UTGR, Inc. v. Lime Rock Fire District, by and through Albert Ledoux, in his Official capacity as the Lime Rock Fire Marshal; and Office of the State Fire Marshal

STATE OF RHODE ISLAND
PROVIDENCE, SC. SUPERIOR COURT
[FILED: August 4, 2023]
UTGR, Inc. :
:
v. : C.A. No. PC-2022-02014
:
LIME ROCK FIRE DISTRICT, :
by and through Albert Ledoux, in his :
official capacity as the Lime Rock :
Fire Marshal; and OFFICE OF THE :
STATE FIRE MARSHAL :
DECISION
MCHUGH, J. Before this Court for decision is UTGR, Inc. v. Lime Rock Fire District by
and through Albert Ledoux, in his official capacity as the Lime Rock Fire Marshall, and
Office of the State Fire Marshal, C.A. No. PC-2022-02014. Plaintiff, UTGR Inc., (Plaintiff
or UTGR) filed a Petition for Declaratory Judgment that Defendant, Lime Rock Fire
District (Defendant LRFD), was not authorized to collect a fire plan review fee because it
was not collected in accord with the formula provided in G.L. 1956 § 23-28.2-26, as
specifically set forth in the Rhode Island Fire Code at 450 RICR 000-00-7.1.14.3.4, and
the Town of Lincoln’s Ordinance at Part II, Article I, § 117-2(A), and/or (3) constituted
the imposition an illegal tax as the fee collected is not directly related to the total reasonable
and actual cost incurred by the Lime Rock Fire District for the reviewing UTGR’s
application for fire plan review.
This Court has jurisdiction pursuant to G.L. 1956 §§ 8-2-13, 8-2-14, and G.L. 1956
§ 9-30-1.

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I
FACTS AND TRAVEL
Plaintiff owns the property located at 100 Twin River Road in Lincoln, Rhode
Island (Tax Assessor’s Plat 42, Lot 24). (Pet. for Decl. J. ¶ 1) Defendant Office of the State
Fire Marshal (Defendant or OSFM) is a state agency, within the Rhode Island Department
of Business Regulation, as provided in § 23-28.2-1. Id. ¶ 3. Defendant LRFD is an
independent fire district established pursuant to an Act of the General Assembly. See An
Act to Incorporate the Lime Rock Fire District in the Town of Lincoln, H.832, January
Session 1948, approved April 22, 1948. Id. ¶¶ 2, 13. Since 1948, the Lime Rock
Incorporation Act has been amended.1
On September 23, 2021, UTGR submitted to Defendant LRFD plans and
information regarding a fire plan review of UTGR’s proposed 60,920 square foot
expansion of the premises at the property. Id. ¶ 7. The estimated total value of the project
was $50,500,000. Id. On September 28, 2021, LRFD Fire Marshal Albert Ledoux notified
the Project Manager that the plans were reviewed and that the fee was $203,033. Id. ¶ 8.
Marshal Ledoux indicated that the fire plan review fee was calculated based upon the cost
of construction, here, the amount of $50,500,000. Id. ¶ 7.
Plaintiff informed LRFD that it disagreed with the amount calculated for the fire
plan review fee and that it would accept a fee based upon the Town of Lincoln’s ordinance
concerning calculation of cost of construction for purposes of a building permit fee. Id.
¶¶ 27-28. LRFD declined to reduce the fee amount and UTGR paid the $203,033 fee,
1 See 1982 Local Acts page 153; 1984 Local Act No. 84; 1989 Local Act No. 41; 1990
Local Act No. 38; 1994 Local Act No. 21; 1995 Local Act No. 9; 1996 Local Act No. 5;
2006 Local Act No. 9; and 2009 Public Laws Chapters 32 & 43.

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reserving the right to appeal or challenge the calculation and assessment to avoid delaying
the completion of the Project. Id.
UTGR filed an appeal with the Fire Safety Code Board of Appeal and Review (Fire
Board) on January 13, 2022, arguing that LRFD’s calculation and assessment of the fire
plan review fee was erroneous and requesting that the Fire Board reduce the fee to
$43,477.01 and order LRFD to issue a refund to UTGR of $159,555.99. (Pet. for Decl. J.
¶ 28.) After holding a hearing, on March 9, 2022 the Fire Board issued a decision denying
Plaintiff’s request to reduce the plan review fee. See Decision of Fire Board May, 5, 2022.
The Fire Board found that:
(1) Defendant LRFD is an independent fire district and not a department within or
under the control of the Town of Lincoln;
(2) UTGR, through its Project Manager, submitted plans for review, citing a
construction cost of $50,500,000 which resulted in a $203,000 plan review fee;
(3) The Board rejected the Applicant’s argument that Town of Lincoln Municipal
Ordinance Chapter 117. Fees, Article I. Building Permits, § 117-1. Fees for building
permits and/or § 117-2. The new structure is controlling as it relates to the LFD
plan review fees determination;
(4) The municipal ordinance applicable is the LRFD Rules and Regulations titled Plan
Review Submittals;
(5) The Town building official’s determination of cost of construction for purposes of
determining a building permit fee is separate and distinct from the fire district
official’s determination of cost of construction for purposes of determining a fire
plan review fee;

