REDWOOD REALTY II, LLC and NORTH AMERICAN PROCESSING, LLC, F/K/A NEW ENGLAND DISPOSE, LLC
STEVE WOERNER, in his capacity as Finance Director for the Town of Cumberland, Rhode Island; KELLEY NICKSON-MORRIS, in her capacity as a former member of the Zoning Board of Review for the Town of Cumberland, in her capacity as a former Town Councilor of the Town Council for the Town of Cumberland; CARL ZOUBRA, in his capacity as a member of the Zoning Board of Review for the Town of Cumberland; TARA CAPUANO, in her capacity as a member of the Zoning Board for the Town of Cumberland; ROBERT CHAPUT, in his capacity as a member of the Zoning Board of Review for the Town of Cumberland; JOHN McCOY, in his capacity as the Chairman of the Zoning Board of Review for the Town of Cumberland; EDMOND M. McGRATH, in his capacity as a member of the Zoning Board of Review for the Town of Cumberland; DANIEL McKEE, in his capacity as Mayor for the Town of Cumberland; RAYMOND MADDEN, individually, and in his capacity as the former Building and Zoning Official for the Town of Cumberland; NEIL J. HALL, in his capacity as the Building and Zoning Official for the Town of Cumberland; KEVIN F. CRAWLEY, in his capacity as a member of the Planning Board for the Town of Cumberland; KENNETH BUSH, in his capacity as a member of the Planning Board for the Town of Cumberland; ROY COSTA, JR., in his capacity as a member of the Planning Board for the Town of Cumberland; HARRY MacDONALD, in his capacity as a member of the Planning Board for the Town of Cumberland; ISABEL SILVESTRE REIS, in her capacity as a member of the Planning Board for the Town of Cumberland; MARIA VRACIC, in her capacity as a member of the Planning Board for the Town of Cumberland; DAVID COUTU, in his capacity as a member of the Planning Board for the Town of Cumberland; ANTHONY PANDOZZI, in his capacity as a member of the Planning Board for the Town of Cumberland; CHRISTOPHER A. BUTLER, in his capacity as a member of the Planning Board for the Town of Cumberland
Providence County Superior Court
For Plaintiff: Michael A. Kelly, Esq.
For Defendant: Michael F. Horan, Esq. Michael A. DeSisto, Esq.
Before the Court in this action for Declaratory Judgment, Plaintiffs Redwood Realty II, LLC (Redwood) and North American Processing, LLC, F/K/A New England Dispose, LLC (collectively, Plaintiffs), have filed a Motion for Leave to File a Second Amended Complaint. In response, the Defendants object and have filed a Motion for Summary Judgment. Jurisdiction is pursuant to Super. R. Civ. P. 56 and 15, and the Uniform Declaratory Judgments Acts (UDJA), G.L. 1956 § 9-30.
Facts and Travel
Redwood is the owner of real property located at 32 Martin Street in Cumberland, Rhode Island, and otherwise known as Lot 236 of Assessor's Plat 34 (Property). The Property consists of approximately fourteen acres of land and is located within a light industrial (I-1) zoning district. In January 2006, Redwood entered into a partnership with New England Dispose, LLC (Dispose) (later known as North American Processing, LLC) for the development of a construction and demolition processing facility (C & D Facility) on the Property.
On March 13, 2006, counsel for the Plaintiffs submitted a request to the Town of Cumberland Building Official,  Mark Favreau, for a Zoning Certificate for the proposed C & D Facility. Through this Zoning Certificate, Dispose sought a determination that the proposed C & D Facility constituted wholesale trade within an enclosed structure for purposes of the Cumberland Zoning Ordinance (Ordinance) and, thus, constituted a permitted use for an I-1 zoning district.
On March 20, 2006, after reviewing the preliminary plans and consulting with the Town Planner, Mr. Favreau concluded that the proposed C & D Facility was allowed on the Property by right and issued a Zoning Certificate. The Plaintiffs then submitted a Preliminary Design Plan Review Application for the C & D Facility to the Town of Cumberland Planning Board (Planning Board). On May 2, 2006, the application was certified as complete. On July 28, 2006, two Cumberland residents appealed the issuance of the Zoning Certificate with the Zoning Board of Review, sitting as the Board of Appeals (Zoning Board).
