STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

WASHINGTON, SC. SUPERIOR COURT

(FILED: January 30, 2020)

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. : C.A. No. WC-2017-056

:

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. :

DECISION1

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.

1 The voluminous record in this matter has been submitted by the Appellants as a three-volume

appendix. As the parties cite to this appendix in their briefs, the Court also will cite to said

appendix for ease of reference.

2

(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

2 Love’s is an Oklahoma-based, family-owned business that operates travel stops at more than 500

locations in over forty-one states nationwide. See The Love’s Family of Companies,

http://www.loves.com/AboutUs.aspx (last visited Jan. 23, 2020). According to its website, Love’s

Stores:

“provid[e] professional truck drivers and motorists with 24-hour

access to clean and safe places to purchase gasoline, diesel fuel,

Compressed Natural Gas (CNG), travel items, electronics, snacks,

restaurant offerings, and more.” Id. 3 The property at issue originally was acquired by the late Frank Carl Gingerella and his deceased

brothers and sister. (Email from Catherine Studley, daughter of Frank Carl Gingerella, to building

official Brad Ward, Sept. 23, 2015, App. at 1984). Ms. Studley stated that the families of these

deceased “siblings have grown exponentially” and are “far too many to name and describe . . . .”

Id.

3

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

4

gasoline service station, a convenience store, and certificates for overnight parking for long-

distance 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.

4 The appeal of the zoning certificates was filed by Steven A. Wilmes, Karen M. Wilmes, Glenn

T. Bradfield, Rita S. Adam, the Wood Pawcatuck Watershed Association, and the Hopkinton

Historical Association, Inc.

5

Meanwhile, on January 15, 2015, the Board commenced a protracted public hearing5 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

5 The hearings took place on January 15, 2015; February 26, 2015; March 26, 2015; April 23,

2015; May 7, 2015; June 18, 2015; July 23, 2015; September 24, 2015; October 22, 2015;

December 9, 2015; January 28, 2016; March 31, 2016; May 5, 2016; June 2, 2016; July 7, 2016;

September 22, 2016; October 20, 2016; November 17, 2016; and January 19, 2017. 6 Prior to the commencement of the final hearing day, the Board recognized the recusal of a fellow

Board member. This Board member had been present and vocally active at all of the previous

hearing days. The reason for his recusal is not evident from the record. 7 The parties have variously referred to the proposal as one for a travel stop, a travel center, a travel

plaza, and/or a truck stop. However, the precise characterization of the proposal does not affect

the outcome of this Decision.

6

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;

7

“(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.”

Section 45-24-69(d).

Our Supreme Court requires this Court to “review[] the decisions of a . . . board of review

under the ‘traditional judicial review’ standard applicable to administrative agency actions.”

Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998) (quoting E. Grossman & Sons, Inc. v. Rocha, 118

R.I. 276, 285, 373 A.2d 496, 501 (1977)). Accordingly, the Court ‘“lacks [the] 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.”’ Id. at 665-66 (quoting Lett v. Caromile, 510 A.2d 958,

960 (R.I. 1986)). In performing this review, the Court “may ‘not substitute its judgment for that

of the zoning board of review as to the weight of the evidence on questions of fact.’” Curran v.

Church Community Housing Corp., 672 A.2d 453, 454 (R.I. 1996) (quoting § 45-24-69(d)).

However, the applicant always bears the burden to demonstrate why the requested relief should be

granted. See DiIorio v. Zoning Board of Review of City of East Providence, 105 R.I. 357, 362,

252 A.2d 350, 353 (1969) (requiring “an applicant seeking relief before a zoning board of review

to prove the existence of the conditions precedent to a grant of relief”).

In reviewing a zoning decision, the Court ‘“must examine the entire record to determine

whether “substantial” evidence exists to support the board’s findings.’” Salve Regina College v.

Zoning Board of Review of City of Newport, 594 A.2d 878, 880 (R.I. 1991) (quoting DeStefano v.

Zoning Board of Review of Warwick, 122 R.I. 241, 245, 405 A.2d 1167, 1170 (1979)).

‘“Substantial evidence’” is defined as ‘“such relevant evidence that a reasonable mind might

accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less

8

than a preponderance.’” Lischio v. Zoning Board of Review of North Kingstown, 818 A.2d 685,

690 n.5 (R.I. 2003) (quoting Caswell v. George Sherman Sand & Gravel Co., Inc., 424 A.2d 646,

647 (R.I. 1981)). If the Court ‘“can conscientiously find that the board’s decision was supported

by substantial evidence in the whole record,’” it must uphold that decision. Mill Realty Assoc. v.

