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Crossroad Condominium Association v. City of Cranston Zoning Board of Review

Superior Court of Rhode Island

October 7, 2014

CROSSROAD CONDOMINIUM ASSOCIATION, FRANK DOHANUE, ALDO TESTA, JAMES LANTINI, and JOSEPH LAPOLLA
v.
CITY OF CRANSTON ZONING BOARD OF REVIEW, by and through its members, STEVEN MINICUCCI, STEVEN CARRERA, ADAM SEPE, LORI CARLINO, and CRAIG NORCLIFFE; and 1075 SCITUATE AVENUE, LLC; AND NICO ENTERPRISES, LLC

Providence County Superior Court

For Plaintiff: Gregory P. Piccirilli, Esq.

For Defendant: Robert D. Murray, Esq. Stephen H. Marsella, Esq.

DECISION

NUGENT, J.

Before the Court is an appeal from a decision of the City of Cranston Zoning Board of Review (the Zoning Board) granting an application for a use variance. NICO Enterprises, LLC and 1075 Scituate Avenue, LLC (Applicants) applied for a use variance to allow an existing expanded farm stand to expand its menu to include restaurant fare for breakfast and lunch only. Crossroad Condominium Association and the named Plaintiffs (Plaintiffs) own abutting property and seek reversal of the Zoning Board's decision. Jurisdiction of the Plaintiffs' timely appeal is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, this Court remands the case to the Zoning Board for additional findings of fact and to then apply those findings to the use variance standard.

I

Facts and Travel

A

The Property

Applicants are the owner and tenant[1] of the property at 1105 Scituate Avenue, Cranston, Rhode Island 02911, delineated as Tax Assessor's Plat 36/4, Lot 43. (Tr. at 3, Sept. 11, 2013 (Tr.).) The property is approximately 199, 940 square feet and is located in an A-80 zone— residential with single-family dwellings allowed on lots consisting of at least 80, 000 square feet. (Pls.' Ex. A at 1.) Currently, the property contains one main building and two greenhouses. Id.

Historically, the property has been the site of a farm, nursery, and farm stand.[2](Applicants' Mem. at 2.) In 2003, the property was sold to Frank Paolino who applied for and received a use variance to sell ice cream, dairy products, and seasonal foods at the existing farm stand. (Tr. at 20; Applicants' Ex. C at 1.) That first use variance included conditions that the parking lot remain gravel "to maintain the rural flavor" and that food sales remain limited to ice cream, seasonal fruits and vegetables, and limited dairy products. (Applicants' Ex. C at 1.) Prior to receiving the use variance, Mr. Paolino executed a conservation easement agreement[3] with the City of Cranston that restricted the use of the property to open space unless obtaining prior approval from the city. (Tr. at 19-20.)

In 2008, Mr. Paolino sold the property to Scituate Avenue Realty, LLC, who rented the property to JMJ Enterprises, Inc., d/b/a The Inside Scoop, which continued to operate the ice cream and farm stands. (Tr. at 21.) In February 2008, Scituate Avenue Realty, LLC received a second use variance which permitted it to add clam cakes, chowder, and doughboys to its menu. Id.

Early in 2013, Scituate Avenue Realty, LLC sold the property to 1075 Scituate Avenue, LLC. (Applicants' Mem. at 2.) NICO Enterprises, LLC became a tenant at the property in March of 2013 and continued to operate the ice cream stand, renaming it The Frosty Dog. (Tr. at 8-9.) On July 1, 2013, Applicants applied[4] to the Zoning Board for a use variance to allow expansion of the food service at the property. (Pls.' Ex. A. at 1-2.) The application requested expansion of the menu to fare associated with a restaurant.[5] (Tr. at 3.) The Applicants sought relief from the zoning requirements under Cranston, R.I. Code of Ordinances §§ 17.20.030[6](schedule of uses), 17.88.030[7] (extension of nonconforming use), and 17.92.010[8] (variance). (Tr. at 3.) The Applicants later stated that the provision relating to nonconforming use was inapplicable because the existing use was permitted by way of a prior variance and not a prior nonconforming use. (Applicants' Mem. at 6.) The City Planning Commission evaluated the application and ...


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