Peter Scotti & Associates, Inc. v. Yurdin, 051320 RISUP, PC-2019-0283

Docket Nº:PC-2019-0283
Opinion Judge:STERN, J.
Party Name:PETER SCOTTI & ASSOCIATES, INC.; BUILDING BRIDGES PROVIDENCE; FRANK MUHLY; and ANDREW MEYER v. SETH YURDIN, HELEN ANTHONY, NIRVA LaFORTUNE, NICHOLAS J. NARDUCCI, JR., JO-ANN RYAN, MICHAEL CORREIA, JOHN J. IGLIOZZI, JAMES TAYLOR, CARMEN CASTILLO, LUIS A. APONTE, MARY KAY HARRIS, KATHERINE KERWIN, RACHEL MILLER, DAVID A. SALVATORE, and SABINA MAT...
Attorney:For Plaintiff: Armando E. Batastini, Esq.; William Wynne IV, Esq. For Defendant: William Landry, Esq.; Patrick J. McBurney, Esq.; William E. O'Gara, Esq.; Mark W. Freel, Esq.; Samantha M. Vasques, Esq.
Case Date:May 13, 2020
Court:Superior Court of Rhode Island
 
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PETER SCOTTI & ASSOCIATES, INC.; BUILDING BRIDGES PROVIDENCE; FRANK MUHLY; and ANDREW MEYER

v.

SETH YURDIN, HELEN ANTHONY, NIRVA LaFORTUNE, NICHOLAS J. NARDUCCI, JR., JO-ANN RYAN, MICHAEL CORREIA, JOHN J. IGLIOZZI, JAMES TAYLOR, CARMEN CASTILLO, LUIS A. APONTE, MARY KAY HARRIS, KATHERINE KERWIN, RACHEL MILLER, DAVID A. SALVATORE, and SABINA MATOS, in their official capacity as Members of the City Council of the CITY OF PROVIDENCE; THE I-195 REDEVELOPMENT DISTRICT; and JASON FANE

No. PC-2019-0283

Superior Court of Rhode Island, Providence

May 13, 2020

For Plaintiff: Armando E. Batastini, Esq.; William Wynne IV, Esq.

For Defendant: William Landry, Esq.; Patrick J. McBurney, Esq.; William E. O'Gara, Esq.; Mark W. Freel, Esq.; Samantha M. Vasques, Esq.

DECISION

STERN, J.

In this challenge to an Amendment of the Zoning Ordinance of the City of Providence (Ordinance) implemented by the City Council of the City of Providence (City Council), Plaintiffs Peter Scotti & Associates, Inc. and Building Bridges Providence (Plaintiffs) have filed a Motion for Judgment upon Stipulated Facts.1 In response, Defendant Jason Fane (Mr. Fane) has filed a Cross-Motion for Judgment (or Summary Judgment) on Stipulated Facts. The City Council filed a similar motion and also joined in Mr. Fane's arguments. Jurisdiction is pursuant to G.L. 1956 §§ 45-24-71 and 9-30-1, et seq.

I

Facts and Travel

In 2011, the General Assembly declared that the surplus, state-owned land that became available following the relocation of Interstate Route I-195 would be transferred to the I-195 Redevelopment District, so-called, which is a legislatively-created district designed to put such land to beneficial use. See P.L. 2011, ch. 245, § 3, and P.L. 2011, ch. 267, § 3.2 To achieve this objective, the General Assembly enacted G.L. 1956 §§ 42-64.14-1, et seq., entitled The I-195 Redevelopment Act of 2011, and created the I-195 Redevelopment District Commission (Commission) to "carry out and effectuate" the Act. Sections 42-64.14-1; 42-64.14-6; and 42-64.14-7. The I-195 Redevelopment District also is a Defendant in the instant matter.

The following facts mostly are gleaned from the Stipulated Facts submitted by the parties:3

The I-195 Redevelopment District owns property in Providence located at Assessor's Plat 20, Lot 397, also known as Parcel 42, and an adjacent property located at Assessor's Plat 20, Lot 399, also known at Parcel P4. (Stip. Facts ¶ 5.) Parcel P4 is situated along the westerly side of the Providence River. Id. ¶ 6. The Commission has the authority to adjust the boundaries of Parcel P4, provided that the property retains 186, 186 square feet for a park or park supporting activity. Id. ¶¶ 6 and 8; Section 42-64.14-5(a).

The Fane Organization submitted a proposal to purchase Parcel 42 and a portion of Parcel P4 for purposes of developing a high-rise residential building not to exceed six hundred feet in height and to be named "Hope Point" a/k/a "Fane Tower." (Stip. Facts ¶ 7.) At the time, both parcels were in a D-1-100 zone, which meant that the maximum permissible height of a building was one hundred feet (with additional height to the extent bonuses were earned). Id. ¶ 11.

The Commission agreed to adjust the boundaries of Parcel P4 and to subdivide Parcel 42 into two parcels separated by a pedestrian walkway and bicycle path. Id. ¶ 9. The northerly parcel would be combined with a portion of Parcel P4 and would contain the proposed Fane Tower (Subject Property). Id. The remainder of Parcel P4 would continue to be designated as park space. Id. ¶ 10.

