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Mascola v. Town of Westerly

Superior Court of Rhode Island, Washington

August 27, 2018


          Gregory Massad, Esq. For Plaintiff:

          William J. Conley Jr., Esq. For Defendant:


          TAFT-CARTER, J.

         Before this Court is Defendant Town of Westerly's (the Town) Motion to Dismiss Plaintiff James A. Mascolo, in his capacity as Trustee of the James A. Mascolo Revocable Trust's (Plaintiff) Complaint, appealing the enactment of a Zoning Ordinance (the Ordinance) pursuant to Super. R. Civ. P. 12(b)(1) and 12(b)(6). The Town argues that the Court does not have subject matter jurisdiction over the instant matter because the Plaintiff failed to file his appeal in accordance with G.L. 1956 § 45-24-71(a); the Complaint failed to allege with specificity the way in which the Ordinance conflicts with the Town's Comprehensive Plan in accordance with § 45-24-71(b); that the Plaintiff lacked standing to allege the procedural due process claim because he waived the claim for defective notice of the public hearing and because he did not suffer an injury; that the Plaintiff's claim for substantive due process violation fails; and that the officials or employees of the Town are entitled to legislative immunity from claims arising under § 1983. Jurisdiction is pursuant to Super. R. Civ. P. 12.

         I. Facts and Travel

         This action arises out of the passage of a Zoning Ordinance by the Westerly Town Council on January 22, 2018. The Plaintiff appeals Chapter 1910 of the Town of Westerly Code of Ordinances entitled "An Ordinance in Amendment of Chapter 1439 of the General Ordinances of the Town of Westerly entitled 'Re-Enact and Re-Adopt Chapter 1242 entitled 'The Westerly, Rhode Island, Zoning Ordinance of 1998, as Amended.''" The Ordinance created an overlay district regulating airport hazards related to the Westerly State Airport and established the location and boundaries of the Airport Area Overlay District to provide a clear area, free of above-ground obstructions and any structures in the zone closest to each runway end at the Westerly Airport in order to enhance the protection of people and property on the ground. The Ordinance set forth "Confliction Areas," which are defined as "[t]hose areas identified within the Airport Area Overlay District where ground elevation plus the maximum height restriction under current zoning . . . is within the FAR Part 77 approach surface and conflicts with the regulated imaginary surfaces." (Westerly Zoning Ordinance § 260-51(D).) The Ordinance stated that "[t]he confliction area maps . . . are based on FAR Part 77 Surfaces designated on the Airport Layout Plan for the Westerly State Airport of July 2009 and the results of FAR Part 77 35' Height Analysis conducted by Stantec, engineering consultant for RIAC, for the Westerly Airport in July 2016." (Westerly Zoning Ordinance § 260-51(E)(2).)

         The Plaintiff is the owner of property located at 4 Eagle Court in the Town (the Property). The Property is in close proximity to the Westerly State Airport. The Ordinance designated the Plaintiff's property as being located in a Confliction Area near Runway 32 of the Airport and included the Property in the Overlay District.

         On September 29, 2017, the Westerly Planning Board issued a unanimous Advisory Opinion in favor of the Ordinance. (Advisory Op., Sept. 29, 2017.) In the Advisory Opinion, the Planning Board explained that it reviewed a version of the Ordinance on August 9, 2016, which was "revised based on research and efforts made by the Planning & Zoning Solicitor." Id. The Planning Board noted that the difference between the initial Ordinance and the revised ordinance was the removal of Zones B and C from the Zoning District. Id. The Advisory Opinion stated that the revised Ordinance "is consistent with the Comprehensive Plan, specifically Action Item 3.6, and that the proposed ordinance advances the purposes of zoning as defined in § 260-5 General Purposes of the Zoning Ordinance . . . ." Id.

         On November 21, 2017, Alan R. Andrade, Senior Vice President of Operations and Maintenance at the Rhode Island Airport Corporation (RIAC), issued a letter to the Town's Manager regarding the clearing of airspace obstructions surrounding the Airport. (RIAC letter, Nov. 21, 2017.) The letter addressed issues relating to an obstruction removal project by RIAC in order to meet the Federal Aviation Administration (FAA) requirements for safe approach surfaces at the Westerly State Airport. Id. The letter advised that "RIAC attempted to purchase avigation easements from the neighbors whose properties were identified to have obstructions in approach surface, but not all neighbors were willing to grant the easement." (RIAC letter at 2.) RIAC then requested the Rhode Island Department of Transportation (RIDOT) acquire these easements by eminent domain; however, a lawsuit was filed in the Rhode Island Superior Court challenging the State's authority to acquire avigation easements. Id. A preliminary injunction was temporarily granted restraining RIDOT from using its eminent domain authority to remove the obstructions until a full trial on the matter occurs. Id.