Crowe, 841 A.2d 668, 672 (R.I. 2004) (quoting Apostolou v. Genovesi, 120 R.I. 501, 509, 388

A.2d 821, 825 (1978)). However, in cases that involve questions of law, this Court conducts a de

novo review. Tanner v. Town Council of Town of East Greenwich, 880 A.2d 784, 791 (R.I. 2005).

III

Analysis

The Appellants contend that the Board misconstrued the ordinance and the 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. Alternatively, the

Board maintains that it properly found that a travel stop is not a permitted use under the ordinance.

It additionally maintains that denial of the aquifer permit was proper and that because the zoning

certificates conferred a vested right on Love’s, the issuance of said certificates was appealable.

A

The Special -Use Permit

Love’s filed a single application for a special-use permit to construct a “Travel Stop.” Said

application listed three uses: namely, Use Category 554 (gasoline service stations); Use Category

581 (eating places); and Use Category 5995 (gift, novelty, and souvenir shop). Appellants

maintain that they satisfied the standard for the issuance of that permit, and that the Board erred in

failing to grant the permit.

Section 10 of the ordinance, entitled “Special-use permits,” provides, in pertinent part:

9

“(D) In granting a special-use permit, the zoning board shall be

satisfied by legally competent evidence that the proposed uses

and/or structure:

“(1) Will be compatible with the neighboring uses and will not

adversely affect the surrounding neighbors’ use and enjoyment

of their property;

“(2) Will be environmentally compatible with neighboring

properties and the protection of property values;

“(3) Will be compatible with the orderly growth and

development of the town, and will not be environmentally

detrimental therewith;

“(4) That all best practices and procedures to minimize the

possibility of any adverse effects on neighboring property, the

town, and the environment have been considered and will be

employed, including but not limited to considerations of soil

erosion, water supply protection, septic disposal, wetland

protection, traffic limitation, safety and circulation; and

“(5) That the purpose of this ordinance, and as set forth in the

comprehensive plan, shall be served by said special-use permit.”

Ch. 134, § 10 of the ordinance.

The burden of proof in an application for a special-use permit is on the applicant; therefore,

if an applicant fails to present adequate competent evidence to prove that the applicable standard

for issuing a special-use permit has been met, the zoning board of review must deny the

application. See Toohey v. Kilday, 415 A.2d 732, 735 (R.I. 1980); Dean v. Zoning Board of Review

of City of Warwick, 120 R.I. 825, 831, 390 A.2d 382, 386 (1978); R-N-R Associates v. Zoning

Board of Review of City of Providence, 100 R.I. 7, 12, 210 A.2d 653, 656 (1965). Furthermore,

“As a condition precedent to the grant of a special exception, an

applicant must establish that the relief sought is reasonably

necessary for the convenience and welfare of the public . . . To

satisfy the prescribed standard, the applicant need show only that

‘neither the proposed use nor its location on the site would have a

detrimental effect upon public health, safety, welfare and morals.’”

Toohey, 415 A.2d at 735–36 (quoting Hester v. Timothy, 108 R.I.

376, 385-86, 275 A.2d 637, 642 (1971)).

10

Similar to the Supreme Court, this Court “interpret[s] an ordinance in the same manner in

which [it] interpret[s] a statute.” Prew v. Employee Retirement System of City of Providence, 139

A.3d 556, 561 (R.I. 2016) (internal citations omitted). Thus,

“When construing or interpreting an ordinance, this Court applies

the same rules of construction that we apply when interpreting [a]

statute[ ]. [It] give[s] clear and unambiguous language in an

ordinance its plain and ordinary meaning. However, when it is

determined that an ordinance is unclear and ambiguous, this Court

must look to the legislative intent behind the enactment. Most

notably, under no circumstances will this Court construe a statute to

reach an absurd result.” Sauro v. Lombardi, 178 A.3d 297, 304 (R.I.

2018) (internal citations and quotations omitted).

Chapter 134, § 5 of the ordinance, entitled “District use regulations,” provides:

“The following District Use Table establishes in each district those

uses permitted and those uses permitted by special-use permit or by

aquifer protection permit. All uses not so permitted in a district are

prohibited therein. Except for those uses and activities specifically

identified in subsection (a) of this ordinance, which follows below,

any accessory use customarily incident to a use permitted in a

district and located on the same lot shall be permitted; any accessory

use customarily incident to a use permitted in a district by special

use permit or aquifer protection permit and located on the same lot

shall be permitted upon the grant of the special-use permit or aquifer

protection permit unless limited by special condition attached to the

grant of the special-use permit or aquifer protection permit.” Ch.

134, § 5 of the ordinance (emphasis added).

