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Love's Travel Stops and Country Stores, Inc. v. DiOrio

Superior Court of Rhode Island

March 21, 2014

ALFRED DiORIO, HOWARD WALKER, RAYMOND COX, HAZEL DOUTHITT, and JOSEPH ESCHER, in their capacities as members of the Town of Hopkinton Planning Board, and PHILIP SCALISE, DANIEL HARRINGTON, JONATHAN URE, RONNIE SPOSATO, HARRY BJORKLAND, and C. WRIGLEY BYNUM, in their capacities as members of the Town of Hopkinton Zoning Board of Review, sitting as the Platting Board of Appeals

Washington County Superior Court

For Plaintiff: Kelly M. Fracassa, Esq. John O. Mancini, Esq.

For Defendant: Todd J. Romano, Esq.



Before this Court is an appeal from a decision of the Zoning Board of Review for the Town of Hopkinton (Town), sitting as the Platting Board of Appeals (Platting Board), filed by Love's Travel Stops and Country Stores, Inc. (Love's or Applicant)[1] and owners of the property at issue (the Gingerella Family, collectively, Appellants).[2] In its decision, the Platting Board upheld the Hopkinton Planning Board's (Planning Board) decision to deny a Master Plan Application that had been filed by Love's. The Appellants contend that the Planning Board's decision contains multiple legal errors and seeks this Court to reverse that decision and approve the Master Plan Application. Jurisdiction is pursuant to G.L. 1956 § 45-23-71.

I Facts and Travel

The property at issue in this case consists of an unimproved 18.4 acre parcel, otherwise known as Lot No. 59 on Tax Assessor's Plat 7 in the Hopkinton Land Evidence Records (the Property). (Tr. at 3, Apr. 1, 2009 (Tr. I)). Located in a manufacturing zone since the inception of the Town's Zoning Ordinance (the Ordinance) in 1971, the Property is bounded by Route 3, Interstate Route 95, a state-owned Park-and-Ride, and another unimproved parcel. (Tr. I at 5; Tr. at 57, May 6, 2009 (Tr. II)). It is undisputed that the property across the street was zoned as residential until 2006, at which point it was rezoned as manufacturing. (Tr. II at 57, 103).

Love's has proposed developing the Property as a travel stop for passenger vehicles and tractor-trailer trucks. Specifically, the proposal involves installation of a twenty-four hour facility with a single, 10, 800 square-foot building containing a fifty-six seat, drive-thru Arby's fast-food restaurant, a gift shop, restrooms, and a fuel-filling station. (Tr. I at 7). The fuel-filling station would accommodate automobile traffic in the front of the building and diesel trucks in the back of the building. (Tr. I at 7-8). To accommodate these uses, the site would contain eighty-nine automobile parking spaces as well as fifty-six tractor-trailer truck stalls, each measuring nine by eighteen feet. (Tr. I at 10). The truck stalls would provide temporary overnight parking for truckers, most of whom would leave their truck engines running for heating or cooling purposes. (Tr. I at 63-64).

On January 1, 2008, the Town's zoning official issued three zoning certificates for the Property. The certificates designated the Property as being within a manufacturing zone, and each required the applicant to obtain special use permits. Accordingly, on October 2, 2008, Love's filed an application for three special use permits; namely, Use Category 554 (gasoline service stations); Use Category 581 (eating places) and Use Category 5995 (gift, novelty and souvenir shop, convenience store as accessory to gasoline service station).

On November 10, 2008, Love's submitted a Master Plan Application for a major land development project; however, on December 19, 2008, the Town Planner, James Lamphere (Mr. Lamphere), returned the Master Plan Application as incomplete. Love's updated its Master Plan Application and, on March 4, 2009, Mr. Lamphere certified the Master Plan Application as complete. The Planning Board conducted public informational meetings on the Master Plan Application on April 1, May 6, and July 1, 2009.

At the meetings, Love's presented testimony from the following individuals: Christopher Duhamel, professional engineer; Rick Shuffield, Director of Real Estate and Development at Love's; Thomas Daley, environmental consultant; Mark Speer, professional engineer; John Carter, registered landscape architect; Judith Zimmerman-Reich, professional traffic operations engineer; David A. Gingerella, part-owner of the Property; Daniel J. Urso, licensed certified public accountant; and Michael Lenihan, certified real estate appraiser. Speaking in opposition to the application were Dan Prentiss, on behalf of the Wood-Pawcatuck Watershed Association and the Hopkinton Historical Association; and Daniel W.Varin, planning consultant. In addition to testimonial evidence, numerous documentary exhibits were introduced at the meetings.

