FEDERAL HILL CAPITAL, LLC, CHRISTOPHER MUSACCHIO, ALEJANDRO AMAYA, WILLIAM SMITH, and COREY KOSSIN, Plaintiffs,
CITY OF PROVIDENCE, by and through its Treasurer, James Lombardi, JORGE ELORZA, in his official capacity as Mayor of Providence, and JEFFREY L. LYKINS, in his official capacity as Director of the Providence Department of Inspection and Standards, Defendants.
Plaintiff: Jeffrey L. Levy, Esq.
Defendant: Megan K. DiSanto, Esq.
the Court are Cross-Motions for Summary Judgment filed
pursuant to Rule 56 of the Rhode Island Superior Court Rules
of Civil Procedure (Rule 56) by the City of Providence, by
and through its Treasurer James Lombardi, Jorge Elorza, in
his official capacity as Mayor of the City of Providence, and
Jeffrey L. Lykins, in his official capacity as Director of
the Providence Department of Inspection and Standards
(collectively Defendants, City) and the Plaintiffs, Federal
Hill Capital, LLC, Christopher Musacchio, Alejandro Amaya,
William Smith, and Corey Kossin (collectively Plaintiffs).
The motions are in response to a Complaint filed by
Plaintiffs in which they seek a declaratory judgment pursuant
to the Uniform Declaratory Judgments Act (UDJA), G.L. 1956
§§ 9-30-1 et seq., with respect to the
constitutionality of an amendment made to Providence Zoning
Ordinance 2015-47, No. 455. Specifically, Plaintiffs seek a
declaration that the particular provision violates article I,
section 2 of the Rhode Island Constitution.
Facts and Travel
September 18, 2015, the City enacted an amendment to
Providence Zoning Ordinance 2015-47, No. 455, which regulates
the use of single-family homes in Providence's R-1A and
R-1 (residential) zoning districts. This amendment was
enacted in response to residents' concerns about the
"changing nature of neighborhoods in proximity to the
City's colleges and universities, in particular the
Elmhurst neighborhood near Providence
College." Specifically, the amendment expressly
provides that "[i]n the R-1A and R-1 districts, a
single-family dwelling, that is non-owner occupied, shall not
be occupied by more than three college students, " who
are defined as "individual[s] enrolled as . . .
undergraduate or graduate student[s] at any university or
college educational institution who commute[s] to a
campus." (City's Mem. at 8, Ex. A.) The amendment
only applies to single-family dwellings located in just two
of Providence's twenty zoning districts. These two
districts are the City's lowest density districts in
which few non-residential uses are allowed.
February 23, 2016, Plaintiffs, a real estate investment
company and four college students who live in a single-family
dwelling in an R-1 district, brought a constitutional
challenge to the amendment based on the due process and equal
protection clauses of article I, section 2 of the Rhode
Island Constitution. Plaintiff Federal Hill Capital, LLC,
owns a single-family home at 15 Oakdale Street in Providence
that was leased to the four college student
Plaintiffs. The Oakdale Street property is located in
an R-1 zoning district. The City now moves for summary
judgment arguing that the amendment is constitutionally
sound. In response, Plaintiffs have cross-motioned for
declaratory judgment '"is neither an action at law
nor a suit in equity but a novel statutory proceeding . .
."' N. Trust Co. v. Zoning Bd. of Review of
Westerly, 899 A.2d 517, 520 n.6 (R.I. 2006) (quoting
Newport Amusement Co. v. Maher, 92 R.I. 51, 53, 166
A.2d 216, 217 (1960)). The purpose of the UDJA is "to
allow the trial justice to 'facilitate the termination of
controversies.'" Bradford Assocs. v. R.I. Div.
of Purchases, 772 A.2d 485, 489 (R.I. 2001) (citations
omitted). Thus, the UDJA grants broad jurisdiction to the
Superior Court to "declare rights, status, and other
legal relations whether or not further relief is or could be
claimed." Section 9-30-1.
deciding a motion for summary judgment, the trial justice
must always keep in mind that it is a "drastic remedy
and should be cautiously applied." Steinberg v.
State, 427 A.2d 338, 339-40 (R.I. 1981). Summary
judgment is appropriate when viewing the facts and all
reasonable inferences therefrom in the light most favorable
to the nonmoving party, the Court determines that there are
no issues of material fact in dispute. Quest Diagnostics,
LLC v. Pinnacle Consortium of Higher Educ., 93 A.3d 949,
951 (R.I. 2014). However, only when the facts reliably and
indisputably point to a single permissible inference can this
process be treated as a matter of law. Steinberg,
427 A.2d at 340.
party who opposes the motion for summary judgment 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). In a motion
for summary judgment, the moving party bears the initial
burden of establishing the absence of a genuine issue of
fact. The burden then shifts and the nonmoving party has an
affirmative duty to demonstrate a genuine issue of fact.
McGovern v. Bank of Am., N.A., 91 A.3d 853, 858
regard to issues concerning the interpretation of an
ordinance, it is well established that Rhode Island courts
employ the same rules of construction as they do when
interpreting a statute. Ruggiero v. City of
Providence, 893 A.2d 235, 237 (R.I. 2006); Pierce v.
