LISCIOTTI DEVELOPMENT CORP.
RAYMOND DRECZKO, JR., MICHAEL CHAMBERS, CLIFFORD VANOVER, JOSEPH QUADRATO, JOANN STOLLE, ROBIN QUINN, STEVEN J. WILLIAMS, AND LARA WIBETO in their capacities as members of the CHARLESTOWN ZONING BOARD OF REVIEW
County Superior Court
Plaintiff: William R. Grimm, Esq. Andrew Tugan, Esq.
Defendant: Wyatt A. Brochu, Esq.
the Court is an appeal of a decision from the Charlestown
Zoning Board of Review (the Zoning Board). The Appellant
Lisciotti Development Corporation (Appellant or Lisciotti)
requests that this Court reverse the Zoning Board's
decision regarding its proposal to build a Dollar General
store located on property in Charlestown, Rhode Island (the
Project). The Zoning Board found that the Project was a
department store which is not a permitted use under the Town
of Charlestown Zoning Ordinance (Zoning Ordinance) in the
location proposed. For the following reasons, the Court
reverses the Zoning Board's decision.
2015, Lisciotti provided a preliminary development plan to
the Town of Charlestown (the Town) for land on Old Post Road,
Charlestown, Rhode Island to build a 9000 square foot Dollar
General store. The area is in the Traditional Village
District (TVD), which permits general stores but does not
allow department stores. Town of Charlestown Zoning Ordinance
§ 218-36. On July 17, 2015, Joseph Warner, the Building
Official for the Town (Building Official), issued a decision
finding that the Project constituted a department store, not
a general store, and was therefore not permitted by the
Zoning Ordinance. (Letter from Joseph Warner, July 17, 2015,
Certified R. Part I at 65-66.)
appealed the Building Official's decision, and the Zoning
Board held a public hearing in November 2015. At the hearing,
Lisciotti presented Joseph Lombardo (Lombardo) as its
witness, who was qualified as an expert in planning, zoning
and land development. Lombardo relied on Dollar General's
Mission Statement and the proposed store layout in concluding
that the Project was a general store and not a department
store. See Tr. 12-16, Nov. 17, 2015.
The Dollar General Mission Statement provides, in pertinent
part, as follows:
"We build and run convenient-sized stores to deliver
everyday low prices on products that our customers use every
day. . . . .
"We design small neighborhood stores with carefully
edited merchandise assortments to make shopping simpler. . .
"Dollar General saves you time by staying focused on
life's simple necessities: laundry detergent, toilet
paper, soap, shampoo, socks and underwear…maybe a
gadget or two that you just can't live without. The
average Dollar General customer completes her shopping trip
in less than 10 minutes." (Dollar General Mission
Statement, Certified R. Part I at 138.)
concluded that Dollar General serves the needs of residents
in the area. (Tr. 13-14, Nov. 17, 2015.) Lombardo noted that
Dollar General would organize items by category not separate
departments. Id. at 15-16. He stated that
"[t]hey may have an aisle dedicated, for example, pet
supplies but right next to it would be drinks and beverages .
. . . [s]o there are not separate departments."
Id. at 16; see Proposed Dollar General
Layout, Certified R. Part I at 175.
the hearing, a Zoning Board member asked Lombardo whether he
considered Benny's and Ocean State Job Lot stores to be
department stores. Lombardo responded that he would
characterize the stores as department stores, as those
particular stores with which he was familiar were bigger
stores that were "regional" and "clearly
attracting a much bigger area [of customers] in order to
survive" as compared to Dollar General. (Tr. 21, Nov.
Building Official also testified at the hearing, and he
explained that he had struggled to fit Dollar General into
one of the categories in the Zoning Ordinance. Id.
at 29-32. Ultimately, he determined that the Project fit
"more closely into a department store and also more
closely fit into our Comprehensive Plan and the intent of
the Zoning Ordinance." Id. at 32.
end of the hearing, the Zoning Board affirmed the Building
Official's decision. Id. at 43-44. Lisciotti
appealed the Zoning Board's decision, and this Court
remanded the case back to the Zoning Board, ordering the
Zoning Board to review the Building Official's decision
de novo. See Case No.
WC-2015-0615. In accordance with the Remand Order, the Zoning
Board held public hearings on August 26, 2016 and October 18,
2016 to reconsider the matter.
public hearing after remand, a number of Zoning Board members
questioned Lisciotti's counsel regarding the meaning of a
"department" within a store. First, Zoning Board
member Joseph Quadrato engaged in the following discussion:
"MR. GRIMM: There's no sign saying clothespin
department or household goods. They're all separate
categories, disparate categories of items on an aisle. . . .
They're not organized by departments. . . . .
"MR. QUADRATO: So you're saying you don't pay
any attention to organization of like product lines to make
it easier for your customer to shop?
"MR. GRIMM: I did not say that. The products are
organized by categories, but they are not within any
"MR. QUADRATO: So it's a category, not a department?
"MR. GRIMM: For example, you'll find all the socks
in one location on an aisle somewhere. You might find the
underwear in a different location. There are no departments
in the store. That's the ...