Weiss v. Zoning Board of Review
| Decision Date | 26 October 2012 |
| Docket Number | C.A. PC 09-2814 |
| Parties | JAMES WEISS v. THE ZONING BOARD OF REVIEW for the CITY OF PROVIDENCE, ET AL |
| Court | Rhode Island Superior Court |
DECISION
In this administrative appeal, Appellant James Weiss challenges an April 27, 2009 decision of the Zoning Board of Review of the City of Providence. The decision denied his application for a dimensional variance from Providence Zoning Ordinance § 704.2 to add four parking spaces to the front yard of his twelve-unit apartment building. He also asks this Court grant him reimbursement for expenses associated with this appeal pursuant to the Equal Access to Justice Act, R.I. Gen. Laws 1956 § 42-92-3. For the reasons set forth in this Decision, this Court affirms the decision of the Zoning Board and denies Appellant's claim for expense reimbursement.
The subject property is located at 153 to 159 Medway Street in Providence, Rhode Island and identified on Tax Assessor's Plat 15 as lots 150 and 167 (the "Property"). (Hr'g Tr. at 38.) The two lots contain a total of 7405 square feet. Id. A twelve unit residential apartment building (the "structure") with a footprint of 2720 square feet sits on the Property. (Tr. at 23, 38.) A small one car garage occupies the southwest corner of the rear lot. (Tr. at 38.) The structure and garage sit at a slight elevation, and a driveway slopes downward from the garage to Medway Street. (Tr. at 38-39.) The dwelling structure and the garage close off a small rear yard. (Tr. at 42.) Prior to 2006, the driveway provided the only available parking space for occupants of the apartment building, with room for three to four small cars parked in tandem.[1] (Tr. at 23, 39.) Because of the configuration of the lot, the size of the structure, and the location of the garage, tenants cannot access the rear yard for parking. (Tr. at 42, 61.) James Weiss acquired the property with several partners in the 1960's and became sole owner in 1988. (Tr. at 28). For twenty-eight years—from the time James Weiss became sole owner in 1988 until 2006—he managed his apartment building with only three to four parking spaces in the driveway. (Tr. at 49, 55-56.)
The property is located in an R-3 Residential District. (Tr. at 42.) Under Providence Zoning Ordinance § 101.1, R-3 zones are intended for low and medium density residential areas containing one, two, and three family dwelling units. Because it was erected in 1919, prior to the enactment of Providence's first comprehensive zoning ordinance in 1923, [2] the twelve-unit property does not have to meet this requirement, however, and hence is grandfathered as a preexisting non-conforming use. Id.; see also, Scotti Report, Appellant's Br., Ex. B. 2. Under § 703.2 of the current Zoning Ordinance, which dictates that a property in a residential zone used as a multiple-family dwelling must have 1.5 off-street parking spaces per dwelling unit, James Weiss' property should have eighteen parking spaces. (Tr. at 42.) The property however, is also grandfathered for the parking requirement as it had pre-existing legal, non-conforming status with three to four parking spaces as of 2006. (Tr. at 25; Zoning Board Resolution at 3 ¶ 1; Scotti Report 2.)
In 2006, Gregory Weiss, Appellant James Weiss' grandson took over management of the property. (Tr. at 24.) Without prior approval from the City of Providence, Gregory Weiss had an oil tank removed from the property's grassy front yard because it had filled up with sediment. Id. After removal of the tank, he had the area leveled and replaced the grass with gravel to create four additional parking spaces. (Tr. at 24, 28-29.) In March 2008, a City building inspector noticed a car parked on the graveled space and cited James Weiss for a violation of Providence Zoning Ordinance § 704.2. (Tr. at 28; Notice of Violation, City's Br., Ex. 1.) Section 704.2 prohibits property owners in residential zones from paving more than 33% of a property's front yard area for the purposes of parking.[3] The front yard of James Weiss' property has a total area of 1000.58 square feet; the already existing driveway covered 183.43 square feet of the front yard. The graveled space covered an additional 690 square feet, resulting in a total paved area that covers 87.29% of the Property's front yard. (City's Br. 2, n.1.)
In response to the violation citation, James Weiss filed an application for a dimensional variance with the Zoning Board on July 17, 2008, requesting relief from the requirements of § 704.2.[4] In effect, he sought retroactive permission for the four additional parking spaces.
