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Four Corners Properties, LLC v. Town of Tiverton

Superior Court of Rhode Island

November 8, 2017

TOWN OF TIVERTON; NEIL J. HALL, solely in his capacity as Building & Zoning Official of the Town of Tiverton; and MATTHEW WOJCIK, solely in his capacity as Town Administrator of the Town of Tiverton, Defendants.

         Newport County Superior Court

          For Plaintiff: William M. Dolan III, Esq.; Nicholas L. Nybo, Esq.

          For Defendant: Patrick J. Dougherty, Esq.; Michael DeSisto, Esq.


          STERN, J.

         This comes before this Court on Plaintiff Four Corners Properties, LLC's (Four Corners) motion for summary judgment, asserting that it is entitled to judgment as a matter of law to the following: (1) an order permanently enjoining the Town of Tiverton (the Town); Neil J. Hall (Hall), solely in his capacity as Building & Zoning Official of the Town; and Matthew Wojcik (Wojcik), solely as Town Administrator of the Town (collectively, Defendants), from taking any additional enforcement actions against Four Corners with respect to the matters set forth in three notices of violations (NOVs) issued against Four Corners; (2) an order declaring that Defendants' actions, as evidenced by the NOVs, are unlawful exercises of municipal authority; and (3) an order finding that Defendants are liable for tortious interference with existing and prospective economic advantage and violation of Four Corners' due process rights under 42 U.S.C. § 1983. Defendants object to Four Corners' motion, claiming that Four Corners has failed to exhaust its administrative remedies, and that there are genuine issues of material fact which would prohibit this Court from entering judgment as a matter of law in favor of Four Corners. Jurisdiction is pursuant to Super. R. Civ. P. 56(c).


         Facts and Travel

         Four Corners is the record owner of property located in Tiverton, Rhode Island identified as 0 East Road, 28 East Road, 18 East Road, 3852 Main Road, 3842 Main Road, 3838 Main Road, 3841 Main Road, 3845 Main Road, 3847 Main Road, 3851 Main Road, 3879 Main Road, 17 Neck Road, and 3895 Main Road (collectively, the Premises). Am. Verified Compl. ¶ 11. Located on the Premises is a building known as the Meeting House, which, along with other commercial properties owned by a sister corporation of Four Corners, compose what is commonly referred to as Tiverton Four Corners. Id. ¶¶ 11, 13. Rosalind Weir (Ms. Weir) and her late husband's trust, for which Ms. Weir serves as the sole trustee, own the Meeting House. Id. ¶ 11.

         The Tiverton Building Inspector issued a permit to Four Corners to build the Meeting House. Id. ¶ 14. Ms. Weir and her late husband, James Weir, organized Four Corners and built the Meeting House in 1995, and, shortly after its construction, Four Corners was issued a certificate of conformance for the septic system servicing the Meeting House from the Rhode Island Department of Environmental Management (RIDEM). Id. ¶¶ 11, 14, 15. The certificate of conformance indicated that the maximum capacity for the septic system was twenty-seven people based on the retail use of the Meeting House, as well as the retail and office use of two other buildings served by the septic system. See Notice of Violation, Mar. 29, 2011. In addition, RIDEM issued an on-site wastewater treatment system (OWTS) permit for an onsite septic system for the Meeting House and two nearby small office buildings in 1998. Am. Verified Compl. ¶ 15. The application for the OWTS permit stated that the use of the Meeting House would be an art gallery/retail location. Id. Since then, the Meeting House has never been used for retail purposes and only occasionally as an art gallery. Id.

         Between 1991 and 2016, Four Corners has hosted concerts, art exhibits, theatrical performances and weddings on the Premises, averaging approximately fifty-five (55) events per year since 2000. Id. ¶ 16. Moreover, Four Corners has contracted with third parties for the use of the Meeting House as a venue for hosting private events within the past year. Id. ¶ 17.

         On May 28, 2009 and June 5, 2009, the Town issued NOVs to Four Corners, citing various items on the Premises that it deemed non-compliant with the Town's building code. Id. ¶ 19. In addition, the Town informally raised an issue with the septic system servicing the Meeting House. Id. ¶ 20. Mr. Weir informed the Town that he would investigate the concerns raised by the Town and engaged Anthony DeSisto, Esq. as counsel to assist Four Corners in having the Town withdraw its cease and desist orders. Id. ¶ 21. Mr. Weir also engaged environmental engineers to assist in addressing the Town's septic concerns and, in April 2010, Mr. Weir informed the Town of his plans to upgrade the water and septic systems on the Premises. Id. ¶ 22. Working with Attorney DeSisto, Four Corners contacted RIDEM to discuss the sustainability of the on-site wastewater treatment system. Id. ¶ 23.

