Opinion
CA No. WC-2019-0015
05-29-2020
Katherine A. Archer, Amanda L. Bentley, Justin P. Bentley, Carol A. Brough, Daniel J. Brough, Deborah H. Colucci, Lynn V. Lapierre, Dorsey K. Wellman and Susan H. Wellman, Cheryl E. Reynolds and Bruce D. Reynolds, Martin Sheldon and Lucinda A. Sheldon, formerly known as, Lucinda A. McGee, Plaintiffs, v. Town of Hopkinton, a Rhode Island Municipal Corporation, the Hopkinton Town Council, Frank T. Landolfi, Thomas E. Buck, Sylvia K. Thompson, David F. Husband and Barbara A. Capalbo, in their official capacities only, as Members of the Town Council of the Town of Hopkinton, Rhode Island, Rhode Island Solar Renewable Energy, LLC, a defunct Rhode Island Limited Liability Company, Anthony J. DelVicario, formerly the Manager of Rhode Island Solar Renewable Energy, LLC and Maxson Hill, LLC, a Rhode Island Limited Liability Company, Defendants.
ATTORNEYS: For Plaintiff: James A. Donnelly, Esq. For Defendant: Kevin McAllister, Esq.; John O. Mancini, Esq.
DECISION TAFT-CARTER , J. The Solar Energy Defendants and Town Defendants (Defendants) present Motions for Summary Judgment pursuant to Super. R. Civ. P. 56 in response to an action for declaratory judgment from Plaintiffs challenging the passage of two zoning ordinance amendments. These amendments permitted Defendants to begin constructing a solar panel array in an area previously zoned as residential. Plaintiffs objected to Defendants' motions for summary judgment. This Court exercises jurisdiction pursuant to G.L. 1956 § 9-30-1.
Defendants Rhode Island Solar Renewable Energy, LLC, Anthony J. DelVicario, and Maxson Hill, LLC (collectively, the "Solar Energy Defendants").
The Town of Hopkinton and Members of the Town Council of the Town of Hopkinton: Frank T. Landolfi, Thomas E. Buck, Sylvia K. Thompson, David F. Husband and Barbara A. Capalbo (collectively, the "Town Defendants").
I
Facts and Travel
Plaintiffs are thirteen residents of Hopkinton, Rhode Island (the Town) who brought an action under the Uniform Declaratory Judgments Act (UDJA), §§ 9-30-1 et seq., regarding the passage of two zoning ordinance amendments to permit the construction of a solar farm. On January 29, 2018, the Hopkinton Town Council (the Council) gave duly advertised notice of a public hearing regarding an application by the Solar Energy Defendants to amend the zoning map and comprehensive map plan to change property located at 310 Main Street from RFR-80 residential zoning to a "Commercial Special" designation, limiting the use to installation of a solar array and collection of solar energy. (Pls.' Mem. Supp. Obj. to Def. Developers' Mot. Summ. J. (Pls.' Obj.) Ex. 2, Public Notice.)
Katherine A. Archer, Amanda L. Bentley, Justin P. Bentley, Daniel J. Brough, Carol A. Brough, Deborah H. Colucci, Lynn V. Lapierre, Dorsey K. Wellman and Susan H. Wellman, Cheryl E. Reynolds and Bruce D. Reynolds, Martin Sheldon and Lucinda A. Sheldon (Plaintiffs).
The initial hearing on the application was held on February 20, 2018. (Compl. Ex. M, Town Council Meeting Minutes, Feb. 20, 2018.) At that hearing, the matter was continued until March 19, 2018 because the Hopkinton Town Planning Board (Planning Board) had not yet rendered an advisory opinion. Id.at 3. On March 14, 2018, the Planning Board issued a unanimous opinion opposing the proposed amendments. (Compl. Ex. S, Planning Board Advisory Opinion.) The Planning Board found that the environmental concerns to the property outweighed the potential economic benefits of a solar farm. Id.
At the continued hearing on March 19, 2018, the Council set a date of May 7, 2018 to render a decision on the application. (Compl. Ex. U, Town Council Meeting Minutes at 3, Mar. 19, 2018.) On May 21, 2018, the Council voted 3-2 to pass the two amendments. (Compl. Ex. X, Town Council Meeting Minutes at 12, May 21, 2018.) Chapter 259 in the Hopkinton Code of Ordinances amended the Town's Future Land Use Map of the Comprehensive Plan of the Town of Hopkinton, changing the designation of the Property from RFR-80 to "Commercial" with restrictions limiting use of the Property to a solar energy system. (Pls.' Obj. Ex. 3, Hopkinton Code of Ordinances ch. 259, § 1.) Chapter 260 in the Hopkinton Code of Ordinances amended the Town of Hopkinton Zoning Map, making the same change to the Property. (Pls.' Obj. Ex. 4, Hopkinton Code of Ordinances ch. 260, § 1.)
