County Superior Court
Plaintiff: Matthew F. Callaghan, Jr., Esq.; James M.
Defendant: James H. Reilly, Esq.
Robert Batista, David Batista (Mr. Batista), Claudio Amaral,
and Theresa Amaral (collectively, Appellants) appeal a
decision (Decision) from the North Kingstown Zoning Board of
Review (Zoning Board), denying two variances for dimensional
relief. Jurisdiction is pursuant to G.L. 1956 §
45-24-69. For the reasons set forth herein, the Decision is
own a parcel of land situated at the intersection of Route
(Phillips Street) and Route 1 (Tower Hill Road) in North
Kingstown (Lot 56). Zoning Bd. Hr'g Tr. 3:2-5, Nov. 27,
2012. Lot 56 is a 28, 439 square foot rectangular corner lot
that is zoned Neighborhood Business. See
Appellants' Mem., Ex. E; Decision at 1. Appellants intend
to build a 3000 square foot building (the Building) on Lot 56
which would house two businesses-a Dunkin Donuts shop and a
yet to be determined retail establishment. Decision at 1.
Id. Both uses are permitted under the North
Kingstown Zoning Ordinance. North Kingstown Zoning Ordinance
art. III, Land Use Table; see also Decision ¶
1. The peculiarities of the lot, however, require variances
in order to accommodate the Town's established setback
is a corner lot that technically contains two
front-yards and thus, it required that Appellants
request two variances (the Application). Under the North
Kingstown Zoning Ordinance, a parcel zoned Neighborhood
Business does not have a fixed front yard setback
requirement. Instead, the front yard setback "shall be
the average of the existing setbacks on the same side of the
street as the subject site for distance of 500 feet on both
sides." North Kingstown Zoning Ordinance §
21-87(b)(2). Following this calculation, the Building must be
set back 37.5 feet from Phillips Street and 45 feet from
Tower Hill Road. Decision at 3. Appellants sought a 23.5 foot
variance from the setback requirement on Phillips Street and
a 30.5 foot variance from the setback requirement on Tower
Hill Road which would allow Appellants to construct the
Building within 14 and 14.5 feet from Phillips Street and
Tower Hill Road, respectively. Id.
addition, North Kingstown Zoning Ordinance § 21-87(b)(1)
mandates that the parking lot be located in the rear of the
principal structure. The parking cannot be situated in the
required rear or side yard setback or buffer area. North
Kingstown Zoning Ordinance § 21-87(b)(1). Existing
zoning regulations require nineteen parking spaces for the
Building, sixteen for the Dunkin Donuts shop and three for
the retail space. See North Kingstown Zoning
Ordinance § 21-272. Appellants claim that the variances
are necessary to accommodate the requisite rear parking.
Zoning Bd. Hr'g Tr. 11:17-21:1, Nov. 27, 2012.
North Kingstown Planning Commission (the Planning Commission)
reviewed the Application on May 1, May 29, and August 27,
2012. See Planning Commission Mins. (May 1, 2012);
Planning Commission Mins. (May 29, 2012); Planning Commission
Mins. (Aug. 7, 2012). The Planning Commission recommended
that the Zoning Board deny the Application. See Mem.
of Rebecca P. Lamond, Principal Planner, to the Zoning Board
at 5 (Nov. 20, 2012). The Planning Commission stressed
concerns about the intensity of the project, the size of the
Building, the parking requirements, and impact on traffic.
Id. at 4-5.
public hearing was held before the Zoning Board on November
27, 2012. David Taglianetti (Mr. Taglianetti), a civil
engineer, testified that the proposed project meets all other
zoning requirements aside from the front yard setbacks.
Zoning Bd. Hr'g Tr. 13:22-25, Nov. 27, 2012. Mr.
Taglianetti also testified that he was contracted by
Appellants to design a building according to Appellants'
specifications. Id. at 44:23-45:9. When asked
whether the Building could be relocated to accommodate the
setback requirements, Mr. Taglianetti responded that there
would be inadequate space for parking. Id. at
44:8-13. Mr. Taglianetti was then asked: "[I]s there a
building that would meet all of those requirements, including
the parking requirement"? Id. at 44:14-16. Mr.
Taglianetti maintained that the Building being proposed could
not meet all of the requirements, but "[t]here may be a
building" that could. Id. at 44:17-19.
Batista testified that he currently owns and operates four
Dunkin Donuts shops in the North Kingstown area. Id.
at 16:12-15. He elaborated on the proposed Dunkin Donuts,
noting that it would produce more foot traffic as it would
not contain a drive-thru window. Id. at 17:8-18:13.