It is clear, from the foregoing, that uses not expressly enumerated in the ordinance are deemed

prohibited.

The term “use” is defined as, “[t]he purpose or activity for which land or buildings are

designed, arranged, or intended, or for which land or buildings are occupied or maintained.” Id.

at § 2. An accessory use/structure is defined as, “[a] use of land or of a building, or portion thereof,

customarily incidental and subordinate to the principal use of the land or building or the structure

in which the use takes place. The incidental sale of products raised on a farm shall be considered

11

accessory thereto.” Id. at § 2. Thus, an accessory use is a use that “is something less than a primary

permitted use [and] is demonstrated by a characterization of accessory uses as ‘dependent on’ or

‘pertaining to.’” Mola v. Reiley, 241 A.2d 861, 864 (N.J. 1968). Accordingly, “[a] primary use

must be and must continue to be dominant to an accessory use. Id.

Interestingly, “[t]he name by which a business or use is designated or called is not of

controlling importance in determining whether the use comes within the terms of the ordinance,

and the question is determined by the activities or character of the business or service.” 101A

C.J.S. Zoning and Land Planning § 123. Furthermore, “[w]hether a proposed use falls within a

particular use category in a zoning ordinance is a question of law.” Id.

According to the Town’s zoning map, the property at issue in this case is located in a

manufacturing zone. The ordinance requires an applicant to obtain a special-use permit for a

gasoline service station, an eating place, and a gift, novelty, or souvenir shop. Here, Love’s filed

a single application for a travel stop that combined multiple primary uses into a single primary

use; namely, a travel stop, so-called.

Such a use is not listed in the district use table, and thus, it is clearly and unambiguously

prohibited. See Ch. 134, § 5 of the ordinance (“All uses not so permitted in a district are prohibited

therein”); see also Del Vecchio v. Lalla, 523 N.Y.S.2d 654, 655 (1988) (“Construing the Zoning

Ordinance to permit multiple primary uses through resort to the special permit provisions of the

ordinance would effectively nullify the provision pertaining to accessory uses”); Enterprise

Citizens Action Committee v. Clark County Board of Commissioners, 918 P.2d 305, 312 (Nev.

1996) (holding that three requests for minor changes, when taken together, “amounted to a non-

conforming use of the property because their effect would have been to allow manufacturing in a

district which expressly forbids manufacturing”).

12

Although a travel stop is not an expressly prohibited use in the ordinance, its absence from

the district use table, as a permitted use, necessarily means that it is a prohibited use. See Ch. 134,

§ 5, of the Ordinance; Exxon Corp. v. Board of Standards and Appeals of the City of New York,

515 N.Y.S.2d 768, 771 (N.Y. App. 1987) (“In construing a zoning regulation, the issue is not

whether the use is permissible, but, rather, whether it is prohibited”) (internal quotation omitted);

see also City of Warwick v. Campbell, 82 R.I. 300, 305, 107 A.2d 334, 337 (1954) (“Zoning

ordinances may be permissive in form, permitting specified uses and buildings and prohibiting all

others within a district, or they may be prohibitive in form, prohibiting specified uses and buildings

and permitting all others.”). Consequently, the Court concludes that the Board did not err in

finding that the proposed use was not a permitted use under the ordinance.

The Appellants nevertheless contend that several uses may exist on a single property in a

manufacturing zone that, when combined, constitute a permitted use not listed in the district use

table. As support, they point to the existence of an industrial park across the street, which contains

multiple uses, although it is not listed as a permitted use in the ordinance. They maintain that the

Board’s interpretation of its ordinance to allow the industrial park evidences the Board’s

interpretation of the Town Council’s intent to allow multiple permitted uses on one piece of

property to be combined into a separate, single use. Essentially, Appellants are contending that

the Board may not selectively enforce the provisions of the ordinance.

In the instant matter, the industrial park across the street is very dissimilar to a travel stop.

As such, the two properties are not similarly situated. Furthermore, even if the properties were

similarly situated, that fact alone would be insufficient to show that the Board arbitrarily and

capriciously denied the special-use permit.

It is well-settled that:

13

“[t]he mere fact that consents were granted to owners of premises

somewhat similarly situated does not in itself show that consent was

arbitrarily refused to this applicant. The question is not whether

someone else has been favored. The question is whether the

petitioner has been illegally oppressed. Exercise of discretion in

favor of one confers no right upon another to demand the same

decision. Unlimited discretion vested in an administrative board by

ordinance is not narrowed through its exercise. Calculated failure to

lay down general standards in the ordinance should not be nullified

by interpretation that each case passed upon creates a standard that

must be generally followed thereafter. The council may refuse to

duplicate previous error; it may change its views as to what is for

the best interests of the city; it may give weight to slight differences

which are not easily discernible.” Matter of Larkin Co. v. Schwab,

242 N.Y. 330, 336–37 (1926).

See also E.C. Yokley, Zoning Law and Practice § 20-15 (4th ed. 2002) (“Since each case must be

decided on its own facts, it follows that merely because the Zoning Board takes certain action in

one situation, it is not bound in another . . . Generally, therefore, it is not a relevant factor that a

variance [or a special-use permit] has been granted to neighbors or similarly situated properties.”).