At the conclusion of the July 1, 2009 meeting, Planning Board member Howard Walker read a lengthy motion into the record, the adoption of which would constitute the Planning Board's decision. The Planning Board unanimously approved the motion and denied Love's application for a master permit. The Platting Board subsequently upheld the decision, and this timely appeal ensued.[3]

Additional facts will be supplied as needed in the analysis portion of this Decision.

II Standard of Review

The Superior Court's review of a board of appeal decision is governed by § 45–23–71, which provides that:

"The court shall not substitute its judgment for that of the planning board as to the weight of the evidence on questions of fact. The court may affirm the decision of the board of appeal or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions or decisions which are:
"(1) In violation of constitutional, statutory, ordinance or planning board regulations provisions;
"(2) In excess of the authority granted to the planning board by statute or ordinance;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Sec. 45–23–71(c).

It is well established that "the Superior Court does not engage in a de novo review of board decisions pursuant to this section." Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998) (citing E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 284-85, 373 A.2d 496, 501 (1977)). Rather, it "reviews the decisions of a plan commission or board of review under the 'traditional judicial review' standard applicable to administrative agency actions." Id. Thus, unless the decision "is affected by an error of law[, ]" West v. McDonald, 18 A.3d 526, 531 (R.I. 2011), the Court's examination "is limited to a search of the record to determine if there is any competent evidence upon which the agency's decision rests.[4] If there is such evidence, the decision will stand." Restivo, 707 A.2d at 665.

In conducting its examination, the Court is mindful that it must "give[] deference to the findings of fact of the local planning board." West, 18 A.3d at 531 (citing Munroe v. Town of East Greenwich, 733 A.2d 703, 705 (R.I. 1999); Kirby v. Planning Bd. of Review of Middletown, 634 A.2d 285, 290 (R.I. 1993)). The Court "lacks authority to weigh the evidence, to pass upon the credibility of witnesses, or to substitute [its] findings of fact for those made at the administrative level[.]" Restivo, 707 A.2d at 666 (quoting Lett v. Caromile, 510 A.2d 958, 960 (R.I. 1986)). However, it is axiomatic that "[a] planning board's determinations of law, like those of a zoning board or administrative agency, are not binding on the reviewing court; they may be reviewed to determine what the law is and its applicability to the facts." West, 18 A.3d at 532; see Pawtucket Transfer Operations, 944 A.2d at 859 (citing Gott v. Norberg, 417 A.2d 1352, 1361 (R.I.1980)).

III Analysis

The Appellants contend that the Platting Board erroneously affirmed the Planning Board's decision for a number of reasons. They assert that the Planning Board erroneously concluded that the Master Plan Application was not consistent with the Comprehensive Plan, and that recent amendments to the Comprehensive Planning and Land Use Act control the outcome of this appeal. They additionally contend that the Planning Board erroneously subjected its Master Plan Application to a higher standard of proof; namely, that standard of proof which is applicable to preliminary and final plan approval. The Appellants next maintain that the Planning Board usurped the role of the Zoning Board when it concluded that the Planning Board could not approve the master plan unless the project met the requirements for a special use permit. Lastly, Appellants aver that the Planning Board mistakenly concluded that the installation of a non-public, non-transient well automatically would place the property into a primary aquifer protection zone in which gas stations and underground storage tanks (USTs) are prohibited.

A Conforming the Ordinance to the Comprehensive Plan

In its decision, the Planning Board determined that, in the event of an inconsistency between the Town's Comprehensive Plan and the Ordinance, the Comprehensive Plan controls the outcome of the application. During the relevant period, the Comprehensive Plan designated the Property as mixed-use village, while the Ordinance and zoning map designated it for manufacturing use. The Planning Board recognized that, although these designations potentially could be considered inconsistent, it ultimately concluded that they could be harmonized in such a way that the Master Plan Application and the Comprehensive Plan were consistent. The Platting Board upheld this interpretation by the Planning Board.

