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R. Champlin Crane & Excavating, Inc. v. Bongiolatti

Superior Court of Rhode Island

February 27, 2017

R. CHAMPLIN CRANE & EXCAVATING, INC., Plaintiff,
v.
LINDA BONGIOLATTI, WALTER PAWELKIEWICZ, DAVID GIORNO, MARK DOESCHER, AND THOMAS J. CAPALBO, III, in their capacities as members of the Town of Westerly Zoning Board of Review, Defendants.

         Washington County Superior Court

          For Plaintiff: Kelly M. Fracassa, Esq.

          For Defendant: John A. Caletri, Esq.

          DECISION

          MATOS, J.

         Before the Court is an appeal from a decision of the Town of Westerly Zoning Board of Review (Zoning Board) upholding a determination by the Westerly Zoning Official (Zoning Official) that Appellant R. Champlin Crane & Excavating, Inc. (Appellant) was using its property located at 29-33 Old Carriage Road, Westerly, Rhode Island (Property) in violation of the "Westerly Rhode Island Zoning Ordinance of 1998" (Zoning Ordinance) by filling, dumping, storing, and/or processing sand, loam, gravel, and other construction and earthen materials. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

         I

         Facts and Travel

         The Property sits on Assessor's Plat/Lot 52-3A, consisting of 6.12 acres of vacant land along an unimproved town road. Zoning Board Decision (Decision) 1; Zoning Board Hr'g (Hr'g) Ex. F. It is situated in a rural residential RR-60 zoning district, which prohibits commercial soil, sand, and gravel removal, as well as open lot storage of sand and gravel. See Zoning Ordinance §§ 260-17, 260-18; id. at ch. 260 Attachment 11:1, 11:2 (Zoning Use Table). The Property also is located within an Aquifer Protection Overlay District, thereby requiring an Aquifer Protection Permit for certain uses. See Zoning Ordinance §§ 260-15, 260-52; see also id. at § 260-17(G)(4); Zoning Use Table.

         In 1974, Roger Shawn (Shawn) sold the Property to Frank Champlin, Jr., (Frank)[1] and his wife. Zoning Board Hr'g Tr. 52:22-53:2, 70:14-17, Dec. 3, 2014 (Tr.). When the parties later discovered that the deed had not been properly recorded, Shawn redeeded the Property to Frank and his wife in December 2005. Id. at 70:18-71:9, 73:1-13; see Hr'g Ex. A. Despite this snag, it is uncontroverted that Frank possessed, used, and, for all intents and purposes, rightfully owned the Property from the original 1974 transfer onward. Tr. 71:18-23, 76:19-77:17. Thereafter, in January 2006, Frank and his wife conveyed the Property to Appellant, a company owned by Frank's nephew, Richard Champlin, Jr. (Richard). Id. at 28:22-29:12, 52:11-16; see Hr'g Ex. 2.

         Appellant was incorporated in Rhode Island in 1999 and has its headquarters at 20 Dunns Corner Road, Westerly, Rhode Island. Tr. 27:20-28:4, 31:17-21; see Hr'g Ex. 1. Its stated purpose is to "engage in providing crane service, construction and general trucking." Hr'g Exs. 1, D, E. Appellant uses the Property as a "borrow site": that is, Appellant takes materials from different job sites and stores them at the Property until Appellant brings the materials elsewhere for another project. See Tr. 32:21-34:4, 64:25-65:25. Richard said that he uses the Property ten to twelve times per month to truck in materials from other locations. Id. at 34:11-14. These materials include "basic fill, clean gravel, yellow dirt, [and] topsoil[, ]" as well as remnants from demolition work, such as cement foundation and boulders. Id. at 33:22-34:4, 42:8-11.

         The Property originated as a gravel bank for the purpose of excavation. See Tr. 16:14-17:7, 42:1-6, 56:9-10, 64:11-15. According to Richard, however, there is not much gravel left on the Property to excavate. Id. at 34:15-23. Town of Westerly (Town) records, including files within the Tax Assessor's office dating back to the 1980s, indicate that the Property consists of a "[g]ravel bank, dug out." Decision 1 (emphasis added); see Tr. 16:23-17:7; Decision 3. Since approval from the Westerly Planning Board in 2009, the Property has also housed a "100' monopole communication tower with nine (9) antennas."[2] Decision 2; see also Hr'g Ex. F. In a memorandum to the Westerly Town Council regarding its authorization of the cell tower, the Planning Board relayed that the Property "is used to mine sand and gravel" and "is the home of heavy equipment that is in use or in an abandoned state." Hr'g Ex. F.