As the district use table does not list a travel stop, a travel plaza, a travel center, or a truck

stop as a permitted use, the Court concludes that the Board’s denial of the special-use permit was

not in violation of constitutional provisions. Furthermore, as the application sought a prohibited

use, the Court will not address the merits of the evidence presented by Love’s to support its

application for a special-use permit—a mode of relief which constitutes a conditionally permitted

use—as the Board lacked statutory authority to grant the special-use permit.

B

The Aquifer Protection Permit

The Appellants contend that the Board erred in denying the application for an aquifer

protection permit by applying the wrong standard when it denied the permit. According to the

“Groundwater and Wellhead Protection Areas Map,” the property was not located in a non-

14

transient, non-community wellhead protection area. See App. at 2332. The Appellants maintain

that the Board erred in ignoring the map when it found that the proposed USTs would be

environmentally detrimental.

The Town’s aquifer protection provisions of the ordinance prohibit USTs within primary

protection zones, and it is undisputed that the property is located entirely within such a zone. See

System Overview from Rhode Island Department of Health, dated March 15, 2006 (App. at 49);

Transient Public Water System Worksheet, dated March 19, 2006 (App. at 50-52); DiPrete

Engineering Best Management Practice Work Plan, dated April 24, 2009 (App. at 6 and 38) (listing

the Hopkinton Golf Pavilion (Pavilion) as having a non-community public well with a 2934-foot

radius). However, Appellants contend that because the Town failed to depict said primary

protection zone on the Town’s “Groundwater and Wellhead Protection Areas Map,” as required

by the ordinance, the prohibition does not apply to the property. See App. at 2332. They further

maintain that the Board misapplied the ordinance and exceeded its authority when it ignored the

governing map—which depicted the property within a secondary protection zone—and instead

found that USTs are environmentally detrimental in primary protection zones, per se, regardless

of what is depicted on the governing map.

An aquifer protection permit is defined as “[a] permit allowing a use designated by the

letter ‘A’ in the primary or in the secondary groundwater and wellhead protection zone district in

the district use table of this ordinance.” Ch. 134, § 2 of the ordinance. As local and long-distance

trucking, with storage (Use Category 422) and gasoline service stations (Use Category 554) are

designated by the letter “A,” Love’s had to file an application for an aquifer protection permit.

A wellhead protection area is defined as

“The critical area surrounding a community water system well or

non-transient non-community water system well through which

15

water will move toward and reach such wells, as depicted on that

certain map titled ‘The Groundwater and Wellhead Protection Map,

Hopkinton, RI,’ dated March 22, 2004 or the most recent revision

adopted by the town council, which map is on file in the records of

the Town Clerk of the Town of Hopkinton.” Id. Ch. 134, § 2 of the

ordinance.

A community water system is defined as “[a] public water system which serves at least fifteen (15)

service connections used by year-round residents or regularly serves at least twenty-five (25) year-

round residents.” Id. A non-transient non-community water system is a “non-community water

system that regularly services at least twenty-five (25) of the same persons over six (6) months of

the year.” Id.

A primary groundwater and wellhead protection zone overlay district consists of:

“Those areas depicted on that certain map entitled ‘Groundwater

and Wellhead Protection Map, Hopkinton, RI’, dated March 22,

2004 or the most recent revision adopted by the town council, which

map is on file in the records of the town clerk of the Town of

Hopkinton.” Id.

A secondary groundwater and wellhead protection overlay district constitutes “[a]ny area within

the Town of Hopkinton that is not within the Primary Groundwater and Wellhead Protection Zone

Overlay District.” Id.

The district use portion of the ordinance specifically prohibits “[n]on-residential UST

installations in a primary protection zone district.” Ch. 134, § 5(a)(2) of the Ordinance.

Furthermore, “[n]on-residential UST installations (except those regulated by RIDEM) are

permitted in the secondary protection zone by aquifer protection permit only.” Id. Thus, according

to the aforementioned provisions, non-residential USTs are prohibited within the wellhead

protection area of a non-transient, non-community well.

