County Superior Court
Plaintiff: Joseph Brennan, Esq.
Defendant: Edmund L. Alves, Esq.
P. McDonald, Esq. Robert J. Cavanagh, Jr., Esq.
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
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.
Retail wished to locate a Starbucks 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 and 4.4.F-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
29, 2012 Hearing
August 29, 2012, Linear Retail presented its application for
this special use permit to the Zoning Board. In support of its
application, Linear Retail offered testimony 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.
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.
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.
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.
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
"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.
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 (August 2012 Decision) and
demanding its removal. Another letter, stating the same
thing, was again sent to Linear Retail on April 5,
29, 2013 Clarification Hearing
on May 29, 2013, Linear Retail appeared before the Zoning
Board for clarification of the conditions imposed on the
special use permit granted to it. 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 ...