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

• Decision Date: 21 March 2014
• Docket Number: C.A. No. WC 09-844
• Citation: Love's Travel Stops & Country Stores, Inc. v. DiOrio, C.A. No. WC 09-844 (R.I. Super. Mar 21, 2014)
• Court: Rhode Island Superior Court
• Parties: LOVE'S TRAVEL STOPS AND COUNTRY STORES, INC., MADELINE A. GINGERELLA, in her capacity as Trustee of the George A. Gingerella Living Trust, DAVID A. GINGERELLA, ANGELO GINGERELLA, ROSEMARIE GINGERELLA, ANGELO COMFORTI, LUCILLE SPOSATO, DONNA LaPLANTE, WILLIAM GINGERELLA, LOUIS W. GINGERELLA, JR., DOUGLAS J. GINGERELLA, LOIS DELANEY, CAROL A. BROUGH, TONI R. SKOCIC, and MELANIE GINGERELLA v. 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

LOVE'S TRAVEL STOPS AND COUNTRY STORES, INC.,MADELINE A. GINGERELLA,in her capacity as Trustee of the George A. Gingerella Living Trust,DAVID A. GINGERELLA, ANGELO GINGERELLA,ROSEMARIE GINGERELLA, ANGELO COMFORTI,LUCILLE SPOSATO, DONNA LaPLANTE, WILLIAM GINGERELLA,LOUIS W. GINGERELLA, JR., DOUGLAS J. GINGERELLA,LOIS DELANEY, CAROL A. BROUGH, TONI R. SKOCIC, and MELANIE GINGERELLA v. 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

C.A. No. WC 09-844

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS WASHINGTON, SC. SUPERIOR COURT

FILED: March 21, 2014

DECISION

THUNBERG, J., 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.

IFacts 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 providetemporary 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.

IIStandard 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 isany 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)).

IIIAnalysis

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.

AConforming 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, theComprehensive 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...