Providence Ret. Bd., 15 A.3d 957, 963 (R.I. 2011). If an
ordinance is unambiguous "it should be enforced as
written, with the words of the ordinance being given their
plain and ordinary meaning." State ex. rel. City of
Providence v. Auger, 44 A.3d 1218, 1226 (R.I. 2012).
Moreover, when faced with a constitutional challenge to a
statute or ordinance, the Court must "begin with a
presumption that the enactment is constitutional."
Id.; State v. Russell, 890 A.2d 453, 458 (R.I.
2006). "This [C]ourt will attach every reasonable
intendment in favor of . . . constitutionality in order to
preserve the statute." Gem Plumbing & Heating
Co. v. Rossi, 867 A.2d 796, 808 (R.I. 2005) (citation
omitted). The party contesting the constitutionality of the
ordinance bears the '"burden of proving beyond a
reasonable doubt that the challenged enactment is
unconstitutional."' Auger, 44 A.3d at 1226
(quoting State ex rel. Town of Westerly v. Bradley,
877 A.2d 601, 605 (R.I. 2005)).
support of their competing motions, both parties submit that
the sole issue before the Court concerns the
constitutionality of the zoning ordinance amendment. The
parties maintain that before making this determination, the
Court must first establish the appropriate level of review to
be applied and then determine whether the amendment is
consistent with equal protection and due process
requirements. In that the substantive due process and equal
protection arguments are inextricably intertwined, only a
single analysis is required. Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456, 470 (1981) (if statute does
not violate equal protection it does not violate due
process); Montalvo-Huertas v. Rivera-Cruz, 885 F.2d
971, 976 n.7 (1st Cir. 1989) (type and kind of
scrutiny applied no different under either substantive due
process or equal protection theory).
Article I, Section 2
the Fourteenth Amendment of the United States Constitution,
article I, section 2 of the Rhode Island Constitution
provides, in pertinent part, that no person shall be
"deprived of life, liberty or property without due
process of law, nor shall any person be denied equal
protection of the laws." R.I. Const. art. I, § 2.
See also, R.I. Insurers' Insolvency Fund v. Leviton
Mfg. Co., 716 A.2d 730, 734 (R.I. 1998) (Rhode Island
and federal equal protection clauses provide similar
protections). Nevertheless, our Supreme Court has routinely
held that "not all legislative classifications are
impermissible." Boucher v. Sayeed, 459 A.2d 87,
91 (R.I. 1983). Indeed, the legislature is permitted "a
wide scope of discretion in enacting laws which affect some
groups of citizens differently from others."
Burrillville Racing Ass'n v. State, 118 R.I.
154, 157, 372 A.2d 979, 981-82 (1977). In so doing, the state
may choose to create stronger constitutional protections than
those afforded by the United States Constitution; however, it
is rare that Rhode Island has departed from federal precedent
and established greater protections. See Moreau v.
Flanders, 15 A.3d 565, 588 (R.I. 2011); State v.
Bjerke, 697 A.2d 1069, 1073 (R.I. 1997).
Equal Protection Clause of article I, section 2 of the Rhode
Island Constitution mandates that '"[n]o otherwise
qualified person shall, solely by reason of race, gender or
handicap be subject to discrimination by the state, [or] its
agents * * *, " thereby prohibiting any law that treats
one class of persons less favorably than others who are
similarly situated. See Kleczek v. R.I. Interscholastic
League, Inc., 612 A.2d 734 (R.I. 1992). It does not,
however, '"demand that a statute necessarily apply
equally to all persons. * * * '[Or] require [that] things
which are different in fact * * * to be treated in law as
though they were the same.'" Id. at 737
(quoting Rinaldi v. Yeager, 384 U.S. 305, 309
(1966)). Indeed, "the Equal Protection Clause is
violated 'only if the [legislative] classification rests
on grounds wholly irrelevant to the achievement of the
State's objective. * * * A statutory discrimination will
not be set aside if any state of facts reasonably may be
conceived to justify it.'" Mackie v. State,
936 A.2d 588, 596 (R.I. 2007) (quoting McGowan v.
Maryland, 366 U.S. 420, 425-26 (1961)).
respect to substantive due process, the government is
proscribed from acting in an arbitrary or capricious fashion,
even if the procedures through which the action is taken are
"constitutionally adequate." Brunelle v. Town
of S. Kingstown, 700 A.2d 1075, 1084 (R.I. 1997)
(quoting Sinaloa Lake Owners Ass'n v. City of Simi
Valley, 882 F.2d 1398, 1407 (9th Cir. 1989)).
"To establish a violation of substantive due process,
the Plaintiffs must prove that the government's action
was 'clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or
general welfare'" Id. (quoting Sinaloa
Lake Owners, 882 F.2d at 1407). And finally, because
article I, section 2 of the Rhode Island Constitution is
parallel to the Fourteenth Amendment of the United States
Constitution, the Court conducts a "hybrid
analysis" when asked to "calibrate the applicable
sections of [an] act . . . against the due-process and
equal-protection guarantees of both the federal and state
constitutions[, ]" reflective of "the autonomous
character of each ...