DocketNumber: C.A. No. 89-6807
Judges: <underline>ISRAEL, J.</underline>
Filed Date: 10/23/1991
Status: Non-Precedential
Modified Date: 4/18/2021
Anyone who wants to demolish any structure in the Historic College Hill District, a historic district established by ordinance of the City of Providence, must submit an application and plans to the city's director of building inspection who is required to transmit the application and plans to the Historic District Commission for review. The commission may approve or disapprove the application, and is required to conduct its business at meetings open to the public at which any person, or his duly constituted representative, is entitled to appear and be heard on any matter before the commission before it reaches its decision.
The historic district was established and the commission created by ordinance of the City of Providence, adopted in 1960, pursuant to P.L. 1959, ch. 131, later codified as Chapter 24.1 of Title 45 of the General Laws. This enabling legislation permitted municipalities to "lay out and define districts which are deemed to be of historic or architectural value." Municipalities were empowered to create historic district commissions to which applications for demolition, among other activities, which affected the exterior appearance of any structure in the district had to be submitted for approval or disapproval. The decision of the commission was subject to appeal to the local zoning board of review and judicial review.
Of decisive importance in this case were the standards of review to be applied by the commissions as set forth in Section 4 of the enabling act, which were codified and re-enacted into §
"(a) the historic or architectural value and significance of the structure and its relationship to the historic value of the surrounding area; (b) the relationship of the exterior architectural features of such structure to the rest of the structure and to the surrounding area; (c) the general compatibility of exterior design, arrangement, texture, and materials proposed to be used; and (d) to any other factor, including aesthetic, which it deems to be pertinent."
Next, the Act set out some very specific legislative intentions to control the decisions of the commissions:
"It is the intent of this act that the commission be strict in its judgment of plans for structures deemed to be valuable according to studies performed for districts of historic or architectural value. It is also the intent of this act that the commission shall be lenient in its judgment of plans for structures of little historic value or for plans for new construction except where such plans would seriously impair the historic or architectural value of surrounding structures or the surrounding area. It is not the intent of this act to limit new construction, alteration, or repairs to any one period of architectural style."
It seems to the Court that the General Assembly intended for structures in a historic district to be divided into two general classes. Structures deemed valuable according to studies were subjected to strict judgment by the commission. Structures of little historic value were subjected to lenient judgment by the commission except where the plans for those structures would seriously impair the historic or architectural value of surrounding structures or the surrounding area. The Act makes no reference to, nor does it prescribe any standards for a structure of no historic value, yet every exterior alteration of every structure in the district must be reviewed by the commission. The Act, also, does not put any content into the notions of "lenient" and "strict" as standards of judgment. Nevertheless, it is clear that the commission may disapprove plans even for the demolition of structures of little historic value and not deemed valuable according to the studies referred, provided it exercises "lenient" judgment.
It is a fair construction of the Act that every structure in a historic district potentially has some historic or architectural value, either because it was deemed so by an appropriate study or because a commission found it to have some historic value, either great or little.
In addition to the lenient/strict dichotomy of judgment, the Act mandated separate consideration of two classes of structures of different kinds of value:
"In the case of an application for repair or alteration affecting the exterior appearance of a structure or for the moving or demolition of a structure which the commission deems so valuable to the city, town, state or nation that the loss thereof will be a great loss to the city, town, state or nation, the commission shall endeavor to work out with the owner an economically feasible plan for the preservation of such structure. Unless the commission is satisfied that the retention of such structure constitutes a hazard to public safety which hazard cannot be eliminated by economic means available to the owner or unless such proposed construction, alteration and repair will not in the opinion of the commission materially impair the historic value of said structure, the commission shall file with the inspector of buildings or duly delegated authority its rejection of such application. In the absence of a change in such structure arising from casualty, no new application for the same or similar work shall be filed within one year after such rejection.
In the case of any structure deemed to be valuable for the period of architecture it represents and important to the neighborhood within which it exists, the commission may file with the inspector of buildings or other duly delegated authority its approval of such application if any of the circumstances under which approval might have been given under the preceding paragraph are in existence or if: (a) such structure is a deterrent to a major improvement program which will be of substantial benefit to the community; (b) retention of such structure would cause undue financial hardship to the owner; or (c) the retention of such structure would not be in the interest of the majority of the community."
The first paragraph clearly refers to structures at the very peak of preservation value. As to them the Act prescribes a powerful presumption favoring preservation and disfavoring any form of alteration. The second paragraph clearly refers to structures of lesser importance, which do not enjoy the same priority as those in the first paragraph and are subject to other public or private interests, such as benefit to the community or financial hardship to the owner. It is furthermore clear that it is the commission which is to do the deeming by which a structure falls into one or the other of the two classes specified in the act.
