County Superior Court
Plaintiff: William M. Dolan III, Esq.; Nicholas L. Nybo, Esq.
Defendant: Patrick J. Dougherty, Esq.; Michael DeSisto, Esq.
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).
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.
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.
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.
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.
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.
March 29, 2011 NOV concluded with the signature of the
then-Building/Zoning Official, Gareth Eames (Eames).
See Notice of Violation, Mar. 29, 2011.
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.
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.
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
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.
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.
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.
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.
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.
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)).
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.
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.
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).
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:
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).
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, § 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