Chapter 22.2 of title 45, entitled the "Rhode Island Comprehensive Planning and Land Use Act" (CPLURA), mandates each municipality in the state adopt a comprehensive plan in order to direct "rational decision making regarding the long term physical development of the municipality." Sec. 45-22.2-5. Chapter 24 of title 45 mandates that zoning ordinances be consistent with associated comprehensive plans and "provide that in the instance of uncertainty in the construction or application of any section of the ordinance, the ordinance shall be construed in a manner that will further the implementation of, and not be contrary to, the goals and policies and applicable elements of the comprehensive plan." Sec. 45–24–34(a). In addition, § 45–24–34(b) requires that "[t]he city or town shall bring the zoning ordinance or amendment into conformance with its comprehensive plan as approved by the chief of the division of planning of the department of administration or the superior court in accordance with its implementation schedule as set forth in said plan." Sec. 45–24–34(b). However, "the provisions requiring that zoning ordinances conform to comprehensive plans within eighteen months are directory rather than mandatory." West, 18 A.3d at 535. Consequently, "a municipality's failure to amend a zoning code within eighteen months does not eviscerate the goals, requirements, and mandates of a municipality's comprehensive plan." Id.

It is undisputed in this case that the Town did not amend its Ordinance to be in conformance with its Comprehensive Plan. Notwithstanding this failure, the Planning Board concluded that any inconsistency between the Comprehensive Plan's mixed-use village classification and the Ordinance's manufacturing-use district could be harmonized in such a way as to be consistent. Thus, a threshold issue for the Court to address is whether the two provisions may be reconciled as consistent.

With respect to issues of statutory interpretation, the Court engages in a de novo review. See West, 18 A.3d at 532. Our Supreme Court has declared that "[a] planning board's determinations of law, like those of a zoning board or administrative agency, are not binding on the reviewing court; they may be reviewed to determine what the law is and its applicability to the facts." Id. See also McAninch v. State of Rhode Island Dept. of Labor and Training 64 A.3d 84, 86 (R.I. 2013) ("Although this Court affords the factual findings of an administrative agency great deference, questions of law—including statutory interpretation—are reviewed de novo.") (quoting Heritage Healthcare Services, Inc. v. Marques, 14 A.3d 932, 936 (R.I. 2011)). It is axiomatic

"that the rules of statutory construction apply in the same manner to the construction of an ordinance. When a legislative enactment consists of clear and unambiguous language, this Court will interpret it literally, giving the words contained therein their plain and ordinary meaning. Additionally, when the provisions of a statute are unclear or subject to more than one reasonable interpretation, the construction given by the agency, or board, charged with its enforcement is entitled to weight and deference, as long as that construction is not clearly erroneous or unauthorized. This is true even when other reasonable constructions of the statute are possible." West, 18 A.3d at 532 (internal citations, quotations, and footnote omitted).

Notwithstanding the foregoing, however, it must be remembered that '"[t]he plain meaning approach . . . is not the equivalent of myopic literalism, and it is entirely proper for [the Court] to look to the sense and meaning fairly deducible from the context."' Peloquin v. Haven Health Ctr. of Greenville, LLC, 61 A.3d 419, 425 (R.I. 2013) (quoting Mendes v. Factor, 41 A.3d 994, 1002 (R.I. 2012)). Thus, the Court "must consider the entire statute as a whole; individual sections must be considered in the context of the entire statutory scheme, not as if each section were independent of all other sections." Id. This also means that the Court will not interpret a statute to achieve a meaningless or absurd result. See Ryan v. City of Providence, 11 A.3d 68, 71 (R.I. 2011) (stating that "in interpreting a statute or ordinance, we first accept the principle that statutes should not be construed to achieve meaningless or absurd results") (internal quotations omitted). Ultimately, the Court's '"goal is to give effect to the purpose of the act as intended by the Legislature."' McAninch, 64 A.3d at 86 (quoting Labor Ready Ne., Inc. v. McConaghy, 849 A.2d 340, 344 (R.I. 2004)).

In its decision, the Planning Board observed that the goals of the Comprehensive Plan include preservation of the rural character of the town and the integrity of its landscape. (Tr. at 141, July 1, 2009 (Tr. III)). It further observed that the Comprehensive Plan designates the Property for mixed-use village, and that such a

"designation envisions a mixture of commercial, residential, office and resident -- commercial, residential, office uses in a small-scale village-like setting. Buildings would be small and serve local needs, not serve as a regional hub.
"The buildings, their uses and their layout, would be consistent with the rural character of the town. The proposed truck stop is utterly inconsistent with the mixed use village concept. There is nothing small scale or village like in the business the Applicant proposes." Id. at 141-42.

In reaching this conclusion, the Planning Board stated: "Quite simply, we must read the comprehensive plan and the zoning code together to prevent manufacturing uses on this site but only if they're scale-setting and their appearance [is] consistent with the mixed use village concept, which the Applicant's project, rest assuredly, is not." Id. at 143.

