Judge Stern Issues Ruling on Fane Tower Litigation

Tuesday, December 08, 2020

GoLocalProv News Team

 

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Superior Court Judge Brian Stern

Rhode Island Superior Court Judge Brian Stern issued a 22-page ruling on Tuesday that clears the way for the proposed 46-story residential tower with the city of Providence, pending an appeal to the RI Supreme Court.

The project was first proposed in 2016 as a three-tower project. It has been a battle between the administration of Providence Mayor Jorge Elorza as well as the Providence Preservation Society against developer Jason Fane and the building trade unions.

The project as now proposed would cost an estimated $300 million and would be the most expensive private development in the City of Providence since the development of Providence Place Mall.

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The suit was brought by Peter Scotti and Associates and others against the City Council and the developer, in an effort to block the project for not complying with the city's comprehensive plan.

The Fane organization said in a statement, "The decision today by Superior Court Judge Brian P. Stern is a very positive step forward.  It resolves any outstanding questions on the project’s zoning and validates the zoning approval for the Fane Tower.  This decision makes it clear that the zoning is consistent with the city’s Comprehensive Plan. This positive decision clears the way for Fane to move forward actively on the necessary design development documents and other milestones to bring this project to fruition. The Fane Tower will be a spectacular place to live and a great addition to the City of Providence."

 

Judge on Record

Stern, however, found the Council's action were lawful.

"Certainly, as evidenced by the conflicting recommendations by the Planning Department and the CPC as to consistency with the Comprehensive Plan, this issue is not entirely clear cut. But our Supreme Court has 'recognize[d] that a municipality has discretion in choosing options for conforming its ordinances or land use decisions to its comprehensive plan.' Here, the Court’s task is to determine if Plaintiffs have set forth specific evidence creating a dispute as to whether the Amendment conforms with the Comprehensive Plan. As the Court noted in its prior Decision, '[w]hen the evidence is fairly debatable the issues should be resolved in favor of upholding the zoning regulations,'” Stern writes.

"Consequently, after review of the full record, and viewing the Comprehensive Plan in its entirety, the Court finds that Plaintiffs have not met their burden of showing that a doubling of the prior height limitation for the D-1 zone is inconsistent with the Comprehensive Plan," writes Stern.

Stern concluded, "For the reasons stated herein, the Court finds that Plaintiffs have not met their burden of rebutting the Amendment’s presumption of validity by putting forth specific evidence that the Amendment is not consistent with the Comprehensive Plan. Moreover, the Court finds that there are no genuine issues of disputed fact, and that Defendants are entitled to judgment as a matter of law."

Now, there are no outstanding issues with the City of Providence for the NY-developer.

On November 19, 2020, GoLocal reported:

The Fane Tower project lives for another day. New York developer Jason Fane has been working to build a 46-story residential tower in Providence for more than four years. 

On Wednesday night, the 195 Commission met almost entirely in closed session for nearly an hour outside of the public’s review and voted to allow the Fane project to continue and gave multiple critical extensions to the project.

When the coronavirus pandemic hit, Fane had requested of the Commission to “pause” the timeline and never received a response.

Latest in Fane Application 

Over the past few months, Fane has missed a number of deadlines during the pandemic for the project that was first proposed in November of 2016 — four years ago.

The Commission operating under Robert Davis' chairmanship returned from the closed session and with no debate passed a motion to trade a payment of $249,000 in penalties in exchange for an extension of two critical deadlines relating to design and another for the closing — and those extend the project’s development to June 30 of 2021.

In addition to the penalty payment due to be paid by end of day Friday, Fane must provide a letter of credit for $3.75 million to coincide with the design submission and approval.

These two financial provisions resolve the missed deadlines.

 

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