         Furthermore, in 2010, Appellant granted the Town an easement on the northeast corner of the Property so that the Town could comply with state regulations by creating the requisite buffer zone around a new well inserted nearby.[3] See Tr. 34:24-36:14; Hr'g Exs. 3, 4. In order to protect the water quality of the well, which serves as a source of public drinking water, certain uses are prohibited only within the easement on the Property. See Tr. 36:17-38:13; Hr'g Exs. 3, 5. The area of the Property outside that buffer zone radius is subject only to the restrictions normally associated with the rural residential RR-60 zoning district and the Aquifer Protection Overlay District within which the Property sits.

         In August 2014, the Zoning Official noted "there were activities taking place in the area that were of concern due to the close proximity to the nearby municipal water supply well at the end of Old Carriage Road." Decision 1; see Tr. 8:7-13. He observed:

"During Site inspections made on September 5, 2014 and September 10, 2014 dump trucks were observed entering and exiting the Site and piles of gravel, loam, urban fill material, and rubble were observed at the Site. Discarded pressure treated timbers and used/damaged drain pipes were also noted to be present amongst the fill material. A bucket loader and a piece of screening equipment were also observed to be present on the [P]roperty." Decision 1; see also Zoning Board Record (Record) (photographs taken during inspections).

         The Zoning Official was of the opinion that the Property "was clearly being used as a storage processing facility[, ]" and he "could come up with no conclusive evidence that this activity ever existed prior to [his] observing it." Tr. 8:24-25, 9:8-10.

         Thus, on September 10, 2014, the Zoning Official issued Appellant a "Notice of Apparent Zoning Violation Request for Compliance" (Notice of Violation). It set forth the following violation:

"Filling, grading, backfilling, and/or dumping in an Aquifer Protection Overlay District and the 'open lot storage of sand and gravel' without an Aquifer Protection Permit in violation of Section 260-18 (Standard Zoning District Use Tables) and Section 260-52 (Aquifer Protection Overlay District)." Notice of Violation.

         The Zoning Official mandated, "Operations must CEASE & DESIST IMMEDIATELY and an Aquifer Protection Permit must be applied for and received prior to continuing any activities on the Site." Id.

         The next day, the Zoning Official advised Richard that gravel bank extraction was allowed as a legal nonconforming use. See Tr. 14:20-15:9; Record (September 11, 2014 note from Zoning Official's file). However, Appellant was not permitted to bring any material or filling onto the Property from off-site; an Aquifer Protection Permit would be required to process and/or store the outside materials on the Property. Tr. 15:14-16; Record (September 11, 2014 note from Zoning Official's file). The Notice of Violation, therefore, stemmed from Appellant's bringing materials onto the Property for storage and/or processing, not Appellant's extracting gravel from the Property. See Tr. 15:5-16:13.

         As grounds for seeking the within appeal, Appellant claimed "a pre-existing legal nonconforming use of record and [the] Zoning Official's letter dated September 10, 2014 is in error." Application for Appeal to the Zoning Board of Review (Application for Appeal). In the Application for Appeal, Appellant described its present use of the Property as a "[p]re-existing legal nonconforming use as an excavation and gravel operation, including but not limited to the processing of outside organic materials." Id. This includes using the Property as a "loading and unloading site." Id. Appellant brought its appeal under Zoning Ordinance § 260-32: "Any structure or the use of any structure or land which structure or use was lawful at the date of enactment of this Zoning Ordinance and which is nonconforming under the provisions of this Zoning Ordinance, or which will be made nonconforming by any subsequent amendment, may be continued . . . ." The Zoning Ordinance was adopted in 1998; the Aquifer Protection Overlay District section was amended in 1999. See Zoning Ordinance §§ 260-1, 260-3, 260-52; see also Tr. 24:16-26:10.

         The Zoning Board held a public hearing on Appellant's appeal on December 3, 2014. The hearing elicited testimony from several interested individuals, and the Court will summarize that which is pertinent to this appeal. First, the Zoning Official testified to his findings and determination-namely, that Appellant was in violation of the Zoning Ordinance. See Tr. 8:7-10:18. The Zoning Official also read into the record his Zoning Narrative dated October 16, 2014, which essentially laid out his observations while inspecting the Property and his research into Appellant's use of the Property historically. See Tr. 11:3-13:17; Zoning Narrative.

         Richard first spoke on behalf of Appellant. Richard is the President of Appellant, and his father, Richard Champlin, Sr. (Richard Sr.), is the Vice President. See Tr. 27:20-22, 28:10-12; see also Hr'g Ex. 1. Richard explained that when Appellant purchased the Property, it consisted of "[r]ocks, gravel, general fill, [and] some depressions from previous digging." Tr. 29:20-21. Richard testified that he was familiar with the Property prior to purchasing it from his uncle, Frank, in January 2006. Id. at 29:22-24. During the time Frank owned the Property, Richard continued, Richard and Richard Sr. used it for their business, doing "basically the same thing that ...


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