At the hearing, DiPrete Engineering employee, Mr. Prive, testified that he had obtained

approval from the DEM for the installation of the proposed USTs. (Tr. 47-48, Jan. 15, 2015, App.

16

at 224.) He testified, in detail, about the proposed system, including its many safety features. Id.

at 47-54 (App. at 224-226); Tr. 48-54 and 72-73, June 18, 2015 (App. at 625-627 and 631-32).

Ms. Pallister testified that a neighboring property, the Pavilion, contained a well that had

been classified as a non-transient, non-community well with a wellhead protection radius of 2,934

feet, and that, as such, its wellhead protection area encompasses the entire property at issue. (Tr.

67-72, Dec. 9, 2015, App. at 941-946; BPMWP Section 10, App. at 38.) As previously stated,

non-residential USTs, such as the ones sought in this case, are prohibited in such wellhead

protection areas.

On December 8, 2008, Ms. Pallister requested, on Love’s behalf, that the DEM reduce

Pavilion’s wellhead protection radius to 1,750 feet. (Letter to DEM, dated December 8, 2008;

App. at 43-46). The DEM refused the request, stating that if the wellhead protection area was

reduced as requested, “a contaminant outside this [wellhead protection area] still has the potential

to migrate to the well . . . and enter the public water system.” (Letter from DEM, dated December

10, 2008; App. at 56.)

Notwithstanding, the fact that the property is located entirely within a wellhead protection

area of a non-transient, non-community well, Appellants maintain that the ordinance prohibits

USTs within such areas only when they actually are depicted on the applicable “Groundwater and

Wellhead Protection Areas Map.” Thus, although the property is located in a prohibited wellhead

protection zone, Appellants maintain that because the Pavilion’s non-transient, non-community

well was not depicted on the Town’s “Groundwater and Wellhead Protection Areas Map,” as

required by the ordinance, the property, technically, is located in a permitted, secondary wellhead

protection zone. See Ch. 134, § 2 of the Ordinance; Groundwater and Wellhead Protection Areas

17

Map, dated March 22, 2004 (App. at 2326); and Groundwater and Wellhead Protection Areas Map,

amended September 28, 2009 (App. at 2257).

The Appellants further maintain that the DEM permits for the USTs are evidence that the

proposed USTs satisfy environmental requirements. In light of these permits, they then contend

that the Board erroneously failed to consider whether there was legally competent evidence in the

record to show that the USTs “will not result in concentrations of pollutants in the groundwater

that will adversely affect the groundwater as a source of potable water . . . .” Ch. 134, § 5(b)(d) of

the Ordinance. Pursuant to the DEM’s Rules and Regulations and/or the DEM’s governing statute,

DEM did not have to consider the ordinance’s absolute prohibition on the installation of USTs

within the wellhead protection area of a non-transient, non-community well. Thus, the Board and

the DEM did not review the proposal under the same regulations or requirements.

In Rhode Island, “[t]he general rule is that statutory requirements comprising the essence

of a statute are mandatory.” Gryguc v. Bendick, 510 A.2d 937, 941 (R.I. 1986) (internal quotation

omitted). In Gryguc, the DEM granted the landowner a permit to construct a hazardous waste

treatment facility after a public hearing. Id. at 938. Property owners within 500 feet of the facility

subsequently filed for declaratory relief, asserting that because they did not receive the requisite

notice under G.L. 1956 § 23-19.1-10(b)—the Hazardous Waste Management Act—the permit was

null and void. Id. The Supreme Court recognized that the purpose of that Act was “to protect the

public and the environment ‘from the effects of the improper, inadequate, or unsound management

of hazardous wastes.’” Id. (quoting § 23-19.1-3(1)).

It then concluded “that the health and the safety of the public in conjunction with the proper

disposal of hazardous waste are the essence of the statute and that the notice provision contained

in § 23-19.1-10(b) is, at best, subsidiary to these concerns.” Id. In so concluding, the Supreme

18

Court observed that “the statutory provision in question is directed at public officers, and

substantial, though imperfect, compliance will not prejudice private rights or the public interest

where the fault of imperfect compliance rests with the public officer.” Id. (citing Town of Tiverton

v. Fraternal Order of Police, 118 R.I. 160, 164-65, 372 A.2d 1273, 1275-76 (1977)).

In “determining whether a statute is directory or mandatory, [the Court] must ascertain the

legislative intent.” Town of Tiverton, 118 R.I. at 165, 372 A.2d at 1276. In addition, ‘“statutes

imposing apparently mandatory time restrictions on public officials are often directory in nature.’”

West v. McDonald, 18 A.3d 526, 534 (R.I. 2011) (quoting New England Development, LLC v.

