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Town of Exeter v. State

Superior Court of Rhode Island, Providence

December 15, 2017

TOWN OF EXETER, By And Through Its Solicitor, James P. Marusak
v.
THE STATE OF RHODE ISLAND; MICHAEL DiBIASE, IN HIS CAPACITY AS DIRECTOR OF THE DEPARTMENT OFADMINISTRATION; and JANET COIT, IN HER CAPACITY AS DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT TOWN OF RICHMOND, RHODE ISLAND
v.
THE STATE OF RHODE ISLAND and JANET COIT, in her capacity as Director of the R.I. Department of Environmental Management

          For Plaintiff: Karen R. Ellsworth, Esq.

          For Defendant: Michael W. Field, Esq.; Tricia A. Quest, Esq.; Sean Lyness, Esq.; Michael L. Rubin, Esq.

          DECISION

          LICHT, J.

         In these consolidated cases, the Towns of Exeter and Richmond (hereinafter the Plaintiffs or the Towns) have moved for a preliminary injunction and the Rhode Island Department of Environmental Management (hereinafter the Defendant, the State, or RIDEM) has objected thereto. Plaintiffs filed the instant action seeking to enjoin the Defendant from proceeding with a proposed development plan without first following the procedures and substance of their respective Town's land use ordinances.

         I

         FACTS & TRAVEL

         RIDEM plans to construct a 12, 716 square-foot building, which will be known as the Arcadia Natural Resources and Visitors Center (hereinafter the ANRVC). (Ex. A-5 of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.) The ANRVC, among other things, will feature a laboratory, public restrooms, administrative offices, conference space, a natural history display area, and a visitors' center. Id. The building will be set 145 feet back from Browning Mill Pond and 50 feet back from Arcadia Road. Id. The ANRVC is designed to "serve as a public gateway to the State's 14, 000-acre Arcadia Management Area." Id. The entire footprint of the proposed building is located in Richmond, while only a parking lot and onsite wastewater treatment system will be located in the Town of Exeter. (Ex. 17 of Def.'s Mem. in Obj. to Pls.' Mot. for Injunctive Relief.)

         The Towns claim that RIDEM started to plan construction of the ANRVC in 2014, but never notified the Town Council for either Town of these plans. (Pls.' Mem. in Supp. of Mot. for Injunctive Relief 2.) Instead, the Towns allege that they were not made aware of the proposed facilities until late January or early February of 2017, when concerned citizens brought the development to their attention. On February 16, 2017, after learning about the proposed facility, Exeter Town Council President Kevin McGovern sent a Cease and Desist Order to RIDEM, the Department of Administration, and the Department of Attorney General. (Ex. B of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.)

         RIDEM paints a slightly different picture of how these events unfolded. According to RIDEM's version of events, on May 30, 2014, RIDEM provided the Towns with the initial site plans for the ANRVC as well as an Insignificant Alteration Permit from RIDEM's Office of Freshwater Wetlands. (Ex. 2 of Def.'s Mem. in Obj. to Pls.' Mot. for Injunctive Relief.) On February 13, 2015, RIDEM forwarded the Town of Exeter a copy of the ANRVC's Onsite Wastewater Treatment System Construction Permit. (Ex. 3 of Def.'s Mem. in Obj. to Pls.' Mot. for Injunctive Relief.)

         On November 3, 2015, William Burgin, an architect for RIDEM, forwarded the project engineering drawings to the building officials from both Towns and offered to meet with the building officials to review the drawings and answer any potential questions. (Exs. 4 and 5 of Def.'s Mem. in Obj. to Pls.' Mot. for Injunctive Relief.) On November 3, 2015, Richmond Building Official Loren Grengarella provided a letter of project awareness to RIDEM. (Ex. 6 of Def.'s Mem. in Obj. to Pls.' Mot. for Injunctive Relief.) That letter read, in pertinent part, "I have been apprised of the applicant's intention to make physical changes on Arcadia Road, Hope Valley, for the construction of a visitor center and new office building." Id. In turn, on December 2, 2015, Ronald DeFrancesco, an Exeter Building Official, also provided RIDEM with an identical letter of project awareness. (Ex. 7 of Def.'s Mem. in Obj. to Pls.' Mot. for Injunctive Relief.)