At the subsequent Platting Board hearing, the Chairman of the Planning Board, Alfred DiOrio (Chairman DiOrio), noted that the Planning Board's decision "reconciled the master plan compared to the zoning code . . . [and observed] that the Planning Board must read the comprehensive plan and zoning code together to permit manufacturing uses on the site but only if they're scale-setting and their appearance is consistent with the mixed use village concept, which the Appellant's project was not." (Tr. of Platting Board of Review at 10-11, Nov. 19, 2009) (Platting Board Tr., Nov. 19, 2009).

The Platting Board then affirmed the Planning Board's decision, concluding

"that the project proposed by Love's Travel Stops & Country Stores, Inc. is not consistent with the Comprehensive Plan and that we find that there was no error of law since 1) the current status of the law states that the comprehensive plan provides the binding framework for use of property in the Town and to the extent that it is inconsistent or conflicts with the zoning ordinances, the comprehensive plan governs and 2) the Planning Board found that the Hopkinton Comprehensive Plan and the Hopkinton Zoning Ordinances were consistent as they apply to this project, however, Love's Travel Stops & Country Stores, Inc.'s proposed project, because of its scale and appearance—not because of the proposed use, did not conform with the Planning Board's interpretation of a mixed use village." (Decision of the Platting Board of Review at 2).

Our Supreme Court has declared that "[a]lthough each has its own purpose, a municipality's comprehensive plan and its zoning ordinance are intended to work in concert with one another." West, 18 A.3d at 535-36. However, a comprehensive plan, rather than being a "general-policy statement[, ] . . . establishes a binding framework or blueprint that dictates town and city promulgation of conforming zoning and planning ordinances." Id. at 539. Accordingly,

"[a] central goal of comprehensive planning, as articulated by the General Assembly, is to encourage cities and towns to plan for orderly growth and development and the appropriate use of land, as well as for the protection and management of land and natural resources. See § 45–22.2–3. In contrast, municipal zoning regulations are necessary 'to establish and enforce standards and procedures for the proper management and protection of land, air, and water as natural resources, and to employ contemporary concepts, methods, and criteria in regulating the type, intensity, and arrangement of land uses * * *.'" West, 18 A.3d at 536 (quoting § 45–24–29(b)(3)).

The Comprehensive Plan at issue identifies the mixed-use village classification as "areas for commercial, office, retail and mixed-use residential structures situated within a small-scale village context. Large-scale office development such as office parks are permitted but will be subject to detailed site plan review and performance standards." Comprehensive Plan of the Town of Hopkinton, adopted January 2004, at VII-25. No further description or definition of this classification is provided by the Comprehensive Plan.

Section 5 of the Ordinance, entitled "District Use Regulations, " states that the "District Use Table establishes in each district those uses permitted and those uses permitted by special-use permit." It further provides that "[a]ll uses not so permitted in a district are prohibited therein." Id. The district use table itemizes the Town's districts as residential, neighborhood business, commercial, and manufacturing. No reference to a mixed-use village district can be found anywhere in the Ordinance.

Within the district use table, all residential uses are prohibited in manufacturing zones with the exception of hotels and motels, which require a special use permit. Also prohibited in manufacturing zones are private schools; all indoor and outdoor government public recreation uses; outdoor water-based private recreation; and, apart from stadia and amusement theme parks, all outdoor private land recreation. General hospitals require a special use permit in a manufacturing zone but, otherwise, all hospitals, sanitaria, convalescent and rest homes are prohibited as well.

Conversely, many uses that are permitted by way of right or by a special use permit in manufacturing zones are expressly prohibited in all other use zones. These include: mining; special trade contractors; junkyards; textile mill products; apparel and other finished products from fabric; furniture and furnishing manufacturing; and paperboard and paperboard manufacturing. With respect to commercial activities, all retail trade is permitted in manufacturing zones only by way of a special use permit, and the only personal, business or professional service not requiring a special use permit is a travel agency or bureau.

As noted above, the mixed-use village concept contemplates "commercial, office, retail and mixed-use residential structures"; however, it is clear from the Ordinance that, apart from hotels and motels, all residential development is absolutely prohibited in manufacturing zones. Indoor and outdoor government recreation facilities are also prohibited absolutely, even though such facilities are permissible by right in all other districts. Conversely, many uses that the Ordinance expressly prohibits in all of the other zones are permissible by right in manufacturing zones, such as mining and junkyards.