The original enabling act made no provision for preservation of structures not in a historic district. That lack was cured for the City of Providence by P.L. 1969, ch. 191, § 1, which authorized the city to establish a list of specified buildings or structures which were deemed to be of historic or architectural value. The need for such lists was eliminated in 1988, when P.L. 1988, ch. 373, § 1 amended the enabling act by defining a historic district as including one or more structures. It is quite apparent that the priority lists mentioned in the ordinance were not the kind of lists referred to in the 1969 Public Law. In the first place they were made up at the time the ordinance was adopted in 1960, nine years before the Law was passed. In the second place, the enabling legislation in 1969 made no reference to priorities or degrees or kinds of historic or architectural value in the lists. Finally, nothing in the 1969 Act indicated that it was intended to ratify lists already established. The Act was clearly prospective.
Except for references to the priority lists the ordinance generally tracks the enabling act. In this case, neither party challenges the validity of the priority lists for obvious reasons. The plaintiff attaches great importance to the fact that its property is not specified on the lists. The defendant accedes to the ordinance because it is a governmental agency of the City which adopted the lists. In any event, any question of the future validity of lists is moot by reason of the repeal of § 42-24.1-10 as it appeared before 1988, and the reenactment and revision of Chapter 24.1 of Title 42 in 1988 and thereafter without mention of priority lists.
Since the decision of November 28, 1989 clearly enunciated the factual findings upon which the defendant based its decision, the plaintiff's citation of and reliance on Bellevue ShoppingCenter Associates v. Chase,
The City of Providence had no power to enlarge, diminish or otherwise modify those standards by ordinance, nor did it attempt to do so. See, State v. Krzak, 99 R.I. 156 [
The defendant does not claim any authority to amend the ordinance nor does its decision have that effect, nor did it exercise any power validly denied to it by the local legislature. Accordingly, the plaintiff's citation of Colello v. Zoning Boardof Review of Cranston,
The enabling authority by which a local legislature may permit zoning boards to grant special exceptions to general zoning regulations is contained in §
The plaintiff's contention that, unless a structure appears on one or the other priority lists, or is deemed of historic or architectural value by the College Hill Study, the defendant is powerless to find it to be of some, even if little, historic value defies the plain language of both the enabling act and the ordinance. If the plaintiff was correct, notwithstanding the express provision of the ordinance, there would be no structures in the historic district to which the leniency requirement applies. According to the plaintiff's position, the defendant would have only the two alternatives of (1) strict judgment or (2) powerlessness.
The plaintiff's contention that the College Hill Study constituted the sole and exclusive evidence of any historic or architectural value of any structure in the historic district is contrary to the enabling act and the ordinance. The study and the priority lists identify those structures to which the strict judgment requirement applies. The study and priority lists are substantial evidence of which structures are subject to the provisions of the fifth and sixth paragraphs of §
In any event, nowhere in the ordinance was the defendant limited to consideration of the College Hill Study in its determination of whether these structures had any historic or architectural value. In fact, the first paragraph of Section D(3) of Article VI-A of the Ordinance echoes the enabling act when it lists the factors to be considered by the commission, and the defendant de novo, in reviewing plans like the plaintiff's. The defendant is not limited by that paragraph to considering only whether a structure appears on a priority list. There is nothing in the ordinance which prohibits the defendant from finding that a structure, not on either priority list, has some historic or architectural value.
The defendant argues, as well, that only the criteria used in the College Hill Study to determine the historic or architectural value of a structure could be used by the defendant in its determinations. While there can be no doubt that the study constituted a valuable source of evidence by which historic value can be proved, it cannot be said that the enabling act or the ordinance makes it exclusive. Nothing in the ordinance expressly declares that only the measures of historic value used by the authors of the study could be used by the commission, and the defendant, to measure historic value, particularly in the exercise of lenient judgment of plans for structures of little historic or architectural value. The ordinance, itself, in Section F of Article VI-A with respect specifically to demolition, provides that the priority lists serve only as a guide. The priority lists, whatever their validity may be under the enabling act, are not intended by the ordinance to be the sole and exclusive source of evidentiary weight on the question of historic or architectural value. The defendant was not wrong in considering evidence of the historic or architectural value of the plaintiff's structures from sources other than the study or the priority lists. The Court, after a careful review of the study, agrees with the defendant's argument, that even though the study found the plaintiff's structures to be intrusions of no historic interest in the historic district, the criteria by which historic value was measured in the study are flexible enough to permit a change in valuation of the structures over time. The defendant's embodiment of that position as a finding of fact in its decision is fully supported by substantial evidence considering the record as a whole. There is also substantial evidence in the record from which the defendant could and did find that in fact it was applying criteria found in the College Hill Study to its consideration of these plans.
