Krikor S. Dulgarian Trust v. Zoning Bd. of Review of Providence
| Decision Date | 22 August 2013 |
| Docket Number | C.A. No. PC-2012-5114 |
| Parties | KRIKOR S. DULGARIAN TRUST v. ZONING BOARD OF REVIEW OF THE CITY OF PROVIDENCE, MEETING STREET ASSOCIATES, LLC, and FLATBREAD PROVIDENCE, INC. |
| Court | Rhode Island Superior Court |
DECISION
This matter is before the Court on appeal from a decision of the Zoning Board of Review of the City of Providence (Board), which approved an application by Flatbread Providence, Inc. (Flatbread) and Meeting Street Associates, LLC (Meeting Street Associates) for a special use permit. That special use permit authorized Flatbread both to increase the seating capacity of the proposed restaurant from 150 to 191 and to reduce the number of off-site parking spaces provided to a total of 17. The Krikor S. Dulgarian Trust (Dulgarian Trust), a real estate trust that owns nearby property, appealed. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
Meeting Street Associates is a limited liability corporation in Rhode Island, which owns and operates 236 Meeting Street and 157 Cushing Street, adjoining lots also identified as Assessor's Plat 13, Lots 31 and 32 (the Property). (Defs.' Ex. A, Resolution No. 9684, Board, Sept. 13, 2012.) These two adjoining lots, which are located in aGeneral Commercial C-2 Zone, make up approximately 13,500 feet and contain a two-story building. Id. The building on the Property fronts Meeting Street; the parking lot on the Property is accessible from Cushing Street. Id.
Although the building was originally used as a commercial auto and truck garage, in 1987 it was converted to a retail mall. (Board Tr. 44:3-11, May 14, 2012.) Then, in 1993, Meeting Street Associates received a special permit to use the 7700 square foot second story as a restaurant with 112 seats for food and beverage service and 38 seats for waiting. Id. at 44:12-20. In 1994, the Board permitted a probationary expansion—allowing the restaurant to provide full service to 120 seats and all service except entrees to another 30 seats. Id. at 44:21-45:4. That expansion of the special use permit was made permanent in 1997. Id. at 45:2-8.
Around 2005 or 2006, the restaurant occupying the second story of the building relocated. Id. at 45:8-13. Since that time, the second story has remained vacant. Id. According to Joseph Mardo (Mardo), a principal of the owner of the Property, part of the reason why the space has been difficult to lease is that the 7700 square feet is not easily divisible into smaller spaces and is awkwardly shaped—the space is 50 feet wide by 156 feet deep. Id. at 55:10-22.
John Meehan (Meehan), part-owner of Flatbread restaurants, expressed an interest in leasing the second floor of the building, contingent on an increase in the indoor seating capacity. Meeting Street Associates and Flatbread (collectively, Applicants) filed an application with the Board. In that application, Applicants sought a special use permit under Section 303, Use Code 57.1 of the Zoning Ordinance (the Ordinance) to increase the interior seating capacity within the existing restaurant from 150 to 191 seats;additional outdoor seating proportional to the grant of additional indoor seating; and a special use permit under Sections 303, Use Code 57.1, 703.2, and 401.1 of the Ordinance for a reduction in the total number of on-site parking spaces.
On May 14, 2012, the members of the Board made a site inspection of the Property and the surrounding properties. Further, they took notice of the recommendation submitted by the Department of Planning and Development requesting that relief be granted subject to the conditions that "outdoor seating shall be limited to 30 seats and the applicant shall install a planting strip between the parking area and the public right of way." In addition, on May 14, 2012, the Board held a public hearing. At that hearing, Applicants presented the history of the Property and the testimony of Joseph Mardo, John Meehan, Peter Casale, Joseph Lombardo, James Cronan, and Tom Sweeney. (Board Tr. 42:19-43:2, May 14, 2012.)
Mardo, a principal of the owner of the Property, testified that the 7700 square foot space has been difficult to lease, and that it has remained vacant since the original restaurant closed. Id. at 54:21-55:12. He further testified that, although there has been some interest in the space, that interest has been primarily by smaller tenants who have been looking for 2000-3000 square foot spaces. Id. at 55:10-19. Yet, because of the space's shape, and because the landlord would not be able to subdivide the spaces while providing two means of egress, the landlord has been unable to fill the space. Id. at 55:19-25.
