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Lisciotti Development Corp. v. Dreczko

Superior Court of Rhode Island

August 1, 2017


         Washington County Superior Court

          For Plaintiff: William R. Grimm, Esq. Andrew Tugan, Esq.

          For Defendant: Wyatt A. Brochu, Esq.


          GALLO, J.

         Before 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.


         Facts and Travel

         In 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.[1] 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.)

         Lisciotti 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.)

         Lombardo 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.

         During 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. 17, 2015.)

         The 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."[2] Id. at 32.

         At the 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.

         At the 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 departments.
"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 ...

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