         On March 29, 2011, the Town formally issued a NOV to Four Corners. The March 29, 2011 NOV stated:

"It has come to my attention that you are advertising the presentation of certain performing arts productions to take place at the 'Meeting House' on the subject property. This structure was permitted as a proposed 'retail - art gallery' on 3/1/1995 . . . . A septic system application approved on 2/21/95 for this structure and two other buildings indicates a design capacity for 27 persons total . . . .
"For approximately the last two years this office has contacted you either by phone, in writing, or in person in an attempt to gain compliance with the actual use of this structure . . . which under Chapter 3 of the Rhode Island State Building Code (RISBC) is Assembly A1 . . . .
"The building permit cited above indicates 1600 square feet of floor space proposed. RISBC Chapter 10 table allows the maximum occupancy load to be 5 square feet per person or 320 for this structure . . . Clearly this far exceeds the 27 person capacity of the present system. While the above occupancy load may vary by type of seating etc., as well as a likely more stringent calculation by Fire Prevention, an unacceptable overload of the system is likely.
"It is understood that problems with an overload have been avoided by use of portable toilets, however, RISBC Chapter 29 Section 2901 requires 3 water closets and 2 lavatories for males and 5 water closets and 2 lavatories for females. In addition, 1 drinking fountain and 1 service sink are required for this structure and use . . . .
"You are hereby ordered to immediately cease and desist from any and all assembly use of the subject property." Notice of Violation, Mar. 29, 2011; see also Am. Verified Compl. ¶¶ 24-25.

         The March 29, 2011 NOV concluded with the signature of the then-Building/Zoning Official, Gareth Eames (Eames). See Notice of Violation, Mar. 29, 2011.

         Attorney DeSisto, in or around April 2011, thereafter drafted a complaint (Draft Complaint) for injunctive relief on behalf of Four Corners against the Town and Eames. Id. ¶ 26. The Draft Complaint stated that the March 29, 2011 NOV "does not state that the septic system for the Meeting House has failed, and cites no instance of an improper public assembly." Id. ¶ 27. In addition, the Draft Complaint asserted that "[t]here is no basis for the issuance of [a NOV] barring public gatherings at the Meeting House" and that the NOV was "unreasonable and serve[d] no compelling public interest because it fail[ed] to take into account the use of portable toilets on the Premises for public gatherings when appropriate." Id. ¶ 28. The Draft Complaint also claimed that RIDEM "has jurisdiction over the regulation of septic systems, preempting [the Town's] efforts to regulate the same by way of NOV." Id. ¶ 29. The Draft Complaint lastly stated that Four Corners' "use of the Meeting House and Premises for public gatherings is an appropriate and lawful use." Id. ¶ 30. Four Corners asserts that these allegations were and continue to be supported by meter readings that prove that the septic systems servicing the Premises are in accordance with RIDEM requirements. Id. ¶ 31.

         Four Corners also engaged an environmental engineering firm, Mount Hope Engineering, in 2011, and applied for a Suitability Determination with RIDEM. Id. ¶ 33. In April 2011, Four Corners' environmental engineer communicated to the Town that any issues with the septic capacity would be reported to the Town. Id. Subsequently, on December 11, 2011, Mount Hope Engineering wrote to Eames to report that the septic system servicing the Premises had a maximum capacity of 405 gallons per day and that the Meeting House septic system had a daily usage of 108 gallons per day. Id. ¶ 34.

         Thereafter, on March 7, 2012, RIDEM issued to Four Corners a Certificate of Conformance for the septic system on the Premises. Id. ¶ 35. In its application, Four Corners stated that the original use of gallery/retail had not occurred and that the Premises were being used for a variety of theater/auditorium purposes. Id. The original Certificate of Conformance issued by RIDEM allowed twenty-seven occupants in the Meeting House and the two small office buildings located nearby based on a retail employee and an office worker each requiring fifteen gallons per day of septic capacity. Id. ¶ 36. However, as an auditorium/theater, the Meeting House's required daily septic capacity is only three gallons per day per seat. Id. When RIDEM issued the Certificate of Conformance in March 2012, it mistakenly left the occupancy/use figure on the certificate as twenty-seven persons rather than 107 persons. Id.

