, , , ,

Rhode Island Lawyers Weekly / Zoning: Quarry – Hearing

By Tom Egan

April 23, 2015


Where plaintiff neighbors of a quarrying operation have alleged that the defendant town of Westerly prevented them from voicing their concerns at a public hearing about the quarry, the count against the town must be dismissed for lack of injury.

The plaintiffs will be permitted to amend their complaint to add a codefendant and to add claims for negligent and intentional infliction of emotional distress. The motion to amend must be denied, however, to the extent that it seeks to clarify a due process claim against the town.



“On November 2, 2012, Westerly’s Zoning Official, Elizabeth Burdick, issued a revised Notice of Violation and Cease and Desist Order (NOV) to Copar and Westerly Granite, determining quarrying operations had been abandoned in the area known as the ‘Lucey Property.’ The NOV was based on Copar’s expansion of the pre-existing and approved use of processing rock outside the ‘processing area,’ and the repeated nuisance complaints by the neighbors, documentary evidence, and site inspections. Subsequently, Westerly’s Special Zoning Officer issued another Notice of Violation and Cease and Desist Order regarding the entire Property on February 12, 2013 (NOV II). Copar and Westerly Granite filed timely appeals to Westerly’s Zoning Board of Review.


“In February of 2013, public hearings were held — but were not completed — regarding the first NOV, pursuant to G.L. 1956 §45-24-66. During this time, Westerly Granite and Copar filed a Complaint against Westerly, WB-2013-0136, arguing that the quarrying operations at the Property constitute a legal nonconforming use. On November 12, 2013, Copar and Westerly Granite filed a motion for injunctive relief to preclude Westerly’s Zoning Board of Review from continuing to hold the appeal hearings due to alleged bias of certain members of the board. This Court issued an Order temporarily enjoining Westerly’s Zoning Board of Review from proceeding with the appeal hearings. On November 19, 2013, Westerly filed a motion seeking to invoke the jurisdiction of the Court to exclusively decide the underlying NOV and NOV II matters. Pursuant to §§45-24-60, 62, and G.L. 1956 §9-30-1, this Court granted Westerly’s motion to exercise jurisdiction over the NOV appeals, resulting in both appeals being withdrawn from the Westerly Zoning Board of Review.


“While these appeals were pending before this Court, Westerly’s Zoning Official issued a new Notice of Violation and Cease and Desist Order (NOV III) to Copar and Westerly Granite on November 27, 2013. The NOV III alleged that certain quarrying operations were not permitted on the Property, and that excessive noise and fugitive dust were emanating from the Property. On December 30, 2013, Westerly petitioned this Court to take jurisdiction over the NOV III appeal. Westerly’s motion was granted, and this Court took jurisdiction over the NOV III appeal. …


“… The Second Amended Complaint set forth a claim against Westerly, alleging that Westerly failed to hold any public hearings on the appeals of the previously appealed NOVs as required by §§45-24-64 and 45-24-66. The Plaintiffs allege that by invoking the Court’s jurisdiction, Westerly prejudiced the Plaintiffs by preventing them from being able to voice their concerns, raise arguments, and present evidence at a public hearing.”



“… The Plaintiffs’ additional claims — Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress — stem from the same set of facts set forth in the Plaintiffs’ Second Amended Complaint. Also, it is alleged that Armetta LLC has financial control over the Property and is therefore liable to the Plaintiffs for the harm suffered.


“… Therefore, the Plaintiffs’ motion for leave is granted as it pertains to adding two additional claims and Armetta LLC as a defendant. …


“The Plaintiffs also request leave to amend its claim against Westerly. The Plaintiffs seek to clarify their claim against Westerly by alleging a violation of their substantive and procedural due process rights as protected under 42 U.S.C. §1983. Westerly contends that leave should be denied because there was no violation of the Plaintiffs’ protected rights when it petitioned the Court to exercise jurisdiction over the NOV appeals. …


“Here, the Plaintiffs contend they have protected rights under the Fourteenth Amendment through their ownership of real property. … Further, the Plaintiffs argue to have the right to be heard at Westerly’s Zoning Board of Review regarding the NOV appeals. The Plaintiffs rely on §45-24-66, which states a public hearing must be held for any appeal of a decision from a zoning officer. Specifically, this provision provides that ‘[t]he zoning board of review … shall give public notice [for the hearing on appeal] … any party may appear in person or by agent or by attorney.’ … The Plaintiffs contend that by petitioning this Court to exercise jurisdiction over the NOV appeals, and by entering into the Consent Agreement, Westerly deprived them of their right to testify at a public hearing and further failed to perform its administrative role as the licensing and enforcement agency. Conversely, Westerly argues that seeking judicial assistance over the NOV appeals does not amount to a violation of the Plaintiffs’ protected rights.