The Applicants also presented the testimony of John Meehan, co-owner of the Flatbread Company. Id. at 58:19-67:20. Meehan described the concept of the restaurant and described the clientele of other Flatbread restaurants. Id. at 60:10-17. He noted thatin other locations between 80 and 90 percent of the clientele were local and lived within a mile of the restaurant. Id.
Further, Peter Casale (Casale), an expert witness in zoning code and building code matters, testified that due to the unique structure, size, and construction of the building, the current space "really has to be used as one tenant for the entire space." Id. at 68:4-10, 70:10-13. Casale testified that under the building and fire codes, the size of the building necessitates two means of egress for any tenant on the second story. Id. at 69:9-23. According to Casale, the layout of the building renders the second floor nearly undividable, and it would not be possible, due to the narrowness of the building, to create multiple spaces for smaller tenants. Id. at 69:24-25, 70:1-9. Casale additionally noted that the rated capacity under the building or fire code is far under the seating requested. Id. at 70:19-71:5. The maximum allowable occupant loading with the existing fire protections would be approximately 300 people. Id. Casale further opined, based on his thirty plus years of experience in the area, that "parking plus or minus is really moot." Id. at 71:21-25. He noted that Thayer Street experiences a great deal of foot traffic. Id. at 72:1-10.
Applicants also presented the testimony of Joseph Lombardo (Lombardo), who was accepted without objection as a land use expert. Id. at 75:9-19. Lombardo testified that the granting of the special use permit would be consistent with the Comprehensive Plan. Id. at 80:9-21. Lombardo noted that the Property is zoned as C-2, which is intended for commercial areas serving citywide needs and characterized by traditional pedestrian-oriented uses. Id. at 76:11-12, 77:7-9.
In addition, James Cronan (Cronan), a professional traffic engineer, who was accepted as a traffic expert without objection, testified that the special use permit, if granted, would not substantially change the situation with traffic and parking in the area. Id. at 81:4-82:20. Cronan opined that the proposed restaurant would have little impact on the neighborhood because of the high percentage of pedestrian traffic on Thayer Street. Id. at 82:13-20. Specifically, he noted that "most of the customers will be college students, neighborhood families, people living nearby that would walk." Id.
Finally, Applicants presented the testimony of Thomas Sweeney (Sweeney), who was recognized as an expert without objection. Id. at 85:3-22. Sweeney stated that it was his opinion that the granting of the special use permit would not have any injurious impact on the surrounding properties or their value. Id. Rather, Sweeney stated the use would be consistent with the Property's historical use and would positively impact the neighborhood and its property values, as the proposed use would fill in a vacant property that has not been occupied for approximately six years. Id. at 85:23-86:4.
After presentation of the Applicants' witnesses, Grant Dulgarian (Dulgarian), the trustee of the Dulgarian Trust, testified. Id. at 89:14-98:8. He opined that granting the application would be detrimental to the existing businesses on Thayer Street. Id. at 90:2-8. He stated that, in his personal experience, parking on Thayer Street was problematic. Id. at 93:1-11. He also introduced the College Hill parking task force findings and recommendations from April 2008, in which various stakeholders noted that "[t]here is a significant shortage of short-term parking spaces within a reasonable walking distance to support Thayer Street businesses based on industry standards for on-street and off-street parking." Id. at 94:1-22. Although the report noted that Thayer Street derives asignificant portion of its business from students and employees within walking distance, it noted that patrons and business owners have long complained of inadequate parking. Id. at 94:17-95:4.
William Touret (Touret) also testified in opposition to the grant of the special use permit. Touret opined that the restaurant would attract people from a wide area, and that the effect would be more noise and danger to the surrounding residential area. Id. at 100:3-25. Further, Touret stated that the lack of parking in the area is already a hardship on merchants and residents. Id. at 101:7-23.
The Board additionally heard from Barbara Harris (Harris), a nearby property owner. Harris objected to the grant of a special use permit, noting that the nearby residential area would be bothered by the outdoor dining and the strain on limited parking. Id. at 107:2-25. She further disagreed with the earlier testimony that the clientele of Thayer Street is primarily pedestrian. Id. at 109:1-4. Notwithstanding her disagreement with the characterization of the pedestrian culture of Thayer Street—and her admission that she typically walks to Thayer Street, rather than drives—Wolf, a Board member, strenuously disagreed with her. Id. at 109:1-25.
After considering the application, the testimony presented, the record before the Board,...
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