         The Town sent Four Corners a NOV on December 17, 2013, which stated that the NOVs would remain in effect until the Town received a Certificate of Conformance from RIDEM. Id. ¶ 37. The December 17, 2013 NOV also acknowledged that the Meeting House had the required number of bathrooms. Id.

         During the year 2015, the Town's management changed: Attorney DeSisto became Tiverton's Town Solicitor, Eames was replaced by Defendant Hall as the Town's Building and Zoning Official, and Defendant Wojcik became the Town Administrator for the Town. Id. ¶ 38. Hall quickly went into action, transmitting a cease and desist order to Four Corners, citing an "unsafe condition" on the Premises; in support of its cease and desist, Hall referenced G.L. 1956 §§ 22-27.3-120.3, 23-27-120.4, 23-27.3-124.1(10), (11). Id. ¶ 39. This cease and desist order was responsive to a notice from the Rhode Island Department of Health issued on August 21, 2015, which stated that the cloriform was non-acute and requested that Four Corners post a sign and undertake remediation efforts. Id. Four Corners did as the Rhode Island Department of Health notice requested. Id. The Department of Health then informed Four Corners in early 2016 that the cloriform issues had been remediated. Id. ¶ 40. However, the Town did not withdraw its September 23, 2015 cease and desist order as Four Corners had requested. Id.

         Four Corners also alleged that, while working to design a new parking plan-which requires an acknowledgement of awareness by the Town-Hall has refused to provide the acknowledgement, incorrectly stating that Planning Board approval is required. Id. ¶ 42.

         On January 13, 2016, the Town though Hall, transmitted a "Final Notice of Violation" to Four Corners, citing RIDEM regulatory provisions and ordered Four Corners to "immediately cease and desist from any and all assembly use of the Premises." Notice of Violation, Jan. 13, 2016 (emphasis added). Hall sent another similar letter on January 20, 2016. Am. Verified Compl. ¶ 44. Attorney DeSisto's office informed Four Corners that only Wojcik has the authority to withdraw the NOVs. Id. ¶ 45. Thereafter, Four Corners contacted the Town on several occasions to insist that the 2011 and 2016 cease and desist orders be withdrawn. Id. ¶ 46. In April 2016, Attorney DeSisto's law office responded, mostly ignoring the requests. Id. ¶ 47. Attorney DeSisto has recused himself from this matter. Id.

         In June 2016, RIDEM issued a new Certificate of Conformance for the septic system servicing the Meeting House and the two nearby offices. Id. ¶ 48. The new Certificate of Conformance confirmed a legal occupancy of 100 seats for "assembly" use of the Meeting House; however, the Town has still not agreed to lift the cease and desist orders premised on the old Certificate of Conformance which stated that the occupancy of the Meeting House and office buildings was twenty-seven persons. See id. ¶ 48. The new certificate was transmitted to Hall along with a letter stating that there were legal and factual errors in the cease and desist orders. Id. ¶ 49. Nevertheless, Hall and Wojcik have stated that the Town is unequivocally determined to enforce the 2016 cease and desist orders except with respect to certain specified events that Four Corners has booked. Id. ¶ 51.


         Standard of Review

         Super. R. Civ. P. 56(c) provides that a court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as matter of law." Super. R. Civ. P. 56(c). "When 'ruling on a motion for summary judgment the [hearing] justice must consider affidavits and pleadings in the light most favorable to the opposing party, and only when it appears that no genuine issue of material fact is asserted can summary judgment be ordered.'" Multi-State Restoration, Inc. v. DWS Properties, LLC., 61 A.3d 414, 418 (R.I. 2013) (quoting O'Connor v. McKanna, 116 R.I. 627, 633, 359 A.2d 350, 353 (1976)). The nonmoving party "carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996). Accordingly, summary judgment is appropriate if the nonmoving party "'fails to make a showing sufficient to establish the existence of an element essential to that party's case.'" Beauregard v. Gouin, 66 A.3d 489, 493 (R.I. 2013) (quoting Lavoie v. Ne. Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007)). The mere existence of a factual dispute alone will not preclude summary judgment; rather, "'the requirement is that there be no genuine issue of material fact.'" Bucci v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d 1160, 1170 (R.I. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).




