JAMES A. MASCOLA, IN HIS CAPACITY AS TRUSTEE OF THE JAMES A. MASCOLO REVOCABLE TRUST
v.
TOWN OF WESTERLY
Gregory Massad, Esq. For Plaintiff:
William J. Conley Jr., Esq. For Defendant:
DECISION
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:
"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 1988, AS
AMENDED.''" (Compl. ¶ 9.)
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 ...