Meanwhile, because the Planning Board failed to act upon the Preliminary Design Plan Review Application within sixty-five days as required by Section 5(F) of the Cumberland Land Development and Subdivision Regulations, the plan was deemed complete on August 7, 2006. The Plaintiffs informed the Planning Board that they intended to seek a Final Plan review. On September 15, 2006, a second appeal of the Zoning Certificate was filed with the Zoning Board by two other Cumberland residents.
On November 8, 2006, Plaintiffs filed the instant declaratory and injunctive relief action. Specifically, they were seeking this Court to (1) enjoin the Zoning Board from conducting a hearing that same day; (2) declare that Defendants were estopped from revoking the Zoning Certificate; and (3) enjoin Defendant Kelley Nickson-Morris (Ms. Nickson-Morris), in her capacity as a Zoning Board member and Councilwoman-elect, from interfering with any pending or new applications for a Zoning Certificate and from participating in the pending appeals, as well as enjoin Defendant Daniel McKee, in his capacity as Mayor-elect (Mayor McKee), from interfering with or revoking the existing Zoning Certificate. The Court granted Plaintiffs' request to enjoin the Zoning Board from conducting the November 8, 2006 Zoning Board hearing.
Meanwhile, Mayor McKee hired Raymond Madden as the new Building Official and tasked him with reviewing and evaluating Plaintiffs' original Zoning Certificate application in light of the applicable Zoning Code provisions. Mr. Madden commenced his employment with the Town of Cumberland on January 8, 2007. On January 10, 2007, he informed Mayor McKee that he believed that the Zoning Certificate had been issued erroneously and that he would await further instruction and direction from Mayor McKee regarding how to proceed.
Mayor McKee sought confirmation of Mr. Madden's conclusion from Attorney Michael Horan. Attorney Horan concurred that the issuance of the Zoning Certificate was in excess of Mr. Favreau's lawful authority, and consequently, was an ultra vires act. He then concluded that the Town of Cumberland legally could revoke and nullify the Zoning Certificate.
On January 19, 2007, Mr. Madden notified Plaintiffs that he was revoking the Zoning Certificate because the Zoning Code did not permit a C & D Facility within an I-1 zoning district. As a result of this revocation, the pending zoning appeals filed by Plaintiffs' neighbors were terminated by agreement of the parties. The Plaintiffs then filed their own appeal to the Zoning Board. In it, they challenged the legality and propriety of Mr. Madden's revocation of the Zoning Certificate.
While that appeal was pending, on February 28, 2007, Plaintiffs submitted two new Zoning Certificate requests to Mr. Madden with respect to the Property. The first request sought an opinion as to whether a C & D Facility was a permitted use in an I-1 zoning district. The second request sought a determination as to whether a wood and wood product processing and manufacturing facility (Wood Processing Facility) was a permitted use in the same zoning district. On March 19, 2007, Mr. Madden denied both requests, finding that neither use was permitted under the Zoning Code in an I-1 zoning district. The Plaintiffs appealed this ruling to the Zoning Board in a second zoning appeal.
On April 23, 2007, the parties agreed to stay the aforementioned zoning appeals to allow Plaintiffs to submit an application to the Planning Board for a Development Plan Review of the proposed C & D Facility. The parties further agreed that should the Planning Board deny the application, Plaintiffs would recommence their appeals before the Zoning Board. The Plaintiffs then submitted their Development Plan Review application for the C & D Facility to the Planning Board.
The Planning Board scheduled a hearing on the matter for May 30, 2007. At that hearing, the Planning Board voted to deny the application without hearing any evidence or considering the merits of the application. Instead, the Planning Board reasoned that it had no jurisdiction over the matter because Mr. Madden previously had revoked the Zoning Certificate after determining that a C & D facility was not a permissible use in an I-1 zoning district. The Planning Board left open the possibility of revisiting the matter in the event that the proposed use was determined to be permissible or that the revocation was set aside. The Plaintiffs appealed this decision to the Zoning Board.
