Superior Court Rules for Cumberland Farms in Case with City Zoning Board

City Council was in favor, but two votes on the Zoning Board axed the plan - until now:

"A slap in the face! That’s what the Kent Heights Neighborhood was dealt by two members of the zoning board as it voted down the new Cumberland Farms proposal at the corner of Pawtucket Avenue and Wampanoag Trail. The small mindedness of two zoning members killed the project which would have brought millions of dollars of private investment to a section of our neighborhood that is beginning to look like a third world country," was a statement from the Kent Heights Neighborhood Association after the Pawtucket Avenue Cumberland Farms proposal was denied by the City Zoning Board in 2015.

Although the Zoning Board did not approve the business expansion as requested, the East Providence City Council was in favor of the project. However the council could not overturn the zoning vote legally and it had to be resolved by the Superior Court.

An objector to the proposed variance was Maria Claudino, who lives on Wampanoag Trail and will abut the expanded business property. The Claudino home is also across the street from a church and fire station. Cumberland Farms representatives pledged to erect a soundproofing fence and a row of trees between the Claudino property and store, but that didn't appease the family.

"The perimeter of the Kent Heights Neighborhood has been plagued by derelict lots, rundown properties, substandard roads and sidewalks and deteriorating bridges," wrote Joe Botelho on behalf of the KHNA. "Cumberland Farms wishes to invest millions of dollars in improving the southwest gateway of the neighborhood by replacing its current store with an expanded and improved operation, which currently serves many neighborhood residents. We believe that such a development would greatly improve the neighborhood and serve to further bootstrap, high quality developments in the immediate area. At best we will be left with a cigarette and Keno stand and at worst it will be another derelict lot to add to the collection our neighborhood has been piling up," said Botelho.

In a ruling filed today, March 24, 2016, The Rhode Island Superior Court ruled that "Upon review of the record before it, this Court finds that the Zoning Board's decision must be reversed, as it is in error of law and clearly erroneous. The Zoning Board's Decision was in violation of its statutory and ordinance provisions, pursuant to § 45-24-69( d)(l). Therefore, consistent with this opinion, this matter is reversed and Cumberland Farms' requests for dimensional relief are granted."

The Court further stated that "As a result, upon review of the record, the Court finds that the Zoning Board's Decision is clearly erroneous as the record demonstrates that Cumberland Farms sustained its burden of proving that a hardship exists which justifies granting its requested relief. As the nay votes were neither legal nor factually supported, a remand would only result in further delay and unnecessarily extend the harm. Accordingly, this Court must reverse the Zoning Board's Decision."

The zoning board previously voted on November 4th, 2015 to deny the project. The board actually voted 3-2 in favor of the expansion plan with Chairman Gene Saveory, Pier-Mari Toled, and Mike Beauparlant voting to approve, while John Braga and Dick Croke voted against. Member Tony Cunha opted not to vote as his wife is an employee of Cumberland Farms. However according to state law a super majority (4-1) vote is needed to approve this kind of exemption variance.

"We voted as we did on this Cumberland Farms thing, it may be appealed and we'll see what happens. That's all I can say," said Croke back after the board's vote to deny.

Ward 3 councilman and Mayor Tom Rose said today that he is very happy with this ruling. "This is the start of good news coming into the City. We have been doing all we can to support business and bring new business here. I supported Cumberland Farms before and feel great with this Court ruling," said Mayor Rose.

At-Large Councilwoman Tracy Capobianco was also thrilled with the decision. "It was in our best interest to move forward in Court with this case. This is a great win for the City," said Capobianco. "We want to attract business not hinder the process of opening or improving current businesses. This was difficult to bear when it first happened as this City Council was fully in favor of the Cumberland Farms expansion. It will be good for the neighbors, our tax base, a few more jobs and helps us to project the image of being pro-business," she added. "Our council was at that zoning hearing to support this plan and this is a win-win for East Providence," said Capobianco.