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Linear Retail Smithfield #1 LLC v. Zoning Board of Review of Town of Smithfield

Superior Court of Rhode Island

July 26, 2016

THE ZONING BOARD OF REVIEW OF THE TOWN OF SMITHFIELD, and GEORGE D. McKINNON, ANTONIO S. FONSECA, DAVID GREENE, S. JAMES BUSAM, and PETER FOGARTY, in their Capacities as members of the Zoning Board of Review of the Town of SMITHFIELD Defendants/Appellees.

         Providence County Superior Court

          For Plaintiff: Joseph Brennan, Esq.

          For Defendant: Edmund L. Alves, Esq.

          Sally P. McDonald, Esq. Robert J. Cavanagh, Jr., Esq.


          LICHT, J.

         On February 26, 2014, the Zoning Board of Review of the Town of Smithfield (Zoning Board) denied Appellant Linear Retail Smithfield #1, LLC's (Linear Retail or Appellant) appeal from the Town Building Official's issuance of a violation notice which required the Appellant to remove a sign on its property and replace it with a smaller one. Linear Retail has appealed that decision of the Zoning Board and its members pursuant to G.L. 1956 § 45-24-69. For the reasons discussed below, this Court affirms the Zoning Board's decision.


         Facts and Travel

         Located at 400 Putnam Pike, Smithfield, Rhode Island 02917 (the Property), at the intersection of Route 5 and Route 44, is a retail shopping plaza containing several commercial outlets, including a bank and various restaurants. The Property is zoned for commercial use and is designated as Assessor's Plat 43, Lot 120-1. Restaurants are a permitted use, but a restaurant's accessory drive-through service and accompanying window requires a special use permit.

         Linear Retail wished to locate a Starbucks[1] restaurant on the Property in space formerly occupied by Rite-Aid Pharmacy. Linear Retail and Starbucks sought to erect a drive-through window associated with the Starbucks restaurant. Pursuant to the Town of Smithfield Zoning Ordinance §§ 4.3.F.3[2] and 4.4.F-3[3] (the Ordinance), Linear Retail filed an application with the Zoning Board seeking a special use permit to allow Starbucks to have a drive-through window that would be associated with its permitted restaurant use. See ZBR Application at 1-2, ¶ 8. The application also sought permission to erect signage for Starbucks. The Starbucks sign located at the Property's Route 44 entrance is at issue here. The Court notes that Linear Retail and Starbucks refer to this sign as a "direction" or "directional" sign, whereas the Zoning Board refers to it as a "monument, " "advertising, " or "identification" sign. For purposes of this Decision, the Court will refer to the sign in question as "the Sign."


         August 29, 2012 Hearing

         On August 29, 2012, Linear Retail presented its application for this special use permit to the Zoning Board.[4] In support of its application, Linear Retail offered testimony[5] from Bryan Furze, Linear Retail's Vice President of Asset Management (Mr. Furze), and three expert witnesses-Edward Pimentel (Mr. Pimentel), a land use and zoning expert; Philip Cordeiro (Mr. Cordeiro), a professional engineer registered in Rhode Island; and James P. Cronan, III (Mr. Cronan), a professional engineer and traffic expert. Tr. 5:11-12; 21:16-18; 47:2-10, Aug. 29, 2012.

         Mr. Pimentel asserted that, as a land use and zoning expert, it was his opinion that the addition of a drive-through window to the proposed Starbucks location conformed with the commercial character of the area. Id. at 7:6-11. In support of his opinion, Mr. Pimentel noted that several of the surrounding establishments were already equipped with drive-through windows. Id. Mr. Pimentel further stated that the addition of a drive-through was consistent with the Town's Comprehensive Land Use Plan. Id. at 8:8-9. Mr. Pimentel also testified that the proposed project would add fifteen additional parking spaces beyond the requirements of the Ordinance, and thus, would not create any traffic issues. Id. at 13:20-22.

         Mr. Cordeiro, who served as Linear Retail's civil engineering expert, commented on the queue capacity of the proposed drive-through and testified that the proposed plans would accommodate eleven cars in its queue, exceeding the minimum requirement of ten cars. Id at 24:2-10. Mr. Cordeiro additionally explained that the proposed traffic pattern into the queue was designed to both allow access to available parking spaces and to address safety concerns relating to pedestrian traffic. Id. at 23:23-25; 26:9-22.

