R. CHAMPLIN CRANE & EXCAVATING, INC., Plaintiff,
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.
County Superior Court
Plaintiff: Kelly M. Fracassa, Esq.
Defendant: John A. Caletri, Esq.
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
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.
1974, Roger Shawn (Shawn) sold the Property to Frank
Champlin, Jr., (Frank) 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.
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.
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." 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.
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. 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.
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
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.
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
"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.
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.
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.
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.
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
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