Prior to a hearing before the Board, the Department of Planning and Development (the "Planning Department") reviewed the Application and found the Applicants' request for relief to be excessive. (Planning Department Recommendation, April 22, 2008.) The Planning Department recommended that a variance be approved for half of the amount of spaces requested, and that the Applicants be required to demonstrate arrangements for the additional spaces required. Id.

On April 22, 2008, the Board held a duly noticed public hearing during which the Application was considered. (Compl. at ¶ 7.) Counsel for the Applicants stated that Shark proposed the establishment of a 131-seat "upscale sushi and grill bar" at the Property to be called Shark Sushi Bar & Grill. (Tr. at 50-51.) Counsel further acknowledged that due to the construction of the building to the property line, in conjunction with the known parking "issues" along the Thayer Street business area, the Applicants were requesting a variance from the parking requirements under the Zoning Ordinance.^2[] (Tr. at 51-52.) The Applicants also introduced a witness, Mr. Peter Casale, whom the Board recognized as an expert.^3[] (Tr. at 54.) Mr. Casale testified as to the lack of parking available at the Property, the Applicants' efforts to obtain noncontiguous parking, and the general characteristics of the Thayer Street business area. (Tr. at 55-65.)

Several other individuals addressed the Board regarding the Application. Mr. Raymond Hugh, on behalf of Shark, described the general renovations being conducted at the Property and estimated his capital investment in the project to be "well over $700,000." (Tr. at 67.) Mr. Hugh also predicted that the majority of patrons of the restaurant would be college students already located within the vicinity of Thayer Street. (Tr. at 66.) Mr. Joe Dalompa, the contractor for the restaurant project, testified in general terms about the work already conducted to convert the commercial space into the restaurant. (Tr. at 84.) Mr. Dalompa estimated the cost of the renovations to be "around $350,000 to $400,000."

Nearby business owners also testified at the hearing. James Levitt, the owner of a Thayer Street retail shop called "Details," testified that in his opinion the proposed restaurant would have a beneficial effect on the parking situation along Thayer Street. (Tr. at 82.) Mr. Levitt expected the restaurant to "greatly lessen the parking that was generated by the demand of Dunkin' Donuts," and that "since Dunkin' Donuts [has] closed, [there has been] more than ample parking in the morning." Id. Also in support of the Application was Andrew Miprelis, owner of the nearby Paragon restaurant. Mr. Miprelis indicated that he planned to expand his establishment in the near future, and would expect similar parking relief as that requested by the Applicants. (Tr. at 82-83.)

Several individuals testified against the Applicants' request for zoning relief. Antoinette Breed, a 30-year resident of the College Hill area,^4[] opposed the Applicants' request for a dimensional variance for relief from parking. Ms. Breed was particularly concerned with the precedent such a variance would set in the neighborhood, leading to further overcrowding and congestion in the College Hill residential area in which Thayer Street is located. (Tr. at 69-70.) In addition, Ms. Breed believed that the Property had "no identifiable unique characteristics and that the hardship from which the Applicants [sought] relief [was] due to the general characteristic[s] of the surrounding area." (Tr. at 70.) Ms. Breed also contended that granting the variance would confer upon the Applicants an unfair advantage, alter the general characteristics of the surrounding area, and impair the intent of the Zoning Ordinance and the City's Comprehensive Plan. (Tr. at 70.)

G. Dale Dulgarian, the Appellant in the instant matter, also testified against the Application during the hearing. Mr. Dulgarian expressed concern about further increasing the demand for off-street parking and the discouraging effect said increase would have on potential Thayer Street patrons. (Tr. at 72.) Particularly, Mr. Dulgarian argued that "Thayer Street will lose the vibrancy it currently has" as a result of continued increases in demand for parking. Id. In addition, Mr. Dulgarian testified in regard to a commissioned study released just prior to the hearing that addressed parking and traffic concerns in the Thayer Street commercial area.^5[] (Tr. at 71-77.) Other concerns Mr. Dulgarian articulated included that the proposed restaurant would be a "destination restaurant" and that Thayer Street does not require another food establishment. (Tr. at 77.) Instead, Mr. Dulgarian suggested that another type of establishment be considered for the Property in order to promote "balance" in the area. (Tr. at 80.)

The Board also read into the record two letters submitted in opposition to the Application: one written by Mr. Jerry West, an abutter, and one by the College Hill Neighborhood Association. Both letters addressed the existing parking congestion in the Thayer Street commercial district and how approval of the requested variance would exacerbate the parking shortage problem. (Tr. at 170-72.)

At the conclusion of the April 22, 2008 hearing, the Board voted unanimously to approve the requested dimensional variance. The Board's written decision, Resolution 9307, filed on May 28, 2008, granted the Applicants a dimensional variance for relief from the parking requirements of § 703.2 of the Zoning Ordinance. In doing so, the Board relieved the Applicants from providing 28 off-street parking spaces. Mr. Dulgarian timely appealed the decision to this Court on June 17, 2008.

II Standard of Review

Section 45-24-69 vests the Superior Court with jurisdiction to review a zoning board's grant of an application for a variance. Section 45-24-69(d) provides:

The [Superior] 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,

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