Mr. Batista admitted that the Dunkin Donuts itself would only
require approximately 1400 to 1450 square feet. Id.
at 48:7-12. He explained that he also invests in properties
and is seeking to add the duplicative retail space in order
to have an additional tenant and rent. Id. at
Lombardo (Mr. Lombardo), a land use planning consultant,
summarized a planning report that he prepared. Id.
at 20:4-29:5. Mr. Lombardo testified that this particular
Dunkin Donuts shop would be in accordance with the
comprehensive plan and surrounding area. Id.
Elaborating, Mr. Lombardo explained that the Neighborhood
Business District aims to serve the community, and this
particular Dunkin Donuts shop would serve community members
as it would be accessible by foot. Id. at
21:13-22:15. Mr. Lombardo partially based his opinion on
experience he gained from working as a location planner for
Bess Eaton Donuts. Id. at 29:9-30:2. Mr. Lombardo
also stated that Lot 56 was well suited for the Building and
its proposed uses due to its flat surface and visibility from
the intersection. Id. at 24:7-25:1. Finally speaking
to the standard of review, Mr. Lombardo maintained that the
Building could not be built in compliance with the Zoning
Ordinance. Id. at 27:7-11; 27:20-28:3. He also noted
that Lot 56 has been vacant for some time and that Appellants
would experience more than an inconvenience if the Zoning
Board denied the Application. Id. at 28:4-10.
J. Clinton (Mr. Clinton), a transportation traffic engineer,
detailed the current traffic conditions in the area.
Id. at 31:18-42:15. Mr. Clinton's report
indicates that the intersection currently operates at a level
C during weekday mornings at peak hours and a level D during
weekday evenings at peak hours and Saturday mid-day hours.
Appellants' Mem., Ex. Q at 5. If the Building is not
constructed, the report indicates that traffic will only
increase on Saturdays during mid-day hours, to a level E.
Id. Regardless, Mr. Clinton testified that the
Building would only minimally increase traffic because the
Dunkin Donuts will not have a drive-thru; therefore, the
majority of customers will be pedestrians. Zoning Bd.
Hr'g Tr. 35:25-36:23; 37:15-38:6; 37:15-38:6. Likewise,
customers often avoid congested areas when selecting a
convenience establishment. Id. at 36:17-23.
of Police Thomas Mulligan (Chief Mulligan) testified that the
Police Department reviews all applications referred from the
Planning Commission. Id. at 65:10-16. Chief Mulligan
stated that the Application gave him pause because the
increased amount of pedestrians in a heavy traffic area made
way for a dangerous situation. Id. at 66:21-67:12,
twelve neighborhood residents spoke in opposition to the
Application's approval. Id. at 76:8-95:15. The
neighbors stressed that they were concerned about adding
further congestion to the area. Id. at 86:24-89:5.
More specifically, they explained that Wickford Middle School
is located across the street from Lot 56. Id. at
79:3-83:12. The neighbors claimed that the diminished
visibility raised safety concerns for children and other
pedestrians in the area, especially runners. Id. at
89:8-90:7. Moreover, neighbors explained that it was
difficult to assess the impact of the retail space as its use
is unknown. Id. at 84:21-85:1.
end of the hearing, the Zoning Board commented on the fact
that in 1997, Mr. Batista sought to construct a Dunkin Donuts
with a drive-thru. Id. at 101:17-23. Another
application was made in 1998. Id. at 102:2. Neither
application made it past the Planning Commission.
Id. at 101:25-102:3. After further discussion, the
Zoning Board voted to deny the Application. Id. at
111:13-112:13. The Decision was issued on December 4, 2012.
Zoning Board agreed that both the Dunkin Donuts and retail
establishment were permitted uses under the Land Use Map.
Decision ¶ 1. However, the placement of the Building
raised visibility concerns given the surrounding area-namely,
that the area is a heavily traveled roadway. Decision
¶¶ 5-7. Turning to the standard of review, the
Zoning Board found that the hardship was caused by Lot 56
itself, not the surrounding area or the fault of Appellants.
Decision ¶¶ 17-18. However, the Zoning Board denied
the Application, because Appellants did not request the least
relief necessary, and the variances were being used for
financial gain. Decision ¶¶ 12, 15, 19. As to the
latter, the Zoning Board found that the unknown second use,
the retail establishment, was intended for financial gain.
Decision ¶ 12. In relation to the former, the Zoning
Board found that Appellants could have considered other
options, including "a smaller building, turning the
building on the parcel, ...