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Clyde Development Co., LLC v. Town of Smithfield Zoning Board of Review

Superior Court of Rhode Island

July 29, 2016

CLYDE DEVELOPMENT CO., LLC and CUMBERLAND FARMS, INC.
v.
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

         Providence County Superior Court

          For Plaintiff: Elizabeth M. Noonan, Esq.

          For Defendant: Sally P. McDonald, Esq.

          DECISION

          PROCACCINI, J.

         Appellants 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 hereby reversed.

         I

         Facts and Travel

         Clyde 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.[1] 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.

         The 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.[2]

         On 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.

         Appellants 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.

         Appellants 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 and welfare.

         In 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 public welfare.

          II Standard of Review

         The Superior Court possesses jurisdiction to review a zoning board decision pursuant to § 45-24-69. The statute provides:

"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 ...

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