It is difficult, if not impossible, to conceive of any way that these inconsistencies could be reconciled such that the Comprehensive Plan and the Ordinance would "work in concert with one another[, ]" as intended by the Legislature. West, 18 A.3d at 535-36. The Planning Board found "[t]he proposed truck stop is utterly inconsistent with the mixed use village concept." (Tr. III at 42). However, every conceivable residential proposal on the Property, with the exception of a hotel or a motel, would be inconsistent with the Ordinance's requirements for manufacturing use districts. Furthermore, although the Planning Board stressed that the mixed-use village classification envisions development that is "small scale or village-like[, ]" nothing in the Ordinance would preclude the Gingerella family from developing the Property for use as a junkyard, a textile mill, a sawmill, or a stadium—to name a few of the uses that are permissible by right and would not require approval. In light of the marked inconsistencies between the manufacturing uses permitted in the Ordinance and the mixed-use village concept contained in the Comprehensive Plan, the Court concludes that the Platting Board committed clear error when it upheld the Planning Board's erroneous conclusion that the mixed-use village classification could be harmonized with the Ordinance's manufacturing use districts. See e.g., Gillis v. City of Springfield, 611 P.2d 355, 359 (Or. Ct. App. 1980) (declaring a rezoning that permits only limited institutional residential uses incompatible with comprehensive plan that designates the zone as medium density residential and that "the type of use called for in the comprehensive plan may [not] be ignored").

Having determined that the two provisions are irreconcilably inconsistent, the Court next must determine whether the Platting Board erred in upholding the Planning Board's determination that the Comprehensive Plan trumps any inconsistency that may exist between the Comprehensive Plan and the Ordinance. The Appellants contend that the General Assembly's recent amendment to § 45-22.2-13 of the CPLURA controls the outcome of this question.[5] They specifically maintain that the amendment operates retrospectively, such that the Ordinance's designation of the Property as a manufacturing zone trumps application of the Comprehensive Plan's mixed-use village designation. In contrast, the Platting Board contends that the Planning Board properly concluded that, in the event of an inconsistency, the mixed-use village classification takes precedent over a manufacturing use district.

When the Planning Board considered the instant Master Plan Application, the relevant section provided: "for communities with municipally adopted comprehensive plans which have not received state approval pursuant to this chapter, these municipalities shall conform their land use decisions to the locally adopted comprehensive plan until the time state approval is granted." Sec 45-22.2-13(d). Since the filing of this appeal, however, the General Assembly amended this provision, which now reads:

"Each municipality shall amend its zoning ordinance and map to conform to the comprehensive plan in accordance with the implementation program as required by subdivision 45-22.2-6(b)(11) and paragraph 45-22.2-6(b)(12)(iv). The zoning ordinance and map in effect at the time of plan adoption shall remain in force until amended. In instances where the zoning ordinance is in conflict with an adopted comprehensive plan, the zoning ordinance in effect at the time of the comprehensive plan adoption shall direct municipal land use decisions until such time as the zoning ordinance is amended to achieve consistency with the comprehensive plan and its implementation schedule. In instances of uncertainty in the internal construction or application of any section of the zoning ordinance or map, the ordinance or map shall be construed in a manner that will further the implementation of, and not be contrary to, the goals and policies and applicable content of the adopted comprehensive plan." Sec. 45-22.2-13(c).

According to Appellants, this amendment controls; thus, the Ordinance's designation of the Property as being in a manufacturing zone trumps the mixed-use village category set forth in the Comprehensive Plan.

It is axiomatic that the "'Court presumes that statutes and their amendments operate prospectively' absent 'clear, strong language or a necessary implication that the General Assembly intended to give the statute retroactive effect.'" R.I. Mobile Sportfishermen, Inc. v. Nope's Island Conservation, 59 A.3d 112, 118 (R.I. 2013) (quoting Direct Action for Rights & Equality v. Gannon, 819 A.2d 651, 658 (R.I. 2003)); see also Kaveny v. Town of Cumberland Zoning Bd. of Review, 875 A.2d 1, 4 (R.I. 2005) ("We only give statutes retroactive effect when the Legislature clearly expresses such an application.").

There is no indication that the General Assembly intended § 45-22.2-13 to apply retrospectively; indeed, the clear language of the amendment provided that the "Act shall take effect upon passage." P.L. 2011, ch. 215, § 5. Consequently, the statute must be applied prospectively, and Appellants' claim of retrospective applicability must fail.

As noted above, a comprehensive plan "establishes a binding framework or blueprint that dictates town and city promulgation of conforming zoning and planning ordinances[;]" however, it does not follow that a comprehensive plan necessarily should trump an ordinance in the event of a conflict. West, 18 A.3d at 539. This is because ...

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