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City of East Providence v. City of East Providence Zoning Board of Review

Superior Court of Rhode Island

March 24, 2016

CITY OF EAST PROVIDENCE, Plaintiff/Appellee
v.
CITY OF EAST PROVIDENCE ZONING BOARD OF REVIEW, V.S.H. REALTY, INC. AND CUMBERLAND FARMS, INC. Defendants/Appellants

Providence County Superior Court

For Plaintiff: Timothy J. Chapman, Esq.

For Defendant: Dylan B. Conley, Esq.; Gregory S. Dias, Esq.; William J. Conley, Esq.

DECISION

LANPHEAR, J.

Cumberland Farms, Inc. and the City of East Providence (Appellants) appeal the November 13, 2015 decision of the City of East Providence Zoning Board of Review (Zoning Board) denying Cumberland Farms, Inc.'s request for several dimensional use variances in order to expand the size of its current gas station and convenience store. The Defendant, the Zoning Board, opposes the appeal. Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, this Court reverses the Zoning Board's decision, thereby granting Cumberland Farms, Inc.'s requests for dimensional relief.

I

Facts and Travel

V.S.H. Realty, Inc. and Cumberland Farms, Inc. (Cumberland Farms) proposed an expansion of its pre-existing convenience store and gas station, which is located on Assessor's Map 309, Block 6, Parcels 5, 6, and 7, on Wampanoag Trail and Pawtucket Avenue in East Providence (Parcels). Before the requests for dimensional relief were ripe for review by the Zoning Board, however, the East Providence Zoning Code (Zoning Code) required[1] that Cumberland Farms obtain approval for a Zoning Map Amendment and a Comprehensive Plan Amendment (Amendments)[2] from the East Providence City Council (City Council), as well as an overall design approval from the City Development Plan Review Committee[3] (Committee), pertaining to the Parcels. See G.L. 1956 §§ 42-45-1 et seq.

On April 21, 2015, in compliance with the Zoning Code, Cumberland Farms obtained approval from the City Council of the Amendments regarding the Parcels from an existing designation of "low-density residential" to a "commercial 2 retail" zone.[4] This zoning change is subject to the limitation that a convenience store and gas station is the only permitted use. See City of East Providence Zoning Board of Review, Case Number 6579, Nov. 13, 2015 Decision (Zoning Board's Decision).

Thereafter, on August 3, 2015, the Committee issued a conditional approval of the overall proposed design and found that the proposal is compatible and consistent with the goals of the City's Comprehensive Plan. Specifically, the Committee found that Cumberland Farms' proposal to develop a convenience store and gas station is a lawfully permitted use, as it amounts to an expansion of a pre-existing convenience store and gas station.[5]

After receiving each of these approvals, Cumberland Farms then petitioned the Zoning Board seeking approximately ten requests for dimensional relief to expand its pre-existing convenience store and gas station. See Zoning Board's Decision. In order to do so, Cumberland Farms submitted the following requests for dimensional variances to the Zoning Board: to permit (1) that the side-yard setback requirement of the new retail facility be only approximately two and one-tenths[6] (2.10) feet from the southerly property boundary (Roof Overhang Variance); (2) the redevelopment without requiring that it meet the two hundred (200) foot setback[7] from a church requirement, resulting in the redevelopment being situated approximately one hundred and forty-six (146) feet from the church situated to the northeast across Wampanoag Trail (Church Variance); (3) the redevelopment to place an off-street loading space directly north of the trash storage area[8] (Trash Variance); (4) the introduction of an off-street parking area that will be improved with deficient landscape buffering with an eight-tenths[9] (0.8) foot variance, resulting in a portion of said landscape buffer to be as narrow as four and two-tenths (4.2) feet in overall width; (5) the redevelopment without provisions for sufficient off-street parking[10](Parking Variance); (6) the introduction of an off-street loading space that may potentially conflict with the proposed trash storage area[11] resulting from the placement of an off-street loading space directly north of the proposed trash storage area and to the immediate east of the proposed retail facility (Loading Variance); (7) a prohibited free-standing sign[12] to benefit the adjacent Coastway Bank Property (Bank Sign Variance); (8) the use of a digital pylon sign[13] to show the gas prices of Cumberland Farms (Digital Sign Variance); and (9) the installation of pylon signage, resulting in approximately forty (40) square feet[14] in total face area per respective side (Pylon Sign Variance).[15] See Zoning Board's Decision.

The Zoning Board conducted three hearings on Cumberland Farms' proposal, which were held on August 12, 2015; September 2, 2015; and November 4, 2015. At the hearings, Cumberland Farms introduced evidence-in the form of both lay and expert testimony-to support its requests for dimensional relief. The sole objector to Cumberland Farms' proposal was the resident of 31 Wampanoag Trail (Objector), who was represented by her children.

On November 4, 2015, the Zoning Board voted three to two[16] (3-2) in favor of approving each of Cumberland Farms' requests for dimensional relief. The majority of the Zoning Board found that all the necessary prerequisites for granting relief were supported by evidence on the record and reasoned that (1) the hardship from which Cumberland Farms sought relief is due to the unique character of the subject land and not the general character of the surrounding area; (2) the hardship is not a result of any prior action of Cumberland Farms; (3) granting the variances will not alter the general character of the surrounding area or impair the intent of the City of East Providence; (4) the comprehensive plan for relief is the least relief necessary; and (5) Cumberland Farms will suffer hardship constituting more than a mere inconvenience unless the dimensional variances are granted. See Zoning Board's Decision at 5. As a result, the majority of the Zoning Board moved to grant the dimensional variances-subject to Cumberland Farms obtaining all necessary permits. See id. The minority of the Zoning Board, however, claimed that (1) a hardship has not been shown; (2) granting the variance will alter the general character of the area and clearly alter the general character of the neighborhood, specifically with the direct abutter; and (3) the relief is not the least relief necessary. See id. at 6. Since § 45-24-57(2)(iii) requires the concurring vote of four of the five members of the Zoning Board, the result constituted a denial of Cumberland Farms' requests.[17]

On December 4, 2015, the Appellants timely appealed the Zoning Board's Decision to the Superior Court.

II

Standard of Review


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