         RIDEM continued to move forward with planning the ANRVC project by posting the plans and specifications of the project on the State of Rhode Island Division of Purchases website with a bid proposal submission deadline of March 7, 2016. (Ex. 10 of Def.'s Mem. in Obj. to Pls.' Mot. for Injunctive Relief.) On January 20, 2017, RIDEM and Mill City Construction, Inc. entered into a contract pertaining to the construction of the ANRVC. (Ex. 11 of Def.'s Mem. in Obj. to Pls.' Mot. for Injunctive Relief.) RIDEM thereafter received the previously discussed Cease and Desist Order dated February 16, 2017 from Exeter Town Council President Kevin McGovern. (Ex. B of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.) A public meeting, attended by members of the public from both Towns, as well as members of both Town Councils, was held in the Town of Richmond on March 9, 2017. (Ex. 13 of Def.'s Mem. in Obj. to Pls.' Mot. for Injunctive Relief.)

         The Town of Exeter points to a number of Exeter zoning ordinances that it believes will be violated by this project. However, in reality, the fact that the ANRVC may not comply with Exeter zoning may be irrelevant, because the building itself is located entirely in the Town of Richmond. The Town of Exeter has not pointed to a single zoning violation that will stem from development of the parking lot and onsite wastewater treatment system, which will be located in the Town of Exeter. Nevertheless, the Court sets forth the provisions that the Town of Exeter has contended are violated, but need not decide whether any landowner whose property is in two towns must satisfy the zoning requirements of both towns for the entire project.

         The alleged violations begin with the fact that the project site is located in the Open Space and Public Land (OSPL) zoning district in Exeter. According to Section 2.1.8 of the zoning ordinance, the purpose of the OSPL zoning district is to "identify state lands and other lands held for recreation, conservation and public access purposes and to afford future protection against the conversion of these lands to another use inconsistent with that now in existence . . . ." (Ex. E-1 of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.)

         A number of RIDEM's intended uses for the property are not permitted in the OSPL zoning district and others are permitted only with a special use permit approved by the Zoning Board of Review. For example, "[s]cientific and research laboratories" are prohibited, while "[g]overnment buildings and uses" as well as "[s]tructures to accommodate business and professional offices" are both allowed only by special use permit. (Ex. E-2 of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.)

         In addition, RIDEM's plan is to build the ANRVC about 50 feet back from Arcadia Road. (Ex. A-5 of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.) This appears to be non-compliant with the dimensional regulations of the Exeter zoning ordinance, which requires a minimum 200-foot front yard depth in the OSPL zoning district. (Ex. E-3 of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.) Lastly, the Exeter Zoning Ordinance requires development plan review for all permitted uses other than one-family and two-family dwellings or accessory buildings. (Ex. F of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.)

         Turning now to the Town of Richmond, where the majority of the construction is to take place, the site of the proposed construction is located in the R-3 zoning district. (Pls.' Mem. in Supp. of Mot. for Injunctive Relief 4.) Permitted uses in this district are limited to "low density residential uses not to exceed a density of one dwelling unit per three acres and, by special use permit, low intensity non-residential uses that meet performance standards with regard to groundwater protection." (Ex. J of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.) Professional Offices as well as indoor or outdoor recreational facilities are prohibited in the R-3 zoning district. (Ex. K of Pls.' Mem. in Supp. of Mot. for Injunctive Relief.) Similar to Exeter, Richmond may also require development plan review as well as a use variance from the Zoning Board of Review.

         The Town of Exeter filed its lawsuit against RIDEM on April 6, 2017. Subsequently, the Town of Richmond also filed suit against RIDEM on April 12, 2017. Thereafter, these suits were consolidated. The Towns now move this Court for preliminary injunctive relief.

         II

         STANDARD OF REVIEW

         In deciding whether to issue a preliminary injunction, the "hearing justice should determine whether the moving party (1) has a reasonable likelihood of success on the merits, (2) will suffer irreparable harm without the requested injunctive relief, (3) has the balance of the equities, including the possible hardships to each party and to the public interest, tip in its favor, and (4) has shown that the issuance of a preliminary injunction will preserve the status quo." Iggy's Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I. 1999) (citing Fund for Cmty. Progress v. United Way of Se. New England, 695 A.2d 517, 521 (R.I. 1997)). A certainty of success is not required; rather, only a prima facie case need be shown. Fund for Cmty. Progress, 695 A.2d at 521 (citing Coolbeth v. Berberian, 112 R.I. 558, 564-66, 313 A.2d 656, 660 (1974)). Further, "[a]n application for such temporary ...


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