Berg, 913 A.2d 363, 371 (R.I. 2007)). Thus, the “time within which boards or commissions must

meet and take official action, or within which ordinance must be published to become effective,

[is] construed as directory.” West, 18 A.3d at 534 (citing 3 Norman J. Singer, Sutherland on

Statutory Construction § 57:19 (7th ed. 2008)).

There are a variety of factors that the Court considers “when analyzing whether time

provisions are directory or mandatory, including (1) the presence or absence of a sanction, (2)

whether the provision is the essence of the statute, and (3) whether the provision is aimed at public

officers.” West, 18 A.3d at 534. Furthermore, while in general, “statutory requirements

comprising the essence of a statute are mandatory . . . [p]rovisions so designed to secure order,

system and dispatch are generally held directory unless accompanied by negative words.” Id.

(Internal quotations omitted.)

In West, the City of East Providence failed to update its ordinance to conform with its

comprehensive plan within the eighteen-month statutory period set forth in chapter 22.2 of title 45

of the General Laws, entitled the “Rhode Island Comprehensive Planning and Land Use

Regulation Act” (CPLURA). Id. at 533. However, although the CPLURA used mandatory time-

19

provision language, the Supreme Court, nevertheless, held the language to be directory because

the “provisions dictating the time within which zoning ordinances must be brought into conformity

with comprehensive plans are not the essence of broader land-use planning statutes; nor is the

administrative act of zoning the kind of government action from which the citizenry requires

safeguards against abuse.” Id. at 535.

G.L. 1956 § 46-12-3(21) permits the DEM:

“To promulgate and enforce rules and regulations to govern the

location, design, construction, maintenance, and operation of

underground storage facilities used for storing petroleum products

or hazardous materials to prevent, abate, and remedy the discharge

of petroleum products and hazardous materials into the waters of the

state . . . .” Section § 46-12-3(21).

One of the stated purposes of those rules and regulations is to “[p]rotect the air, soil, and waters of

the state, including groundwater, from pollution resulting from the underground storage of

regulated substances and hazardous materials[.]” Section 250-RICR-140-25-1.1(A)(1).

Pursuant to the DEM rules and regulations, a wellhead protection area is defined as “the

three-dimensional zone, surrounding a public well or wellfield through which water will move

toward and reach such well or wellfield, as designated by the Director pursuant to R.I. Gen. Laws

Chapter 46-13.1.” Section 250-RICR-140-25-1.5(131) (emphasis added). In contrast, the

ordinance defines a wellhead protection area to include both public wells and non-transient, non-

community wells.8

8 As previously stated, the ordinance defines a wellhead protection area as:

“The critical area surrounding a community water system well or

non-transient non-community water system well through which

water will move toward and reach such wells, as depicted on that

certain map titled ‘The Groundwater and Wellhead Protection Map,

Hopkinton, RI,’ dated March 22, 2004 or the most recent revision

adopted by the town council, which map is on file in the records of

20

The Court finds that the essence of the ordinance is to protect, from pollution, the critical

areas surrounding both community (public) and non-transient, non-community (non-transient,

non-public) water systems. Furthermore, although the language relating to the “Groundwater and

Wellhead Protection Areas Map,” essentially, is in the nature of a notice provision, it contains no

mandatory language, sanctions, or time provisions, and is directed at public officers. See West, 18

A.3d at 534. Thus, the Court finds that such language does not implicate the essence of the aquifer

ordinance provisions aimed at protecting the Town’s water supplies; rather, the Court finds that

the language relating to the “Groundwater and Wellhead Protection Areas Map” is directory in

nature.

The presumed purpose of maintaining a current map in the town clerk’s records is to

provide potential applicants with notice. Here, though, the pertinent “Groundwater and Wellhead

Protection Areas Map” did not depict the Pavilion’s non-transient, non-community water system.

However, Appellants were aware of the existence of the Pavilion’s non-transient, non-community

wellhead protection area. For example, Ms. Pallister corresponded with the DEM requesting a

reduction in size of that wellhead protection area. See Tr. 67-72, Dec. 9, 2015, App. at 941-946;

BPMWP § 10, App. at 38; Letter to DEM, dated December 8, 2008, App. at 43-46; Letter from

DEM, dated December 10, 2008, App. at 56.

Accordingly, the Court finds that the lack of a current “Groundwater and Wellhead

Protection Areas Map” did not prejudice Appellants. See e.g., Heflin v. Koszela, 774 A.2d 25, 33

(R.I. 2001) (stating that “the filing of a timely claim against an estate in the probate court

constitutes a waiver of the right to actual notice since the objective of the notice requirement was

the Town Clerk of the Town of Hopkinton.” Ch. 134, § 2 of the

Ordinance (emphasis added).

