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Balbat v. Copar Quarries of Westerly, LLC

Superior Court of Rhode Island

October 3, 2014


Washington County Superior Court

For Plaintiff: Michael A. Kelly, Esq. Joelle C. Sylvia, Esq.

For Defendant: Richard A. Boren, Esq. Jeffrey H. Gladstone, Esq. Thomas J. Enright, Esq. Christopher M. Mulhearn, Esq. Michael P. Lynch, Esq. Krista J. Schmitz, Esq.



Before this Court is Plaintiffs' Motion for Summary Judgment on Westerly Granite Company, Inc.'s (Defendant or Westerly Granite) counterclaim and affirmative defenses eleven through seventeen as asserted in Defendant's answer to the Plaintiffs' revised second amended verified complaint. Plaintiffs assert immunity from the Defendant's above-mentioned counterclaim and affirmative defenses pursuant to the Rhode Island Limits on Strategic Litigation Against Public Participation law (commonly referred to as the Anti-SLAPP statute). Further, Plaintiffs move this Court to award attorneys' fees and costs under the Anti-SLAPP statute. Jurisdiction is pursuant to G.L. 1956 § 9-33-2(c).


Facts and Travel

The above controversy emanates from the Defendant's use of the Defendant's property and its effect on the properties owned by the surrounding Plaintiffs. Plaintiffs are all residents of the Town of Westerly residing in the vicinity of Defendant's—Westerly Granite—property. (Second Am. Compl. ¶ 1). Defendant is a Rhode Island corporation and owner of property on Quarry Road in Westerly, identified as Assessor's Plat 55, Lot 1 (the Property). Id. at ¶ 3. Defendant's property, consisting of a quarry, historically has been used for activities associated with the Extractive Industry as defined in G.L. 1956 § 45-24-31(25) (quarrying operations) (Def.'s Countercl. ¶ 7). Quarrying extraction on the Defendant's property existed long before the Defendant purchased the property and traces its origins back to the 1800s when the quarry was first opened by Sullivan Granite Company in 1834. Id. at ¶ 8. The current zoning district for the Defendant's property allows for light industrial use. (Second Am. Compl. ¶ 7). Quarrying operations are allowed in this zoning district upon receiving a Special Use Permit from the Town's Zoning Official. Id.

Background to Plaintiffs' Lawsuit

On August 15, 2007, Anthony R. Giordano—Westerly's former Zoning Official—issued the Defendant a Zoning Certificate allowing for quarrying operations on the property without the Defendant having to obtain a Special Use Permit first. Id. at ¶¶ 7-8. Mr. Giordano found quarrying operations on the property predated the Town of Westerly's current zoning ordinance qualifying such activities as a pre-existing use. Id. at ¶ 8. In October 2010, Westerly Granite entered into a lease agreement with Copar Quarries of Westerly, LLC (Copar) granting Copar the right to carry out quarrying operations on the property. (Second Am. Compl. ¶ 6); see Pls.' Mem. Ex. F.

Starting in and around 2011, Copar began using Defendant's property in accordance with the lease agreement. Soon after Copar's quarrying operations commenced, the Plaintiffs began to notify the Town of Westerly of the adverse effects the noise and fugitive dust originating from quarrying operations on Defendant's property were having on their properties. (Second Am. Compl. ¶ 30). The Plaintiffs notified the Town of Westerly that the migration of fugitive dust beyond the Defendant's property border was an illegal trespass and was in violation of Rhode Island Department of Environmental Management (RIDEM or DEM) regulations. Id.

On December 5, 2011, the Town Council for the Town of Westerly made reference to the fact that quarrying operations on Defendant's property had been previously abandoned prior to its 2007 Zoning Certificate being issued. Id. at ¶ 10. The Town of Westerly, through its Zoning Official—on August 7, 2012; February 12, 2013; and November 27, 2013—issued three separate Notices of Violation and Cease and Desist Orders to Defendant and their lessee, Copar. Id. at ¶¶ 17-19. The February and November 2013 Notices of Violation revoked the Zoning Certificate issued to the Defendant, finding its issuance was based on inaccurate information, and ordered all quarrying operations to cease immediately as the Defendant was not in compliance with the Town of Westerly's Zoning Ordinance. Id. at ¶¶ 18-19.

On March 22, 2013, Westerly Granite, along with Copar, filed a verified amended complaint against the Town of Westerly and the Zoning Board of Review seeking to invalidate the Notices of Violation. (Second Am. Compl. ¶ 20). Before the date set for trial, the Town of Westerly withdrew most of the Notices of Violation and reached a settlement with Westerly Granite and Copar. Id. at ¶ 22. The Consent Order (Consent Order I) among the parties held quarrying operations on the Defendant's property constitutes a legal pre-existing use and can be carried out throughout the entire property.[1] Id.

Current Action

Copar has conducted quarrying operations on the Defendant's property since 2011. (Second Am. Compl. ¶ 30). Plaintiffs Edward and Danielle Balbat constructed their home in or about 2006 and allege that no quarrying activities were taking place at that time.[2]Id. at ΒΆ 23. Plaintiffs allege in their complaint that the continual quarrying operations conducted on Defendant's property have detrimentally affected the Plaintiffs and their property. ...

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