At that point, Plaintiffs had various appeals pending before the Zoning Board; namely, (a) Mr. Madden's revocation of the Zoning Certificate; (b) his denial of a Zoning Certificate for a C & D Facility; (3) his denial of a Zoning Certificate for a Wood Processing Facility; and (4) the Planning Board's denial of the Development Plan Review application. The Zoning Board consolidated all of these appeals for review and, between April 23, 2007 and December 17, 2007, it conducted seven hearings at which numerous witnesses testified and documentary evidence was submitted.
While these appellate hearings were being conducted, Plaintiffs turned their attention back to the instant declaratory action. Accordingly, on July 19, 2007, Plaintiffs filed a Motion for Leave to File an Amended Complaint, which Motion was granted by Rule of Court. In their First Amended Complaint, Plaintiffs made various allegations of substantive and procedural due process violations of their rights. They sought the Court to declare: (1) that they had been deprived of their right to a fair and impartial hearing; (2) that under the doctrines of vested rights, laches, and equitable estoppel, Defendants were estopped from revoking the Zoning Certificate; and (3) that Mayor McKee and Mr. Madden's action amounted to intentional interference with expected business opportunity. The Plaintiffs additionally sought damages and an injunction ordering Defendants to refrain from interfering with any pending or new applications.
Meanwhile, after the conclusion of the hearings in the four consolidated appeals before the Zoning Board, the Zoning Board found that the Zoning Code did not permit the operation of either a C & D Facility or a Wood Processing Facility within an I-1 zoning district; consequently, it denied all four appeals. Accordingly, the Zoning Board concluded that Mr. Madden acted properly when he revoked Plaintiffs' Zoning Certificate and later rejected their subsequent Zoning Certificate requests. The Zoning Board further concluded that the Planning Board properly denied Plaintiffs' Development Plan Review application. On February 11, 2008, the Zoning Board issued three written decisions summarizing its findings and conclusions with respect to Plaintiffs' four appeals. The Plaintiffs appealed those decisions to this Court.
On March 16, 2011, this Court issued a written Decision in which the Court remanded the consolidated matters to the Planning Board for consideration of Plaintiffs' Development Plan Review application. A subsequent Motion to Reconsider was granted in part and denied in part on September 6, 2011. In that Decision, the Court mandated that the Planning Board consider the application pursuant to the Ordinance in effect prior to October 7, 2007, and it permitted the Planning Board to receive and consider evidence at the hearing on remand.
Meanwhile, on September 30, 2011, Plaintiffs filed a Motion for Leave to File a Second Amended Complaint. In Plaintiffs' proposed four-Count Second Amended Complaint, they allege that their Substantive and Procedural Due Process Rights were violated, and they seek the Court to declare Defendants' intentional interference "amount[s] to harassment, intimidation and an unnecessary hindrance of the Plaintiffs' business, business expectation/advantage/opportunity and rights as afforded by the Rhode Island Constitution and Rhode Island General Laws." (Second Am. Compl. at 26, 31, 34, and 36). As a result of these alleged violations, Plaintiffs seek damages, attorneys' fees, costs and other further relief that the Court may deem fair, just and equitable. The Defendants object to Plaintiffs' Motion for Leave to File a Second Amended Complaint, and additionally have filed a Motion for Summary Judgment.
Mindful of the possible applicability of the Doctrine of Administrative Finality to this case, the Court inquired about the status of the consolidated cases on remand to the Planning Board after the instant Motions were filed. Counsel for the Plaintiffs informed the Court that:
"Unfortunately, for several reasons, my client does not want to pursue this project before the Planning Board. Importantly, those reasons include:
"1. The current economic climate, which has changed dramatically since 2006;
"2. The fact that other competitors have moved in and are currently operating similar operations that would drastically impact my client's market share with respect to the facility he had proposed; and
"3. The same Administration is in place in the Town, and one of the named Defendants, who was diametrically opposed to the proposal, is currently the Director of Planning for the Town.
"Accordingly, based on the foregoing, my client simply wants this case to move along with respect to the damages he has been seeking for the violation of his constitutional rights, particularly, his right to a fair hearing and/or those associated with the unfair/categorical denial of his final plan application despite a preliminary plan approval." Letter from Attorney Michael A. Kelly, dated Jan. 22, 2013.
With this information and clarification before it, the Court now will consider the present Motions. Additional facts will be supplied as needed.
Standard of Review