CLYDE DEVELOPMENT CO., LLC and CUMBERLAND FARMS, INC.
TOWN OF SMITHFIELD ZONING BOARD OF REVIEW and ANTONIO S. FONSECA, DAVID GREENE, S. JAMES BUSAM, PETER FOGARTY and STEPHEN WRIGHT, in their capacity as Members of the Town of Smithfield Zoning Board of Review
County Superior Court
Plaintiff: Elizabeth M. Noonan, Esq.
Defendant: Sally P. McDonald, Esq.
Clyde Development Co., LLC (Clyde) and Cumberland Farms, Inc.
(Cumberland Farms) (collectively, Appellants) appeal a
decision (Decision) from the Town of Smithfield Zoning Board
of Review (Zoning Board) denying a special use permit for
dimensional relief for a side-yard setback (Special Use
Permit). Jurisdiction is pursuant to G.L. 1956 §
45-24-69. For the reasons set forth herein, the Decision is
owns a parcel of land located at 945 Douglas Pike in
Smithfield, Rhode Island (the Property). Zoning Bd. Hr'g
Tr. 3:3-5, Oct. 30, 2013. Cumberland Farms intends to
purchase the Property and build a convenience store and gas
station. Id. at 3:3-17. The Property is zoned
"Highway Commercial." Decision at 2. At the time,
an automotive filling station was not a permitted use in an
area zoned Highway Commercial. Id. at 2-3.
Consequently, Clyde and Cumberland Farms appeared before the
Zoning Board on October 30, 2013 and January 29, 2014 seeking
a special use permit that would permit Cumberland Farms to
construct the proposed gas station. Clyde and Cumberland Farms
also sought a second Special Use Permit for dimensional
relief from Smithfield Zoning Ordinance § 4.4G-3(B),
which requires a minimum 50' setback from all property
lines for an automotive filing station. Decision at 4.
Cumberland Farms proposes to build the gas station 20.4'
from the northerly property line. Id. As a result,
dimensional relief for 29.8' is required.
Zoning Board heard testimony from a variety of experts. Eric
M. Prive (Mr. Prive), a registered engineer, testified that
the Property contains 40, 202 square feet of land.
Id. He stated that Cumberland Farm intends to build
a 4476 square foot building. Id. The proposal also
includes six gasoline pumps and two 20, 000 gallon storage
tanks that will be placed underground. Id. Finally,
Mr. Prive indicated that the gas station would have
twenty-one parking spaces. Id. Jason T. Adams (Mr.
Adams), an expert in traffic engineering, testified that the
gas station would not increase traffic in the area.
Id. at 5-6. Mr. Adams acknowledged that the area was
a very busy thoroughfare. Id. at 6. He stated that a
left-hand turn into or out-of the gas station would be quite
difficult. Id. Therefore, Cumberland Farms proposed
to make a "right-turn out only" exit. Zoning Bd.
Hr'g Tr. 20:1-20, Jan. 29, 2014. Mr. Adams also noted
that there is another gas station directly across the street.
Id. at 24:3-19. As a result, many individuals will
likely use the gas station across the street, as opposed to
taking the difficult left-hand turn. Id. Finally,
Thomas O. Sweeney (Mr. Sweeney), a real estate appraiser and
broker, testified that the construction of a gas station on
the Property would not have a negative impact on the overall
characteristics of the surrounding area. Decision at 7. At
the conclusion of the January 29, 2014 hearing, the special
use permits were taken under advisement.
March 24, 2014, the Zoning Board denied the special use
permits. Id. at 8-9. The Decision primarily focuses
on negative traffic impacts. Id. at 5-8. The Zoning
Board found that Douglas Pike is a four-lane, two-way roadway
with a speed limit of 40 m.p.h. Id. at 5. Moreover,
the Zoning Board noted that all of the members of the Zoning
Board frequently travel the roadway and that "existing
traffic is extremely heavy." Id. at 6. The
Zoning Board made reference to Mr. Adams' study,
explaining that traffic was likely to increase by 22% by
2018. Id. at 5. Emphasis was placed on the fact that
the gas station would increase the number of tricky left-hand
turns. Id. at 6. Ultimately, the Zoning Board failed
to adopt Mr. Adams' assumption that individuals would use
the gas station across the street rather than make a
left-hand turn: "The Traffic Study presents no empirical
data to support this conclusion. It simply relies on the
assumption that Cumberland Farms patrons will seek out the
most efficient routes for entering and exiting the site . . .
." Id. Lastly, the Zoning Board concluded that
the increase in left-hand turns in the area would increase
the risk of accidents. Id.
timely appealed the Decision to the Superior Court on April
11, 2014. The issue before the Court is now much narrower
than originally intended. After the Zoning Board denied the
special use permits, the Smithfield Town Council amended the
Zoning Ordinance to permit automobile filling stations in
areas zoned Highway Commercial. As a result, the proposed gas
station is in substantial compliance with the existing Zoning
Ordinance. The Town of Smithfield Zoning Office has issued a
zoning certificate, which indicates that aside from the
dimensional relief from the northern boundary line, the
proposal is in compliance with the Zoning Ordinance.
See Appellants' Mem., Ex. P. As a result, the
only thing that currently stands between Cumberland Farms and
its new location is 29.8 feet. Both parties concede that this
is the sole narrow issue before the Court. See
Appellants' Mem. at 12; Appellees' Mem. at 1 n.1.
urge this Court to reverse the Zoning Board and grant the
Special Use Permit, because the record indicates that the
dimensional relief is in accord with the public convenience
and welfare. Appellants claim that there is uncontested
testimony that the gas station conforms with the surrounding
area. Moreover, Appellants point to the fact that the
Smithfield Town Council amended the Zoning Ordinance after
the Decision was released, arguing that this action evidences
that the gas station is in accord with the public convenience
opposition, the Zoning Board maintains that the record
clearly indicates that it weighed the evidence presented and
determined that the negative traffic impacts were not in the
best interest of the public. The Zoning Board correctly
claims that the Court does not have the authority to reassess
the evidence, positing that the Zoning Board took the
evidence as a whole and found that the traffic impacts were
too adverse to grant the Special Use Permit. In reply,
Appellants claim that these traffic impacts are no longer
relevant, as they related to the special use permit that
would permit an automobile filling station in a Highway
Commercial zone. Appellants continued by explaining that the
record is devoid of any evidence which would indicate that
dimensional relief of 29.8' is not in accord with the
II Standard of Review
Superior Court possesses jurisdiction to review a zoning
board decision pursuant to § 45-24-69. The statute
"The court shall not substitute its judgment for that of
the zoning board of review as to the weight of the evidence
on questions of fact. The court may affirm the decision of
the zoning board of review or remand the case for further
proceedings, or may reverse or modify the decision if
substantial rights of the appellant have been ...