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(6) While using the building official’s determination for cost of construction is one
method that a fire district official may rely on, it is not the only method;
(7) LRFD’s use of the value for cost of construction submitted by UTGR to determine
the plan review fee was both reasonable and justified. Id. at 3.
The Fire Board denied UTGR’s request to reduce the LRRFD plan review fee to
$43,477.01. Id. at 4.
Thereafter, Plaintiff appealed the Fire Board’s Decision to the Rhode Island District
Court, Sixth District, pursuant to § 23-28.3-6. Plaintiff also filed a petition with this Court
on April 7, 2022, seeking:
(a) A declaration that, absent an ordinance enacted by the Town of Lincoln, Defendant
LRFD lacked the authority to collect any fire plan review fee from UTGR;
(b) A declaration that Defendant LRFD has no authority to enact an ordinance to collect
fees for the fire plan review services it provides;
(c) If it is determined that LRFD has authority to assess fire plan review fees, a
declaration that such fees must be calculated based upon “cost of construction”
determined in accordance with Town of Lincoln Code of Ordinances Part II,
General Legislation, Chapter 117. Fees, Article I. Building Permits, § 117-2(A) (the
Lincoln Ordinance)2;
2 Town of Lincoln Code of Ordinances at Part H. General Legislation, Chapter 117. Fees,
Article I. Building Permits, § 117-2(A) (the Lincoln Ordinance) provides as follows:
A. New structures and additions, both commercial and residential:
(l) Fees will be based on the International Building Code’s square foot
construction cost, February
2014 version with footnotes. All square foot numbers will be rounded down
to the whole number.

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(d) A declaration that the $203,033 fire plan review fee assessed by Defendant LRFD
equates to an illegal tax because it is not directly related to the total reasonable and
actual costs incurred for conducting the fire plan review for the Project;
(e) A declaration of the amount that is related to the total reasonable and actual cost
incurred by Defendant LRFD for conducting the fire plan review for the Project;
(f) An award of reasonable attorneys’ fees and costs; and
(g) Such other relief as this Court deems fair and appropriate. See Pet. for Decl. J.
On May 2, 2022, Defendant LRFD filed its Answer to the Petition with LRFD’s
responses to the averments and affirmative defenses. (Def. LRFD’s Answer to Compl. for
Declaratory J.)
Likewise, on May 2, 2022, Defendant OSFM filed its Answer to the Petition including
the OSFM’s responses and prayer that this Court enter judgment as follows:
(a) A declaration that Defendant LRFD is authorized to assess and collect fire plan
review fees in accordance with § 23-28.2-26 and Regulation 450-RICR-00-00-
7.1.14.3.4;
(b) A declaration regarding whether in assessing fire plan review fees under § 23-28.2-
26, Defendant LRFD is required to determine “cost of construction” as provided in the
Lincoln Ordinance;
(c) A declaration regarding whether Defendant LRFD is required to refund any portion
of the $203,033 fire plan review fee paid by Plaintiff UTGR; and
(d) Such other relief as this Court deems just and proper. (Answer of Def. OSFM.)
(2) The square foot cost will be adjusted every two years as published by
the ICC.

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II
STANDARD OF REVIEW
The Uniform Declaratory Judgments Act (UDJA) gives the Superior Court the
‘“power to declare rights, status, and other legal relations whether or not further relief is or
could be claimed.’” N & M Properties, LLC v. Town of West Warwick ex rel. Moore, 964
A.2d 1141, 1144 (R.I. 2009) (quoting § 9-30-1). To state a claim for declaratory judgment,
the Superior Court must be presented with an actual justiciable controversy. Id. (citing
Bowen v. Mollis, 945 A.2d 314, 317 (R.I. 2008)).
The Declaratory Judgments Act, § 9-30-1, provides:
“The superior or family court upon petition, following such
procedure as the court by general or special rules may
prescribe, shall have power to declare rights, status, and
other legal relations whether or not further relief is or could
be claimed. No action or proceeding shall be open to
objection on the ground that a declaratory judgment or
decree is prayed for. The declaration may be either
affirmative or negative in form and effect; and such
declarations shall have the force and effect of a final
judgment or decree.”
“This power is broadly construed, to allow the trial justice to ‘facilitate the
termination of controversies.’” Bradford Associates v. Rhode Island Division of
Purchases, 772 A.2d 485, 489 (R.I. 2001) (quoting Capital Properties, Inc. v. State, 749
A.2d 1069, 1080 (R.I. 1999)). The Rhode Island Supreme Court has held that “persons
whose rights are affected by an ordinance . . . are entitled to bring a declaratory judgment
suit despite the possibility that administrative remedies might be available.” Taylor v.
Marshall, 119 R.I. 171, 180, 376 A.2d 712, 717 (1977). See also Super. R. Civ. P. 57
(stating “[t]he existence of another adequate remedy does not preclude a judgment for
declaratory relief in cases where it is appropriate”). Thus, “the Superior Court has