Finding number 3 in the defendant's decision would indicate that the defendant found as a matter of fact that these structures have sufficient historic value that their loss would seriously impair the historic or architectural value of the surrounding structures or area. It is not altogether clear from this finding that the defendant applied a strict standard or a lenient standard to its judgment. This Court is satisfied that based on the evidence before it the defendant was fully justified under either of these standards in denying the application before it.
Mr. Richard Chafee, a qualified expert in the field of the history of architecture, gave it as his expert opinion that the structures in question were "less deserving of being saved (than) almost any other of the approximately 1500 buildings on College Hill." (Trans. March 28, 1989, p. 27, 11. 15-18). He was of the opinion also that only the structures on the priority list were of sufficient historic value to be worth preserving in the district. It was his opinion that there are other three-decker tenement houses in other neighborhoods more worthy historically of preservation. In the face of conflicting expert evidence the defendant was justified in rejecting this witness' opinion.Mendonsa v. Corey, supra. The witness also conceded that his opinion was based on his interpretation of the ordinance, which is a legal matter for the defendant and the Courts to decide.
Ms. Antoinette Downing, whose expertise was recognized and acknowledged by everyone except the plaintiff, testified unequivocally that it was her opinion that the structures were significant to the history of the district. (Trans. March 28, 1989, p. 58, 11. 13-21). She clearly explained the basis of her opinion and asserted that professionally she found these structures to be "exciting." (Trans. March 28, 1989, pp. 61-63). She further testified that demolition of these structures would seriously impair the historic or architectural value of surrounding structures or the surrounding area. (Trans. May 3, 1989, pp. 4-5). The testimony of this witness, standing alone, even if it had not been supported by a veritable parade of expert witnesses in support of preservation of the structures, would suffice to sustain the defendant's decision. The testimony of Messrs. Arthur Krim, William Kite, William H. Jordy and Edward F. Sanderson, all pre-eminently qualified to testify as experts in their respective fields as to the historic or architectural value of these structures, fully supports the defendant's decision. The record, as a whole, provides an abundance of evidence to support the board's decision. The plaintiff seems to agree that the structures may have historic value measured by other standards than those which appear in the College Hill Study of 1959. It argues that such historic value, however great, cannot be the basis for any impairment of the value of the surrounding structures or area. This argument is simply another version of the plaintiff's "all-or-nothing-at-all" contention with regard to historic value. The defendant correctly rejected the plaintiff's argument as unsupported by any credible evidence in the record. This reviewing Court's conscience is at ease. Apostolou v.Genovesi,
The Court can easily understand that residents in the neighborhood, who have substantial investment in the renovation of historic structures or in the construction of new structures to conform to the historic appearance of the district, would desire to be relieved of the current unsightliness of the structures as the plaintiff has allowed them to become. The defendant quite properly disregarded the present unsightly and unrestored appearance of the exterior condition of these structures, just as it disregarded the plaintiff's plans for redevelopment with modern construction. The defendant correctly addressed the question of the historic or architectural value of these structures, as sited, in themselves, and as part of the district. It may well be that continued neglect may lead to such dilapidation of these structures that they may become irremediably disrepaired. That matter, although considered by the defendant, was not properly before it.
Since the defendant's decision was not beyond its jurisdiction, was not affected by any error of law or procedure, was not arbitrary or capricious and was based on substantial evidence considering the record as a whole, the plaintiff's appeal must be denied. Judgment will enter for the defendant. The defendant's decision is affirmed. The defendant will present a form of judgment for entry upon notice to the plaintiff.
Renza v. Murray , 1987 R.I. LEXIS 479 ( 1987 )
Thomson Methodist Church v. Zoning Board of Review , 99 R.I. 675 ( 1965 )
Apostolou v. Genovesi , 120 R.I. 501 ( 1978 )
Colello v. ZONING BD. OF CRANSTON , 105 R.I. 195 ( 1969 )
Bellevue Shopping Center Associates v. Chase , 1989 R.I. LEXIS 40 ( 1989 )
Bellevue Shopping Center Associates v. Chase , 1990 R.I. LEXIS 100 ( 1990 )