         The RIAC letter advised that rather than litigating with the Town neighbors, RIAC sought guidance from the elected officials as to "what utility the Town wants from the Airport." Id. The letter advised that RIAC was committed to working closely with the Town and that if the Town was able to come to an agreement with the neighbors for the clearing of obstructions, RIAC would work to secure funding from the FAA for the purchase of avigation easements. Id. at 3.

         On or about November 27, 2017, the Town sent a letter to individuals who own property in close proximity to the Airport notifying them of the December 18, 2017 meeting. The letter stated:

"Public Hearing will be held in the Council Chambers, Town Hall, Westerly, Rhode Island, on Monday, December 18, 2017 at 6:00 o'clock pm. . . . to consider the proposed ordinance, to amend the Zoning Ordinance and Zoning Map as summarized below:

         The Plaintiff alleges that he was neither sent notice of the hearing by certified mail nor did he receive a "map in the Notice showing the existing and proposed boundaries, zoning district boundaries, existing streets and roads and their names, and city and town boundaries…." (Compl. ¶¶ 17-18.)

         The Town Council held two public hearings on December 18, 2017 and January 22, 2018, both of which were attended by counsel for the Plaintiff, Gregory Massad (Attorney Massad). (Meeting Minutes, Dec. 18, 2017.) According to the December 18, 2017 meeting minutes, several citizens provided testimony and written letters in favor of and in opposition to the Ordinance at this hearing. Id. Attorney Massad spoke in opposition to the passage of the Ordinance on behalf of the Plaintiff at both hearings stating that the Ordinance was ill-advised and premature. Id. He argued that the inclusion of properties in the runway protection zone that are not presently affected was "reckless." Id. Additionally, Attorney Massad stated that the issue with the Ordinance not only involved the cutting of property owner's trees, but also constitutional protection of clients' properties. Id. Various citizens opposing the enactment of the Ordinance disapproved of the trimming of trees on their property. Id. The opponents were concerned that the effect of the Ordinance would result in the devaluing of their properties. Id. Alternatively, citizens in favor of the Ordinance testified that the airport brings in business to the surrounding area and that it is an asset to the community. Id.

         After the public forum, Town Councilors addressed Citizens' comments "relating to the airport, its economic impact, the fact that people bought homes within the vicinity of the airport, the displacement of thresholds, and the removal or cutting of trees." Id. Town Council Vice President Celico inquired whether the Town leadership is willing to reach an agreement with the neighbors for clearing of obstructions. Id. Vice President Celico noted that RIAC intended to work on securing grant funding from the FAA for the purchase of avigation easements at that time if an agreement were reached. Id. The Town Council unanimously voted to continue the hearing to January 22, 2018. Id. At the January 22, 2018 hearing, the Town Council voted to pass the proposed Ordinance by a vote of 6 to 1. (Meeting Minutes, Jan. 22, 2018.)

         The Plaintiff filed the instant action on February 22, 2018. The Plaintiff requested the Court to declare the Ordinance invalid for failure to comply with the notice requirements set out in § 45-24-71(a) and Chapter § 260-28D(2) of the Westerly Code, and for failure to bring the Ordinance into compliance with the Comprehensive Plan in accordance with § 45-24-71(b). Furthermore, the Plaintiff seeks a declaration that the Ordinance is unconstitutional as a deprivation of his procedural and substantive due process rights under § 1983. The Plaintiff also seeks a permanent injunction enjoining the Town from enforcing the Ordinance. Additionally, the Plaintiff seeks damages, reasonable attorney's fees, costs and other equitable relief that this Courts finds proper and just.

         The Court heard oral arguments on June 18, 2018 and now issues its Decision.

         II. Standard of Review

         It is well-settled in Rhode Island that the "sole function of a motion to dismiss is to test the sufficiency of the complaint." Multi-State Restoration, Inc. v. DWS Properties, LLC, 61 A.3d 414, 416 (R.I. 2013) (quoting Laurence v. Sollitto, 788 A.2d 455, 456 (R.I. 2002) (further quotation omitted)). "'When ruling on a Rule 12(b)(6) motion, the trial justice must look no further than the complaint, assume that all allegations in the complaint are true, and resolve any doubts in a plaintiff's favor.'" Estate of Sherman v. Almeida, 747 A.2d 470, 473 (R.I. 2000) (quoting R.I. Affiliate, Am. Civil Liberties Union, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I. 1989)).

         The Rhode Island Supreme Court held in Leone v. Mortg. Elec. Registration Sys., 101 A.3d 869 (R.I. 2014), "[w]hen ruling on a motion to dismiss, Rule 12(b) states if 'matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56' . . . when the [hearing] justice receives evidentiary matters outside the complaint and does not expressly exclude them in passing on the motion, then Rule 12(b)(6) specifically requires the motion to be ...

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