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jurisdiction to construe the rights and responsibilities of any party arising from a statute
pursuant to the powers conferred upon [it] by G.L. 1956 chapter 30 of title 9, the Uniform
Declaratory Judgments Act.” Canario v. Culhane, 752 A.2d 476, 478-79 (R.I. 2000).
Specifically, § 9-30-2 of the UDJA provides as follows:
“Any person interested under a deed, will, written contract,
or other writings constituting a contract, or whose rights,
status, or other legal relations are affected by a
statute, municipal ordinance, contract, or franchise, may
have determined any question of construction or validity
arising under the instrument, statute, ordinance, contract, or
franchise and obtain a declaration of rights, status, or legal
relations thereunder.” (Emphasis added.)
“This statute gives a broad grant of jurisdiction to the Superior Court to determine
the rights of any person that may arise under a[n ordinance] not in its appellate capacity
but as part of its original jurisdiction.” Canario, 752 A.2d at 479 (citing Roch v.
Garrahy, 419 A.2d 827, 830 (R.I. 1980)). Further, this Court acknowledges that the
purpose of the UDJA is “to allow the trial justice to ‘facilitate the termination of
controversies.’” Bradford Associates, 772 at 489.
III
ANALYSIS
Under the UDJA, the Superior Court can “declare rights, status, and other legal
relations whether or not further relief is or could be claimed.” Section 9-30-1; Canario,
752 A.2d at 479. See also Rhode Island Orthopedic Society v. Blue Cross & Blue Shield
of Rhode Island, 748 A.2d 1287, 1289 (R.I. 2000).
This Court grants the request for declaratory relief, finding that pursuant to Rhode
Island Fire Code Regulations § 1.14.3.4, LRFD is authorized to collect fire plan review
fees, provided such fees do not exceed the amounts set forth in § 23-28.2-26. This Court

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further declares that Defendant LRFD can determine “cost of construction” as provided in
the Lincoln ordinance or can determine “cost of construction” based upon project
information available to LRFD, including information provided by an applicant requesting
plan review.
In accordance with § 23-28.2-26, Albert Ledoux of the Lime Rock Fire District was
a duly appointed and certified Assistant Deputy State Fire Marsal authorized to review fire
plans and collect fees. Assistant Deputy Ledoux conducted the fire plan review with respect
to UTGR’s project. While Plaintiff urges that the statute authorizes the State Fire Marshal’s
Office to collect fire plan review fees, Assistant Deputy Ledoux is duly certified and
appointed to enforce the Fire Safety Code and conduct fire plan reviews. In relevant part,
Rhode Island Fire Code Regulations § 1.14.3.4, and Rhode Island General Laws § 23-28.3-
3 provides as follows:
“Plan review fees, not exceeding the amounts listed in §§
1.14.3.2 and 1.14.3.3, may be collected by the Assistant
Deputy Fire Marshals of the municipal fire departments
and/or fire districts, pursuant to municipal ordinance,
only upon their completion of the plan review process.
All such fees shall be utilized exclusively for supporting
the operations of the municipal fire prevention bureau.
Nothing herein shall preclude an AHJ, performing an
inspection, pursuant to either Rhode Island Life Safety Code
(RILSC) §§ 24.6.3.1.3.1 or 25.2.2.3.1, from being paid at the
time of that inspection.”
Section 1.14.3.4 also establishes maximum plan review fees that a district may
collect. The maximum fees for fire districts are the fire plan review fees established for the
State Fire Marshal’s Office in Rhode Island General Laws § 23-28.2-26, which provides:
§ 23-28.2-26. Plan review fees.
(a) Every request for plan review, by the state fire marshal’s office, under
the provisions of the Fire Safety Code shall be accompanied by the fee
prescribed in this section. Plan review fees shall be as follows:

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NEW BUILDING, ADDITIONS, ALTERATION, STRUCTURES,
ETC.
General permit fees based on cost of construction
$500 or less ………………………………………………… $25.00
Over $500 but not over $1,000……………………………… $35.00
Over $1,000 but not over $2,000……………………………. $45.00
Over $2,000 but not over $500,000…………………………. $45.00+
(plus $6.00 per $1,000 or fraction thereof over $2,000)
Over $500,000……………………………………………. $3,033.00+
(plus $4.00 per $1,000 or fraction thereof over $500,000)
(b) All fees collected pursuant to this section shall be deposited as general
revenue.
As such, Assistant Deputy Ledoux was authorized to conduct the fire plan review
of Plaintiff’s project and collect the corresponding fire plan review fee pursuant to Fire
Code Regulations § 1.14.3.4 in an amount not exceeding the amount prescribed by § 23-
28.2-26.
Next, UTGR contends that if LRFD has authority to collect plan review fees, the
fees must be calculated in accordance with the Lincoln Ordinance and not the LRFD FPR
Regulation. (Pl.’s Mem. at 10-11.) As support for this assertion, Plaintiff relies on the
language in Fire Code Regulation § 1.14.3.4 that fire plan review fees “may be collected
by the Assistant Deputy Fire Marshals of the municipal fire departments and/or fire
districts, pursuant to municipal ordinance.” Id. Nevertheless, LRFD is an independent
municipal entity, that is separate from the Town of Lincoln. See Flynn v. King, 433 A.2d
172, 175 (R.I. 1981) (“fire districts are also public or quasi-public corporations”). As such,
when determining the “cost of construction,” LRFD is not obligated to follow the Lincoln
town ordinance because it is an independent quasi-municipal entity. See id.
Moreover, this Court must give deference to the Fire Board’s decision that “the
municipal ordinance applicable in this matter is the LRFD Rules and Regulations titled
Plan Review Submittals.” See Decision of Fire Board at 3, May 5, 2022; Labor Ready

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Northeast, Inc. v. McConaghy, 849 A.2d 340, 345 (R.I. 2004) (citing Pawtucket Power
Associates Limited Partnership v. City of Pawtucket, 622 A.2d 452, 456-57 (R.I. 1993)).
As such, the regulation LRFD adopted was properly applied, giving deference to the Fire
Board’s determination. Id.
Next, UTGR contends that LRFD’s use of UTGR’s submitted value as “cost of
construction” for purposes of calculating the fire plan review fee was inappropriate. (Pl.’s
Mem. at 11-12.) Plaintiff has not provided information to suggest the cost of construction
it provided was incorrect, rather that LRFD should apply the Town Ordinance with respect
to cost of construction, which would lower the project and resulting fire plan review fee.
See Pl.’s Mem. at 11. The Fire Board concluded that LRFD’s use of the cost of construction
figured submitted by UTGR was “reasonable and justified.” (Fire Board Decision at 3,
May 5, 2022.) As such, LRFD’s reliance of UTGR’s assessment of construction costs for
this project was appropriate. Id.
It is well-settled that Defendant LRFD is an independent quasi-municipal entity and
is not bound by the Lincoln town ordinance. Flynn, 433 A.2d at 175. As such, Defendant
LRFD can determine “cost of construction” as provided in the Lincoln ordinance or can
determine “cost of construction” based upon project information available to LRFD,
including information provided by the applicant requesting plan review. Id.

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IV
CONCLUSION
For the above reasons, this Court grants the request for declaratory relief, finding
that pursuant to Rhode Island Fire Code Regulations § 1.14.3.4, LRFD is authorized to
collect fire plan review fees, provided such fees do not exceed the amounts set forth in
§ 23-28.2-26. This Court further declares that Defendant LRFD can determine “cost of
construction” as provided in the Lincoln ordinance or can determine “cost of construction”
based upon project information available to LRFD, including information provided by the
applicant requesting plan review. Counsel shall prepare and submit an order consistent with
this Decision.

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RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
TITLE OF CASE: UTGR, Inc. v. Lime Rock Fire District, by and
through Albert Ledoux, in his official capacity as
the Lime Rock Fire Marshal; and OFFICE OF
THE STATE FIRE MARSHAL
CASE NO: PC-2022-02014
COURT: Providence County Superior Court
DATE DECISION FILED: August 4, 2023
JUSTICE/MAGISTRATE: McHugh, J.
ATTORNEYS:
For Plaintiff: William M. Russo, Esq.
For Defendant: Louis DeSimone, Jr., Esq.; Ania M. Zielinski,
Esq.