EDWARD P. BALBAT, DANIELLE BALBAT, STEVE DUBOIS, CHERYL DUBOIS, LOUIS PUCCI AND NANCY PUCCI Plaintiffs
COPAR QUARRIES OF WESTERLY, LLC; WESTERLY GRANITE COMPANY, INC.; THE TOWN OF WESTERLY; and MAINE DRILLING AND BLASTING, INC. Defendants
Providence County Superior Court
For Plaintiff: Michael A. Kelly, Esq. Joelle C. Rocha, Esq. Michael P. Lynch, Esq.
For Defendant: Richard A. Boren, Esq. Mark P. Dolan, Esq. Christopher M. Mulhearn, Esq. Krista J. Schmitz, Esq. Adam C. Benevides, Esq. Brian C. Newberry, Esq.
Before this Court is the Plaintiffs' Motion for Leave to File a Third Amended Complaint. Plaintiffs-Edward P. Balbat, Danielle Balbat, Steve Dubois, and Cheryl Dubois- seek to add additional claims and one additional party to their already amended Complaint. Further, the Plaintiffs seek to clarify Count I against the Town of Westerly (Westerly or Defendant), claiming Westerly violated their procedural and substantive due process rights as protected under 42 U.S.C. § 1983. Westerly has filed an objection on the grounds that any amendment as it relates to Count I of the Plaintiffs' Complaint would be futile. Also before this Court is Westerly's Motion to Dismiss Count I of the Plaintiffs' Second Amended Complaint, arguing that the Plaintiffs lack standing to challenge its decision to seek judicial assistance over the Notices of Violation appeals filed by Copar Quarries of Westerly, LLC (Copar) and Westerly Granite Company, Inc. (Westerly Granite). The Plaintiffs have filed a timely objection.
Facts and Travel
The facts underlying this dispute are extensive, and the parties are familiar with the lengthy travel of this case. Accordingly, this Court undertakes a minimal review of the facts pertinent to the Defendant's Motion to Dismiss Count I of the Plaintiffs' Second Amended Complaint and Plaintiffs' Motion for Leave to File a Third Amended Complaint.
The current dispute arises from the quarrying operations conducted in the vicinity of the Plaintiffs' properties. Westerly Granite is the owner of property in Westerly (the Property) which it has leased to Copar since 2010. Copar has used the property for quarrying, storing and processing rock, sand and gravel operations, and blasting. In 2011, the Plaintiffs and other neighbors living in close proximity to the quarry complained to Westerly regarding the significant noise, fugitive dust and vibrations, and heavy commercial traffic from Copar's operations. The Plaintiffs' complaints were intended to inform Westerly of the property damage being sustained as a result of the quarrying operations.
On November 2, 2012,  Westerly's Zoning Official, Elizabeth Burdick, issued a revised Notice of Violation and Cease and Desist Order (NOV) to Copar and Westerly Granite, determining quarrying operations had been abandoned in the area known as the "Lucey Property." The NOV was based on Copar's expansion of the pre-existing and approved use of processing rock outside the "processing area, " and the repeated nuisance complaints by the neighbors, documentary evidence, and site inspections. Subsequently, Westerly's Special Zoning Officer issued another Notice of Violation and Cease and Desist Order regarding the entire Property on February 12, 2013 (NOV II). Copar and Westerly Granite filed timely appeals to Westerly's Zoning Board of Review.
In February of 2013, public hearings were held-but were not completed-regarding the first NOV, pursuant to G.L. 1956 § 45-24-66. During this time, Westerly Granite and Copar filed a Complaint against Westerly, WB-2013-0136, arguing that the quarrying operations at the Property constitute a legal nonconforming use. On November 12, 2013, Copar and Westerly Granite filed a motion for injunctive relief to preclude Westerly's Zoning Board of Review from continuing to hold the appeal hearings due to alleged bias of certain members of the board. This Court issued an Order temporarily enjoining Westerly's Zoning Board of Review from proceeding with the appeal hearings. On November 19, 2013, Westerly filed a motion seeking to invoke the jurisdiction of the Court to exclusively decide the underlying NOV and NOV II matters. Pursuant to §§ 45-24-60, 62, and G.L. 1956 § 9-30-1, this Court granted Westerly's motion to exercise jurisdiction over the NOV appeals, resulting in both appeals being withdrawn from the Westerly Zoning Board of Review.
While these appeals were pending before this Court, Westerly's Zoning Official issued a new Notice of Violation and Cease and Desist Order (NOV III) to Copar and Westerly Granite on November 27, 2013. The NOV III alleged that certain quarrying operations were not permitted on the Property, and that excessive noise and fugitive dust were emanating from the Property. On December 30, 2013, Westerly petitioned this Court to take jurisdiction over the NOV III appeal. Westerly's motion was granted, and this Court took jurisdiction over the NOV III appeal.
The neighboring Plaintiffs moved to intervene in the WB-2013-0136 matter. After holding a hearing on the issue of intervention, this Court granted the neighbors the right to intervene for the limited purposes of discovery. A hearing was scheduled to take place before February 24, 2014 to determine whether the intervenors could participate in the trial. Before such a hearing took place, Westerly, Copar, and Westerly Granite entered into a Consent Agreement,  effectively settling the companion case, WB-2013-0136.
The Plaintiffs' Cause of Action