Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Batista v. Town of North Kingstown

Superior Court of Rhode Island

August 25, 2016


         Washington County Superior Court

          For Plaintiff: Matthew F. Callaghan, Jr., Esq.; James M. Callaghan, Esq.

          For Defendant: James H. Reilly, Esq.


          MATOS, J.

         Appellants 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 hereby affirmed.


         Facts and Travel

         Appellants own a parcel of land situated at the intersection of Route 102[1] (Phillips Street) and Route 1[2] (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 requirements.

         Lot 56 is a corner lot that technically contains two front-yards[3] 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.

         In 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.

         The 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.

         A 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.

         Mr. 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 47:21-16.

         Joseph 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.

         Robert 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. [4] 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.

         Chief 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, 69:6-18.

         Finally, 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.

         At the 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.

         The 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, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.