The Zoning Board conducted a site inspection of the Property on November 10, 2008 and held a public hearing to consider James Weiss' request for dimensional relief on November 24, 2008. (Resolution at 1.) At the hearing, the following individuals testified in support of James Weiss' request: his attorney, Albert Romano; his grandson, Gregory Weiss; and Peter M. Scotti, a licensed real estate broker and certified appraiser. Three neighbors—Miriam McRobb, Nina Tannenwald, and Mark Suchman—testified in opposition to his application.
James Weiss' attorney, Albert Romano, gave a brief introduction describing the Property and the relief requested. (Tr. at 23.) Specifically, Mr. Romano claimed that James Weiss sought to bring the Property closer to providing the minimum number of spaces required for compliance with § 703.2 of the Zoning Ordinance, notwithstanding the property's grandfathered status. (Tr. at 24-25.) Mr. Romano described some of the common parking problems in the neighborhood, including a three-hour limit on street parking and a lack of off-street parking. (Tr. at 25-26.) He later explained that the lack of off-street parking at the Property is due, in part, to the fact that the structure was erected in 1919, before the automobile attained widespread popularity. (Tr. at 62.) Mr. Romano admitted that additional parking is available in a commercial lot directly abutting the Property to the west, but expressed his belief that property owners should be able to do what they please with their land without being dependent on their neighbors. (Tr. at 61.) Mr. Romano told the Zoning Board that he thought Gregory Weiss' landscaping plans for the parking spaces at issue would allow for greenery, maintain consistency with the surrounding area and would upgrade the neighborhood. (Tr. at 62.) In closing, Mr. Romano indicated—in response to a question from Zoning Board member Egan—that James Weiss would not object to the Zoning Board including a sunset provision that would terminate the dimensional variance should the City ever allow on-street parking for residents.[5] (Tr. at 63.)
The current property manager, Gregory Weiss, next testified in support of his grandfather's application. He began by describing the removal of the tank, the gravelling over of the front yard, and other circumstances leading to the violation and the current application for relief. (Tr. at 28-29.) He then explained the current parking dilemma: at any given time, James Weiss has twelve or more tenants with twelve or more vehicles. (Tr. at 29.) Since the driveway only provides space for three or four small cars if they are parked in tandem, a tenant who needs to get out of the driveway may have to call another tenant to come down and move his or her car, sometimes at odd hours of the day or night. Id The tandem parking arrangement also makes it infeasible for any of the tenants to park in the garage, since all of the other cars would have to move each time someone needed to get a car in or out of the garage. (Tr. at 37.)
Although he acknowledged that five of James Weiss' tenants rent parking spots in the commercial parking lot directly abutting the Property to the west, Gregory Weiss explained that the commercial lot is not a satisfactory solution to his parking problem because his tenants cannot enter the lot until after 5 p.m. and must exit by 8 a.m. (Tr. at 29-31, 45-46.) He testified that this arrangement interferes with his efficient management of the property because he has to deal with calls from the manager of the lot "every other day" about tenants who have not removed their cars from the lot by 8:15 a.m. (Tr. at 31.) He alleged that during snowstorms, his tenants have no place to park; they cannot park on the street, and their cars will be plowed in if left in the lot. (Tr. at 30-31.) According to Gregory Weiss, his tenants are working professionals who pay good rent and therefore do not want the nuisance of having to repeatedly move their vehicles. (Tr. at 29.) He also expressed his concern that he is at the mercy of the lot owner should the owner decide to increase rates or terminate the relationship. (Tr. at 45.) Despite the lack of parking, however, he acknowledged that all of the units are currently rented. (Tr. at 46.)
Gregory Weiss then described for the Zoning Board the changes he intended to make to the Property. Specifically, he planned to add more greenery to the front yard by replacing the gravel with "California" or "Hollywood" style paving bricks. (Tr. at 31-32.) Such pavers, he testified, contain holes that allow grass to grow up from underneath and show at the surface. (Tr. at 32-33.) He also envisaged additional landscaping that would help create a more verdant appearance in the front yard, including spreading grass seed and planting shrubbery. (Tr. at 33.) He confirmed that he was not seeking a variance to enlarge the property, add additional units, or increase the number of tenants. (Tr. at 31.)
In addition to his testimony, Gregory Weiss presented the Zoning Board with a petition signed by six neighboring property owners in support of James Weiss'...
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