21

to give creditors an opportunity to timely file their claims and to be heard”); Izzo v. Victor Realty,

132 A.3d 680, 686 (R.I. 2016) (holding no deprivation of due process where individual challenging

inadequate notice had received actual notice of a petition to foreclose a right of redemption).

In its decision, the Board found that the aquifer permit would be environmentally

detrimental and would adversely affect property values because the proposed USTs would be

located in a prohibited area. The Appellants contend that, in making these findings, the Board

misconstrued ordinance provisions.

However, the Court finds that the Board simply could have denied the aquifer permit

application based upon the fact that the ordinance prohibits USTs in non-transient, non-community

wellhead protection areas. See e.g., Rhode Island Industrial-Recreational Building Authority v.

Capco Endurance, LLC, 203 A.3d 494, 499 n.2 (R.I. 2019) (internal quotations omitted) (“[I]n

reviewing the trial justice’s legal determinations, this Court has a prerogative to affirm a

determination of a trial justice on grounds different from those enunciated in his or her decision[,]

as well as a prerogative to overturn such a determination on different grounds”); Mesolella v. City

of Providence, 439 A.2d 1370, 1373 (R.I. 1982) (“In this jurisdiction it is well established that [the

Court is] allowed to sustain a correct judgment even if it was reached through faulty reasoning or

mistake of law.”). Consequently, the Court concludes that the Board was not clearly erroneous in

denying the aquifer permit.

C

The Zoning Certificates

The Appellants contend the Board erred in finding that Appellants possessed vested rights

in the zoning certificates, thus allowing the parties who challenged said certificates to file an

22

appeal. Instead, Appellants contend that zoning certificates are not appealable and that the Board

lacked the authority to consider any such appeal.

It is well-settled that ‘“[u]nless an individual is qualified as an appellant, his [or her]

purported appeal will be considered void.’” Lombardi v. City of Providence, 69 A.3d 846, 850

(R.I. 2013) (quoting Adams v. United Developers, Inc., 121 R.I. 177, 179, 397 A.2d 503, 505

(1979)). The Zoning Enabling Act permits zoning boards to hear appeals only from aggrieved

parties. See § 45-24-63(a) (“A zoning ordinance adopted pursuant to this chapter shall provide

that an appeal from any decision of an administrative officer or agency charged in the ordinance

with the enforcement of any of its provisions may be taken to the zoning board of review by an

aggrieved party.”); Section 45-24-64 (“An appeal to the zoning board of review from a decision

of any other zoning enforcement agency or officer may be taken by an aggrieved party.”).

For purposes of a zoning appeal, an aggrieved party consists of “(i) [a]ny person, or

persons, or entity, or entities, who or that can demonstrate that his, her, or its property will be

injured by a decision of any officer or agency responsible for administering the zoning ordinance

of a city or town; or (ii) [a]nyone requiring notice pursuant to this chapter.” Section 45-24-31(4).

Thus, the issue is whether a party may be aggrieved by the issuance of a zoning certificate.

A zoning certificate is defined as “[a] document signed by the zoning-enforcement officer,

as required in the zoning ordinance, that acknowledges that a use, structure, building, or lot either

complies with, or is legally nonconforming to, the provisions of the municipal zoning ordinance

or is an authorized variance or modification therefrom.” Section 45-24-31(70). Zoning certificates

are issued pursuant to § 45-24-54, which provides, in pertinent part:

“In order to provide guidance or clarification, the zoning

enforcement officer or agency shall, upon written request, issue a

zoning certificate or provide information to the requesting party as

to the determination by the official or agency within fifteen (15)

23

days of the written request. In the event that no written response is

provided within that time, the requesting party has the right to appeal

to the zoning board of review for the determination.” Section 45-

24-54 (emphasis added).

It is clear from the foregoing statutory language that zoning certificates are advisory in

nature, i.e., designed to provide guidance or clarification. They do not constitute construction

permits; rather, they provide advice about current uses of a property and current compliance with

the pertinent ordinance. See § 45-24-54. Indeed, our Supreme Court has “recognize[d] that a

zoning certificate is not legally binding.” Parker v. Byrne, 996 A.2d 627, 633 (R.I. 2010).

Moreover, pursuant to the clear language of § 45–24–54:

“it is the zoning enforcement officer or agency, not the zoning board

of review, that is authorized in the first instance to ‘provide guidance

or clarification’ by providing ‘information to the requesting party as

to the determination’ of a particular zoning violation and/or

restriction. Although the requesting party may appeal to the zoning

board of review if no written response is provided within fifteen

days of the request . . . nothing in § 45–24–57, detailing the powers

and duties of zoning boards of review, authorizes these boards to

render advisory opinions . . . [T]he authority of zoning boards of

review is limited in scope to that expressly conferred by statute.”