         Injunctive Relief

         Four Corners claims that it is summarily entitled to an order permanently enjoining Defendants from taking additional enforcement actions with respect to the three NOVs. Four Corners first asserts that the violation underlying the September 23, 2015 NOV has long since been remediated. As such, Four Corners contends that this Court should enjoin any further enforcement of the September 23, 2015 NOV. As it pertains to the March 29, 2011 and January 13, 2016 NOVs, Four Corners argues that this Court should enjoin further enforcement because they are expressly predicated upon a Certificate of Conformance which mistakenly lists the septic capacity as twenty-seven persons. Four Corners points out that it has secured a revised Certificate of Conformance stating that the septic capacity for Four Corners' septic system is 100 persons. In response, Defendants assert that Four Corners is not entitled to injunctive relief because it has not exhausted its administrative remedies-i.e., appealing the NOVs to the Town's zoning board of review under G.L. 1956 § 45-24-64.

         This Court first addresses Defendants' contention that Four Corners was obligated to exhaust its administrative remedies by appealing the NOVs to the zoning board of review because if Defendants are correct, then jurisdiction of this matter would divest to the zoning board of review.

         "'It is well settled that a plaintiff aggrieved by a state agency's action first must exhaust administrative remedies before bringing a claim in court.'" Bellevue-Ochre Point Neighborhood Ass'n v. Pres. Soc'y of Newport Cty., No. 2015-241-Appeal (NC 14-98), 2017 WL 75446, at *7 (R.I. Jan. 9, 2017) (quoting Richardson v. R.I. Dep't of Education, 947 A.2d 253, 259 (R.I. 2008)). "The doctrine 'aids judicial review by allowing the parties and the agency to develop the facts of the case, and . . . promotes judicial economy by avoiding needless repetition of administrative and judicial factfinding, perhaps avoiding the necessity of any judicial involvement.'" Bellevue-Ochre Point Neighborhood Ass'n, 2017 WL 75446, at *7 (quoting Doe ex rel. His Parents and Natural Guardians v. East Greenwich School Dep't, 899 A.2d 1258, 1266 (R.I. 2006)). However, Rhode Island Courts recognize "'an exception to the exhaustion requirement when exhaustion of administrative remedies would be futile.'" Bellevue-Ochre Point Neighborhood Ass'n, 2017 WL 75446, at *10 (quoting DeLuca v. City of Cranston, 22 A.3d 382, 385 (R.I. 2011) (mem.)). As recently noted by our Supreme Court, the futility exception to the exhaustion requirement exists in instances where the zoning board of review lacks authority to grant the relief sought by the appellant. See Bellevue-Ochre Point Neighborhood Ass'n, 2017 WL 75446, at *7; Frank Ansuini, Inc. v. City of Cranston, 107 R.I. 63, 73, 264 A.2d 910, 915 (1970). In addition, the futility exception applies when a plaintiff challenges the validity and enforceability of a zoning ordinance. See M.B.T. Construction Corp. v. Edwards, 528 A.2d 336, 338 (R.I. 1987).

         Thus, whether Four Corners was required to appeal the NOVs to the zoning board of review pivots on whether the zoning board of review had the authority to hear such appeals. "'[Z]oning boards are statutory bodies whose powers are legislatively delineated.'" Bellevue-Ochre Point Neighborhood Ass'n, 2017 WL 75446, at *6 (quoting Duffy v. Milder, 896 A.2d 27, 36 (R.I. 2006)). The jurisdiction of a zoning board is statutorily delineated in the Zoning Enabling Act, §§ 45-24-31 et seq. The Zoning Enabling Act mandates that:

         "A zoning ordinance adopted pursuant to this chapter shall provide that the zoning board of review shall:

"(1) Have the following powers and duties:
"(i) To hear and decide appeals * * * where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative officer or agency in the enforcement or interpretation of this chapter, or of any ordinance adopted pursuant hereto . . . ." Sec. 45-24-57 (emphasis added).

         Accordingly, the Tiverton Zoning Code provides that the zoning board of review's appellate jurisdiction is limited to instances "where it is alleged there is an error in any order, requirement, decision or determination made by the zoning officer in the enforcement of this ordinance." Tiverton Zoning Code, art. XV, ยง 3(a) (emphasis added). The Tiverton Zoning Code also provides that "[i]t shall be the duty of the zoning enforcement officer of the Town of Tiverton to administer and enforce the provisions of this ordinance, ...

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