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Thompson v. Carlson12/14/2005
or the cooking area into fire safety and building code requirements." The expert did not point to any provisions of either the ADA regulations or the fire safety and building code requirements to support his assertions.
While the Zoning Board did inspect the property, it made no findings in its Decision concerning that inspection. See Snyder v. Zoning Bd. of Town of Westerly, 98 R.I. 139, 200 A.2d 222, 224 (1964) ("The bald statements that there will be drainage and sewerage disposal problems without disclosure of the observed conditions or land characteristics do not constitute the kind of probative evidence capable of sustaining the board's decision."). Consequently, assuming arguendo that the variance standard had been applicable, the Zoning Board's decision was made in excess of the Zoning Board's authority and was arbitrary and capricious and characterized by abuse of discretion. However, this Court is reversing the Decision on different grounds.
The applicable standard that the Zoning Board should have applied may be found in Section 902.4 of the Providence Zoning Ordinance. That provision governs the issuance of a special use permit. It provides:
"To authorize, upon application, in specific cases, special-use permits pursuant to Section 303 and other applicable provisions of this Ordinance. The Board may impose such conditions regarding the proposed building, structure, use or otherwise, as it deems appropriate. To authorize a special use permit, the Board must first:
A) Consider the written opinion from the Department of Planning and Development.
B) Make and set down in writing specific findings of fact with evidence supporting them that demonstrate that:
1. The proposed special use permit is set forth specifically in this Ordinance, and complies with any conditions set forth therein for the authorization of such special use permit.
2. Granting the proposed special use permit will not substantially injure the use and enjoyment of nor significantly devalue neighboring property; and
3. Granting the proposed special use permit will not be detrimental or injurious to the general health, or welfare of the community." Section 902.4 of the Providence Zoning Ordinance.
Furthermore, because this property is located in a W2 waterfront zoning district, in addition to satisfying the standards set forth in Section 902.4, the applicant also was required to satisfy the standards set forth in Section 905.2 of the Providence Zoning Ordinance. Those requirements are:
A) "The proposed project preserves, enhances or creates public access to the waterfront.
B) The proposed project does not unnecessarily obstruct views or impede existing access to the waterfront.
C) The proposed project promotes the most desirable use of the land and direction of building development to assure the maintenance and enhancement of the aesthetic aspects of scenic views.
D) The proposed project does not impede the navigable waterway.
E) A traffic study has been completed that establishes the existing Level of Service and demonstrates that the proposed development will not degrade or lower the Level of Service once the project is operational. If the study determines that the proposed development will lower the Level of Service, the applicant must develop an improvement plan that will maintain or improve the Level of Service. The applicant will be required to make the proposed improvements and to pay for these improvements." Section 905.2 of the Providence Zoning Ordinance.
This Court finds that the Zoning Board applied the incorrect standard whe
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