Considering that the proposed building exceeded the maximum allowable height, on April 18, 2018, the Fane Organization, Mr. Fane, and the I-195 Redevelopment District jointly petitioned the City Council for an Amendment of the Ordinance to add a height sub-district to the existing seven height sub-districts in the area. Id. ¶ 16 and Ex. E. at 3. The Petition consisted of the proposed Amendment and an attached map. (Ex. E.) The proposed Amendment would permit a maximum building height of six hundred feet and only would apply to the Subject Property. (Ex. E. at 4.) The Amendment also would permit the Downtown Design Review Committee to waive height, massing, and transition lines for buildings. Id. at 3-4.

On April 25 and May 15, 2018, the City Plan Commission (CPC) conducted public hearings on the Petition. (Stip. Facts ¶ 18.)4 The CPC also received a report from the City of Providence Planning Department (Planning Department) recommending approval of the Amendment as being consistent with the City's Comprehensive Plan and with the City's zoning goals. (Stip. Facts ¶ 19; Ex. G.) The CPC disagreed with the Planning Board's recommendation; instead, it found that the proposed Amendment was inconsistent with certain provisions of the Comprehensive Plan and recommended that the City Council deny the application. (Stip. Facts ¶ 20; Ex. H.) In doing so, it impliedly rejected the Planning Department's recommendation. Id.

On July 18, 2018, the City Council's Ordinance Committee conducted a public hearing to consider the Amendment. (Stip. Facts ¶ 21; Ex. I.) At the conclusion of the hearing, the Ordinance Committee voted to recommend that the City Council deny the Amendment. Id. When the matter came before the City Council, the City Council referred the matter back to the Ordinance Committee. (Stip. Facts ¶ 25; Ex. J.)

On September 26, 2018, the Ordinance Committee voted to conduct a public hearing on the Amendment. Id. ¶ 23. Thereafter, it conducted the hearing on October 22, 2018. Id. ¶ 24, Ex. L. The hearing included a presentation from the Fane Organization and public comment. Id. As part of its presentation, the Fane Organization submitted its preliminary design concept accompanied by various illustrations. (Stip. Facts ¶ 25; Ex. M.)

At a second public hearing on November 8, 2018, the petitioners submitted an amended Petition, entitled Substitute A, which added proposed findings of fact to the original Petition regarding the Amendment's consistency with the Comprehensive Plan. (Stip. Facts ¶ 26; Ex. N.) Thereafter, a member of the Ordinance Committee made "a motion to attach substitution A to the ordinance." (Stip. Facts ¶ 26; Ex. O; Meeting Minutes, at 1.) The Vice-Chairman expressed concern about its admission, to which the Chairman stated: "It is explanatory and does not change the structure of the actual ordinance." Ex. O; Meeting Minutes, at 2. The Vice-Chairman then observed that the public had not been given an opportunity to comment on the document. Id. The Chairman responded: "If there are questions that have to be addressed[, ] that can be done before the process is complete." Id.

The Vice-Chairman then stated: "So, if I heard correctly, the proposal goes along with the comprehensive plan or meets the needs of the comprehensive plan? Isn't that the core of the issue here, if the project is consistent with the comprehensive plan or not? Zoning says it's not and that there is a height restriction of 100 feet in that area. What we are considering tonight is 600 feet, which by definition is inconsistent with zoning, and zoning comes from the comprehensive plan. I do not understand how we can pass something that is not consistent with the comprehensive plan? I do not see how we can make a conclusion that this proposal is consistent with the comprehensive plan, when it's obviously not." Id. at 3.

In response, a Councilwoman stated: "The document before us makes a number of points consistent with the comprehensive plan. It is not referencing the height. This came out of the public hearing. If I recall, the City Planning staff recommended that the matter was consistent with the comprehensive plan to the CPC and recommended approval, and that is how this matter started. Our job is to make sure that this is consistent with the comprehensive plan. The petition before us today expresses that. I make a motion to approve." Id. at 3.

Thereafter, the Ordinance Committee voted to approve the attachment of Substitute A. The minutes then concluded with the following statement: "Further discussion was held relative to the foregoing matter." Id. at 4. The Ordinance Committee voted to recommend that the City Council approve the Petition, as amended. Id.; Stip. Facts ¶ 27.

On November 15, 2018, the City Council voted to approve the zoning Amendment at the first reading by a vote of eight to five, with two abstentions. (Stip. Facts ¶ 28; Exs. P and O.) At a special meeting on November 20, 2018, the City Council conducted a second reading and then voted to approve the Amendment by a vote of nine to five, with one abstention. (Stip. Facts ¶ 29; Exs. R and S.) On November 30, 2018, the Mayor for the City of Providence vetoed the Amendment. (Stip. Facts ¶ 30.) Thereafter, on December 13, 2018, the City Council voted to override the Mayor's veto and approved the Amendment by a vote of ten to three, with one abstention. (Stip. Facts ¶ 31; Exs. T and U.)

Pursuant to § 45-24-71, Plaintiffs timely filed a Complaint in this Court on January 11, 2019, asserting that the Amendment did not conform to the City's Comprehensive Plan and that it constituted illegal spot zoning. (Compl.)[5] In addition, Plaintiffs seek declaratory relief under § 9-30, entitled the Uniform Declaratory Judgments Act. Id. They filed an Amended Complaint on January 25, 2019.

On September 6, 2019, Plaintiffs filed a Motion for Judgment upon Stipulated Facts. Thereafter, on October...

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