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

• Decision Date: 30 January 2020
• Docket Number: C. A. WC-2017-056
• 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.; LOIS DELANEY; CAROL A. BROUGH; TONI R. SKOCIC; and MELANIE GINGERELLA v. PHILIP SCALISE; DANIEL HARRINGTON; JONATHON URE; HARRY BJORKLAND; and TIMOTHY WARD, in their capacities as members of the Town of Hopkinton Zoning Board of Review; and RITA S. ADAM; GLENN T. BRADFIELD;WOOD PAWCATUCK WATERSHED ASSOCIATION; and HOPKINTON HISTORICAL ASSOCIATION, INC.
• Court: Rhode Island Superior Court

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.; LOIS DELANEY; CAROL A. BROUGH; TONI R. SKOCIC; and MELANIE GINGERELLA v. PHILIP SCALISE; DANIEL HARRINGTON; JONATHON URE; HARRY BJORKLAND; and TIMOTHY WARD, in their capacities as members of the Town of Hopkinton Zoning Board of Review; and RITA S. ADAM; GLENN T. BRADFIELD;WOOD PAWCATUCK WATERSHED ASSOCIATION; and HOPKINTON HISTORICAL ASSOCIATION, INC.

C. A. No. WC-2017-056

Superior Court of Rhode Island, Washington

January 30, 2020

For Plaintiff: Kelly M. Fracassa, Esq., Eric S. Brainsky, Esq.

For Defendant: Todd J. Romano, Esq.

DECISION ^[1]

THUNBERG, J.

Before this Court is an appeal from a decision of the Zoning Board of Review (Board) for the Town of Hopkinton (Town), filed by Love's Travel Stops and Country Stores, Inc. (Love's or Applicant), ^[2] and the owners of the property at issue (the Gingerella Family) (collectively Appellants).^[3] The Appellants appeal from the denial of their applications for a special-use permit and for an aquifer protection permit, and also from the Board's decision to rescind five zoning certificates previously issued by the Town's building official. The Appellants contend that the Board misconstrued provisions contained in the Town's zoning ordinance (ordinance) and comprehensive plan, and that it also failed to consider competent evidence in the record. They further contend that the Board lacked authority to consider an appeal of the zoning certificates. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I Facts and Travel

This case previously came before the Court on Love's appeal from the denial of master plan approval. See Love's Travel Stops and Country Stores, Inc. v DiOrio, No. WC 09-844, 2014 WL 1246540 (R.I. Super. Mar. 21, 2014). The Court ultimately reversed and remanded the matter to the Town of Hopkinton Zoning Board of Review, sitting as the Platting Board of Appeals (Platting Board). The following facts from that decision aptly describe the property and proposal:

"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) . . . Located in a manufacturing zone since the inception of the Town's [z]oning [o]rdinance (the [o]rdinance) in 1971, the Property is bounded by Route 3, Interstate Route 95, a state-owned Park-and-Ride, and another unimproved parcel . . . It is undisputed that the property across the street was zoned as residential until 2006, at which point it was rezoned as manufacturing.

"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, [a Subway] restaurant a gift shop, restrooms, and a fuel-filling station . . . The fuel-filling station would accommodate automobile traffic in the front of the building and diesel trucks in the back of the building . . . 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 . . . The truck stalls would provide temporary overnight parking for truckers, most of whom would leave their truck engines running for heating or cooling purposes.

"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)." Id. at *1-*2 (internal citations omitted).

The proposed project would require installation of five underground storage tanks (UST), four of which would be capable of storing 20, 000 gallons of fuel, and the fifth would have a 12, 000-gallon capacity. (Department of Environmental Management (DEM) Approval Letter, App. at 1987.) The Appellants applied for approval from the DEM to install said tanks, and on March 3, 2009, the DEM granted said approval, subject to various conditions. Id.

On December 4, 2008, Appellants applied for five zoning certificates for the property. (Zoning Certificates, App. at 202-206.) Said applications sought certificates for a restaurant, a gasoline service station, a convenience store, and certificates for overnight parking for longdistance trucking (Use Category 422, local and long-distance trucking) and shower facilities. (Zoning Certificates, App. at 202-06.)

On January 12, 2009, the Town's zoning official denied the application for shower facilities as being a use that is not permitted under the ordinance; however, he did issue zoning certificates for a restaurant, a gasoline service station, a convenience store, and overnight parking. Id. The zoning certificates for the restaurant, the gasoline service station, and the convenience store each required Appellants to obtain a special-use permit. Id. at 202, 204, and 206. The zoning certificates for the gasoline service station and overnight parking for local and long distance trucking, with storage, additionally required Appellants to obtain an aquifer protection permit. Id. at 203 and 206.

On July 22, 2009, multiple parties appealed to the Board regarding the issuance of the zoning certificates.^[4] (Appeal of Zoning Certificates, App. at 197.) They asserted that they were not given notice and an opportunity to oppose the zoning certificates. Id. at 198-99. They further asserted that the zoning official erroneously issued the zoning certificates because the proposed uses for the property, taken together, combine into a truck stop, which is not a permitted use under the ordinance. Id. at 199. In addition, they maintain that Use Category 422, local and long-distance trucking, is restricted to "businesses actually engaged in the provision of commercial trucking and storage" and that such use does not permit overnight parking for the proposed truck stop use. Id.

Meanwhile, on January 15, 2015, the Board commenced a protracted public hearing^[5] on the applications for the aforementioned special-use permit and aquifer protection permit. The Board consolidated the applications with the previously filed appeal of the zoning certificates.

The following witnesses testified at the hearing: civil and environmental engineer, Eric Prive; environmental engineer, Donna Pallister; professional engineer, Paul Bannon; owner of SAGE Environmental, Rick Mandile; Love's Vice President of Real Estate and Development, Rick Schuffield; acoustical consulting scientist, David Coate; environmental professional, Marc Wallace; registered landscape architect, John Carter; professional interstate truck driver, Will Gosbee; real estate appraiser, Raymond Leuder; professional planner, Ashley Sweet; Hopkinton Historical Society, Inc. representative, Richard Prescott; real estate appraiser, Peter Scotti; and former Hopkinton zoning officer, Brad Ward. At the conclusion of the testimony on January 19, 2017, the Board closed the hearing, deliberated over the record evidence, and issued an oral decision via multiple motions.^[6]

In its decision, the Board denied the application for a special-use permit, as well as the application for an aquifer protection permit. In denying the special-use permit, the Board found that a travel stop is not a permitted use under the ordinance and thus is prohibited.^[7] It further found that the special-use permit would not be compatible with the neighboring uses and would adversely affect the surrounding neighbors' use and enjoyment of their properties.

With respect to the aquifer protection permit, the Board found that it would be environmentally detrimental and would adversely affect property values because the proposed USTs would be located in a prohibited area. The Board granted the appeal of the zoning certificates by rescinding them and declaring them null and void.

The Board later memorialized all of its motions in a written decision that it issued on January 30, 2017 and recorded in the land evidence records on January 31, 2017. The Appellants timely appealed.

After carefully reviewing the voluminous record in this case, the Court now renders its Decision. Additional facts will be provided in the analysis portion below.

II Standard of Review

This Court's review of a zoning board decision is governed by § 45-24-69(d), which provides:

"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review 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, or ordinance provisions;

"(2) In excess of the authority granted to the zoning board of review 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

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