“In this case, Plaintiffs’ argument is misguided. If the NOV appeals were heard only before Westerly’s Zoning Board of Review, then the Plaintiffs would certainly be entitled to testify at the hearing. See id. If the Plaintiffs were prevented from speaking in front of the Westerly Zoning Board of Review, then a viable due process violation claim would surely exist. …


“Here, Westerly’s decision to petition the Court to exercise jurisdiction over the NOV appeals was in response to Copar and Westerly Granite’s motion for injunctive relief, not an attempt to abort administrative review and infringe upon the rights of the Plaintiffs. Westerly has the statutory right to take such action and, once this Court exercises jurisdiction, a public hearing under §45-24-66 is no longer necessary. … There is no provision limiting when a municipality may seek judicial review. Accordingly, Westerly’s decision does not violate any protectable property interest of the Plaintiffs. Further, by this Court invoking jurisdiction over these matters, the Plaintiffs still possessed the ability to raise its concerns regarding the quarry, albeit in a different setting. The Plaintiffs were allowed to intervene in the then pending matters before this Court. Although allowed to intervene only for the limited purpose of discovery, they were able to voice their objections to the Consent Agreement and were able to file an appeal with the Supreme Court.


“… The decision of Westerly to seek judicial assistance, viewed on its own, does not establish a due process violation claim. The right to testify at a public hearing under §45-24-66 was relinquished after the Court took jurisdiction and the appeals were withdrawn from the Westerly Zoning Board of Review. … Therefore, this Court finds that leave to amend Count I would be futile, since it would fail to sustain a claim that Westerly violated the Plaintiffs’ due process rights.”



“The Plaintiffs allege that Westerly violated their constitutional rights when it failed to hold a public hearing regarding the NOV appeals, as required by §§45-24-64 and 45-24-66. As a result, the Plaintiffs claim that they were prevented from voicing their concerns, presenting facts and evidence, and raising arguments at a public hearing. However, the Complaint fails to demonstrate how Westerly’s actions have injured the Plaintiffs. It is impossible for this Court to determine what the result would have been had the Plaintiffs testified at a public hearing, and accordingly, any damages alleged to have been suffered are conjectural and speculative. … This Court is not satisfied that the Plaintiffs can demonstrate that they have suffered an injury in fact as a result of Westerly’s decision to seek judicial assistance and to settle the case with Copar and Westerly Granite. … Here, Westerly petitioned this Court to exercise jurisdiction — which it did — and enter into a Consent Agreement over the objection of the Plaintiffs. This action alone does not support a constitutional violations claim. Although disfavored by the Plaintiffs, Westerly has the exclusive right to take such action.  …


“… Even though the Zoning Enabling Act creates a right to testify at a public hearing, such a right is not infinite and is subject to the other provisions of this chapter. … By invoking the jurisdiction of this Court, §45-24-66 was no longer controlling. The Plaintiffs have failed to demonstrate that Westerly acted with an improper purpose or attempted to stifle the Plaintiffs’ voice in this matter when it sought judicial assistance. Westerly possesses the right to seek judicial aid and to settle disputes. … This conduct does not support a viable constitutional violation claim.


“Also, the Plaintiffs have not demonstrated that they have suffered a particular injury. Although they were unable to testify at a public hearing, the Plaintiffs were granted the right to intervene. There was no violation of their rights even though a Consent Agreement was entered into, over their objection, since the Plaintiffs could still file an appeal. … At every point in this case, the Plaintiffs were afforded an opportunity to participate. Although the Plaintiffs may be unhappy that it could not raise its arguments before the matter was resolved by the Consent Agreement, it does not support a cause of action against Westerly.


“Furthermore, this Court does not believe the Plaintiffs have demonstrated a personalized injury. The Plaintiffs’ alleged injury stems from the discontinuance of public hearings at the Westerly Zoning Board of Review. Failing to hold a public hearing on a zoning appeal prevents citizens from voicing their concerns. In this case, the Plaintiffs have not distinguished how their alleged injury is distinct from that of the community at large. As a result, the Plaintiffs have not demonstrated the requisite standing. …”


Balbat, et al. v. Copar Quarries of Westerly, LLC, et al. (Lawyers Weekly No. 61-050-15) (15 pages) (Stern, J.) (Washington Superior Court) Michael A. Kelly, Joelle C. Rocha and Michael P. Lynch for the plaintiffs; Richard A. Boren, Mark P. Dolan, Christopher M. Mulhearn, Krista J. Schmitz, Adam C. Benevides and Brian C. Newberry for the defendants (C.A. No. WC-2012-0004) (April 21, 2015).