         Finally, Mr. Cronan, Linear Retail's traffic engineering expert, testified that based on the traffic studies conducted by him-of the Starbucks location on Route 2 in Warwick, the current traffic through the neighboring Papa Gino's parking lot, and the other drive-through windows in the surrounding areas-the addition of a Starbucks drive-through would have little to no impact on traffic. Id. at 49:17-22. Mr. Cronan also explained that with the additional proposed striping, signage, crosswalks, and speed tables, the internal traffic circulation in the plaza would continue to operate in a safe and orderly manner. Id. at 51:6-11. Mr. Cronan further explained that any concerns with ingress, egress, or conflicting traffic patterns would be alleviated by directing the drive-through traffic around Starbucks via the use of directional signs. See id.

         In response to Linear Retail's testimony, the Chair expressed concerns about the amount of signage at the Property and the intent of the design of the shopping center. In order to address the Chair's concerns, Linear Retail's attorney asserted that the applicant was not proposing any free-standing "monument" or "identification" signs. Both Linear Retail's attorney and Mr. Furze further asserted that the proposed signs would be "directional, " would be associated with Starbucks' drive-through window, and would be used solely as a means to facilitate traffic to the drive-through window. Id. at 62:5-63:12; 64:4-8. Mr. Furze further explained that Starbucks would have a panel on the Property's main pylon sign at the Route 44 entrance. Id. at 63:4-8.

At the hearing, no one opposed Linear Retail's application. See id. at 70:19-22. At the close of the August 29, 2012 hearing, the Zoning Board voted 5-0 in favor of approving Linear Retail's application. See August 29, 2012 Decision. The Zoning Board found that "[t]he special use is specifically authorized by Sections 4.4.F.3 and 4.3.F.3 of the Smithfield Zoning Ordinance . . . [it] meets all the criteria set forth in the subsections of the Zoning Ordinance authorizing such special use . . . [and] [t]he granting of the special use permit will not alter the general character of the surrounding area or impair the intent or purpose of the Town of Smithfield Zoning Ordinance or the Comprehensive Plan of the Town." Id. at 3. The approval, however, required Linear Retail to adhere to certain conditions. Id. Specifically, as it relates to the issue before the Court, the Zoning Board required that Linear Retail abide by the following conditions:
"3. The proposed directional signage shall remain part of the Site Layout Plan. The only Starbucks sign shall be on the Mall sign on Route 44.
"4. The applicant shall revise its Site Layout Plan in accordance with the requirements of this Resolution and must gain approval for said revised plan from the Town Engineer prior to the issuance of a certificate of occupancy.
"5. As a condition of approval, the traffic pattern, striping, signage and crosswalks at the site shall comply with the revised Site Layout Plan as approved by the Town Engineer." Id. at 4.

         Upon receiving its special use permit, Linear Retail submitted its Site Layout Plan to the Building Inspector and applied for a building permit. The building permit was granted on November 21, 2012, after which Linear Retail moved forward with construction, including erecting the Sign. On January 17, 2013, after the Sign was installed along the Route 44 entrance, the Deputy Zoning Official sent a letter to Linear Retail explaining that the Sign was in contravention of the August 29, 2012 Zoning Board Decision[6] (August 2012 Decision) and demanding its removal. Another letter, stating the same thing, was again sent to Linear Retail on April 5, 2013.[7]


         May 29, 2013 Clarification Hearing

         Thereafter, on May 29, 2013, Linear Retail appeared[8] before the Zoning Board for clarification of the conditions imposed on the special use permit granted to it.[9] At the clarification hearing, the Zoning Board pointed out that the directional sign approved and the Sign erected varied greatly in size. Specifically, the Zoning Board asserted that pursuant to its August 2012 Decision-granting Starbucks and Linear Retail a special use permit-Starbucks was authorized to construct a 1.2' x 6' Sign on Route 44, which would direct traffic to the Starbucks drive-through window. However, the Sign constructed is approximately 5' x 6'. The Zoning Board further stated that it was their opinion that the approved sign was to be a directional sign, and that the Sign that was actually put up served as an "identification" sign and was in direct contravention of the August 2012 Decision. Tr. 4:19-5:25, May 29, 2013. On behalf of the Zoning Board, the Chair further explained that because the Sign is so large, it "act[s] as an identification sign, " and "even though [Linear Retail] may have put on there, 'Drive-through Enter Here, ' the reality is it's an identification sign, " which was specifically prohibited. Id. at 5:19-25. In response to the Zoning Board's contentions, Mr. Furze stated that, although Linear Retail "agreed to [have] no more monument signs[, ] . . . this is the size [of the] sign [that the Site Layout Plan] show[ed] in that location." Id. at 6:1-7. The Chair pointed out, however, that "[t]hat was the size of the sign that [Linear Retail] showed as an identification sign[.]" Id. at 6:8-10. In response, Mr. Furze claimed that such a labeling was a mistake, as Linear Retail "honestly believed that [they] were putting this here almost at the request of the board to identify this as the primary drive-through entrance" and that it was their "intention [] to ...

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