Franco v. Wheelock, 750 A.2d 957, 960 (R.I. 2000).

Section 45–24–54 does not confer upon zoning boards the authority to review the issuance of

zoning certificates. Consequently, any such review would be ultra vires. See § 45–24–54; Franco,

750 A.2d at 960; Roland F. Chase, Rhode Island Zoning Handbook § 199 (3d ed. 2016)

(“Unfortunately for the requester, a zoning certificate, whether issued by the zoning enforcement

officer or the zoning board, is not legally binding and therefore is not appealable.”). As a result,

zoning certificates do not operate to vest any enforceable rights in either an owner of property or

an applicant for a zoning certificate.

The Appellants, nevertheless, contend that when the platting board relied upon the zoning

certificates to grant master plan approval, Appellants obtained limited vested rights under § 45-

24

23-40(g)(1).9 Their rationale tracks that of the Board’s decision, which found that because

Appellants were required to obtain the zoning certificates before they could receive master plan

approval, they acquired vested rights in those certificates and also in the subsequent master plan

approval.

Section 45-24-44, entitled, “Creation of vested rights,” provides in pertinent part:

“If an application for development under the provisions of this

section is approved, reasonable time limits shall be set within which

development of the property must begin and within which

development must be substantially completed.” Section 45-24-44(d)

(emphases added).

In the instant matter, neither Love’s, nor the Gingerella family, acquired any vested rights

in the proposed development under § 45-24-44(d) because, when they received the zoning

certificates, their application had not been approved. Furthermore, although the platting board

may have relied upon the zoning certificates to grant master plan approval, Appellants only

obtained limited vested rights under § 45-23-40(g)(1); namely, the right to proceed to the second,

preliminary plan stage of their application.

Considering that the advisory, nonbinding zoning certificates did not create any vested

rights in Appellants, there could be no injury to an aggrieved party under § 45-24-31(4)(i). With

respect to § 45-24-31(4)(ii), the Court observes that the Zoning Enabling Act does not require a

zoning official to provide a hearing or give notice to any party when considering an application

for a zoning certificate. Indeed, as the issuance of a zoning certificate is merely an administrative

act, it would appear inconceivable that the statute would require notice and a hearing.

9 Section 45-23-40(g)(1) provides, in pertinent part, “The approved master plan is vested for a

period of two (2) years, with the right to extend for two (2), one-year extensions upon written

request by the applicant . . . .” Section 45-23-40(g)(1).

25

In view of the foregoing, the Court concludes that the zoning certificates were not

appealable and that the Board acted in excess of its authority when it entertained the appeal and

rescinded said zoning certificates. Consequently, the Court concludes that the Board’s findings

and conclusions on the appeal of the zoning certificate are void. See Lombardi, 69 A.3d at 850

(stating that “[u]nless an individual is qualified as an appellant, his [or her] purported appeal will

be considered void”) (internal quotation omitted).

IV

Conclusion

After a thorough review of the entire record, this Court finds that the Board’s decision on

the applications for a special-use permit and an aquifer protection permit was not arbitrary and

capricious and was not in violation of statutory, ordinance, and planning board provisions. The

Board’s decision on those applications also was not affected by error of law and was not

characterized by an abuse of discretion. Substantial rights of the Appellants have not been

prejudiced as a result. Accordingly, this Court affirms the Board’s decision to deny the

applications for the special-use permit and the aquifer permit.

The Court further finds that the Board’s decision to hear an appeal of the zoning certificates

was arbitrary and capricious and was in violation of statutory, ordinance, and planning board

provisions. The Board’s decision, on that issue, also was affected by error of law and was

characterized by an abuse of discretion. Substantial rights of the Appellants have been prejudiced

as a result. Accordingly, this Court declares ultra vires the Board’s decision on the appeal of the

zoning certificates.

Counsel shall submit an appropriate order for entry.

26

RHODE ISLAND SUPERIOR COURT

Decision Addendum Sheet

TITLE OF CASE: Love’s Travel Stops and Country Stores, Inc., et al. v.

Philip Scalise, et al.

CASE NO: WC-2017-056

COURT: Washington County Superior Court

DATE DECISION FILED: January 30, 2020

JUSTICE/MAGISTRATE: Thunberg, J.

ATTORNEYS:

For Plaintiff: Kelly M. Fracassa, Esq.

Eric S. Brainsky, Esq.

For Defendant: Todd J. Romano, Esq.