Kent County Superior Court. (KC 12-914). Associate Justice Stephen P. Nugent.
For Plaintiff: William R. Landry, Esq., Lynne Barry Dolan, Esq.
For Defendants: Elizabeth McDonough Noonan, Esq., Peter A. Clarkin, Esq., Hamza M. Chaudary, Esq., Robert I. Stolzman, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
Paul A. Suttell, Chief Justice
This appeal emanates from a dispute between competing fast-food restaurants over whether one of the restaurants was entitled to build and operate a drive-through window pursuant to the East Greenwich Zoning Ordinances. The plaintiff, CCF, LLC, operates a Wendy's restaurant at 2311 New London Turnpike in East Greenwich. One defendant, McDonald's Corporation, had sought and received permission to build a new McDonald's restaurant with a drive-through window on property located at 2500 New London Turnpike in East Greenwich (subject property). The other defendant, Wayne Pimental, was named in his capacity as the building official for the Town of East Greenwich. The plaintiff sought a mandatory injunction and a writ of mandamus from the Superior Court to prevent the construction of the drive-through facility unless and until McDonald's first submitted a special-use permit application for the drive-through window to the Town of East Greenwich's Zoning Board of Review (zoning board or board). A Superior Court justice resolved the dispute on cross-motions for summary judgment, denying the plaintiff's motion and granting the defendants' motion. A final judgment entered in favor of the defendants on all counts, from which the plaintiff now appeals. For the reasons set forth below, we affirm the Superior Court's judgment.
Facts and Procedural History
In April 2011, FKL New London, LLC (FKL) filed an application with the East Greenwich Planning Board for approval of a development plan for the construction and operation of a McDonald's restaurant with a drive-through window (McDonald's project). The planning board held two public hearings in December 2011 regarding the McDonald's project. The plaintiff attended the second hearing, where its counsel voiced two main objections; one based on concerns about traffic congestion, the second based on plaintiff's contention that the applicant was required--but had failed--to apply for a special-use permit before it could build and operate a drive-through window. The planning board granted approval to the McDonald's project based in part on the fact that, in 2004, a previous owner of the subject property had received a special-use permit from the zoning board for the construction and operation of a restaurant with a drive-through window. The planning board's approval is memorialized in two decisions: a " revised preliminary plan decision" filed with the town clerk on December 15, 2011, and a " final plan decision" filed on December 21, 2011. The plaintiff did not appeal from either decision.
On March 29, 2012, however, plaintiff sent an email to defendant Pimental requesting that, in his capacity as the zoning enforcement officer for East Greenwich, he review the planning board's decision to determine whether it had correctly " interpreted and complied with the provisions" of the zoning ordinances. The plaintiff asserted that the planning board had misinterpreted provisions of the applicable zoning ordinances and had erred by allowing McDonald's to rely on the special-use permit that had been granted in 2004 to the previous owner of the subject property. The plaintiff was advised, however, that Pimental would not be responding to its email request; and, on May 2, 2012, plaintiff filed a " notice of appeal" with the zoning board requesting a similar determination from the board. The zoning board's chairman responded in a letter dated June 14, 2012, stating that the board had neither the authority nor the protocol to consider plaintiff's appeal.
Approximately two months later, plaintiff filed a verified petition in the Superior Court against Pimental in his capacity as the building official for the Town of East Greenwich. The plaintiff sought (1) a mandatory injunction barring the building official from issuing a building permit to FKL (the owner of the subject property) for the McDonald's project and (2) a writ of mandamus compelling Pimental to deny FKL's application for a building permit in reliance upon the 2004 special-use permit. The day after plaintiff filed its petition in Superior Court, Pimental issued a building permit granting FKL permission to install a foundation for the future construction of the McDonald's restaurant; and, on August 16, 2012, he issued a second building permit granting FKL permission to construct the restaurant on the foundation.
The plaintiff sent another notice of appeal to the zoning board on August 21, 2012, appealing from the issuance of the August 16 building permit. In a letter dated August 23, 2012, the town solicitor responded, indicating that the town " does not acknowledge that [plaintiff] has the right to appeal the issuance of a building permit to the [zoning board]," nor did it agree " that the filing of the appeal stay[ed] all proceedings in furtherance of the actions which are the subject of the [n]otice of [a]ppeal." The plaintiff amended its petition to the Superior Court, requesting that the Superior Court issue both a mandatory injunction and a writ of mandamus ordering the building official to prevent FKL from building--or continuing to build--a restaurant with a drive-through window in reliance on the building permits without first submitting a special-use permit application to the zoning board for the drive-through window. McDonald's filed a motion to intervene as a party defendant, which the Superior Court granted on October 11, 2012. CCF and McDonald's subsequently filed cross-motions for summary judgment. After hearing oral argument on the cross-motions, the hearing justice issued a written decision denying plaintiff's motion for summary judgment and granting McDonald's cross-motion for summary judgment. Final judgment in favor of defendants entered in June 2013, and plaintiff timely appealed.
Standard of Review