Plaintiffs state that at the May 7, 2018 Council meeting, the Council continued the decision date until May 28, 2018 in order to review the transcript from the March 19, 2018 public hearing. However, the record is absent of any minutes or documentation regarding the May 7, 2018 meeting.
Plaintiffs filed this action for declaratory and injunctive relief on January 9, 2019, contending that the Council acted unlawfully in passing the zoning ordinance amendments and seeking to enjoin the Solar Energy Defendants from starting construction on a solar panel array at the Property. Specifically, Plaintiffs allege that the Town Defendants were required to pass the amendments with a supermajority vote due to the adverse opinion by the Planning Board; that the Town Defendants failed to properly provide notice for the continued hearing dates; and that these and other procedural inadequacies rendered the passage of the zoning ordinance amendments unlawful.
The Solar Energy Defendants filed their Motion for Summary Judgment on November 18, 2019, and the Town Defendants filed their Motion for Summary Judgment on January 28, 2020. These motions for summary judgment argue that Plaintiffs lack standing to bring a declaratory judgment action and that Defendants can prevail on the merits of the case because the Council acted lawfully in passing the two amendments. The Solar Energy Defendants further contend that injunctive relief is improper because they have already received a building permit to construct the solar array, and Plaintiffs cannot meet the requisite elements to obtain an injunction.
Plaintiffs filed their objection on March 9, 2020. On May 12, 2020, the parties entered into a consent order agreeing to waive oral argument on the summary judgment motions and permitting the Court to enter a judgment on the pleadings.
II
Standard of Review
This Court will grant summary judgment "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, and the moving party is entitled to judgment as a matter of law." Delta Airlines, Inc. v. Neary, 785 A.2d 1123, 1126 (R.I. 2001); Super. R. Civ. P. 56. '"Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously."' DeMaio v. Ciccone, 59 A.3d 125, 129 (R.I. 2013) (quoting Estate of Giuliano v. Giuliano, 949 A.2d 386, 390 (R.I. 2008)). As such, "only if the case is legally dead on arrival should the court take the drastic step of administering last rites by granting summary judgment." Mitchell v. Mitchell, 756 A.2d 179, 185 (R.I. 2000). In its analysis, the Court will view the evidence in "a light most favorable to the party opposing the motion." Industrial National Bank v. Peloso, 121 R.I. 305, 307, 397 A.2d 1312, 1313 (1979).
The moving party bears the initial burden of establishing there are no genuine issues of material fact; the burden then shifts to the nonmoving party, who must put forth a genuine issue of material fact. McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014). The nonmoving party cannot rest on '"mere allegations or denials in the pleadings, mere conclusions or mere legal opinions"' to establish a genuine issue of fact. D'Allesandro v. Tarro, 842 A.2d 1063, 1065 (R.I. 2004) (quoting Santucci v. Citizens Bank of Rhode Island, 799 A.2d 254, 257 (R.I. 2002) (per curiam)). In deciding questions of law, "the trial justice often finds it necessary to exercise his or her independent judgment and make findings as to preliminary facts." Ferreira v. Strack, 636 A.2d 682, 685 (R.I. 1994) (citing Rodrigues v. Miriam Hospital, 623 A.2d 456, 461 (R.I. 1993)).
III
Analysis
A
Standing
The UDJA permits 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. When addressing claims under the UDJA, the Court must determine whether it is presented with a justiciable case or controversy, which requires "(1) a plaintiff with the requisite standing and (2) 'some legal hypothesis which will entitle the plaintiff to real and articulable relief.'" N & M Properties, LLC v. Town of West Warwick ex rel. Moore, 964 A.2d 1141, 1145 (R.I. 2009) (quoting Bowen v. Mollis, 945 A.2d 314, 317 (R.I. 2008)).
Defendants argue that Plaintiffs can only challenge the validity of these ordinances through a zoning appeal under G.L. 1956 § 45-24-71(a) and are prohibited from bringing a declaratory judgment action. However, "a party is not precluded from proceeding under the UDJA, . . . when 'the complaint seeks a declaration that the challenged ordinance or rule is facially unconstitutional or in excess of statutory powers, or that the agency or board had no jurisdiction."' Tucker Estates Charlestown, LLC v. Town of Charlestown, 964 A.2d 1138, 1140 (R.I. 2009) (quoting Kingsley v. Miller, 120 R.I. 372, 374, 388 A.2d 357, 359 (1978)). Here, Plaintiffs allege that the Town Defendants exceeded their authority under state and local law and are therefore permitted to seek declaratory relief.
Standing is satisfied when a plaintiff has suffered "some injury in fact, economic or otherwise." Bowen, 945 A.2d at 317 (quoting Rhode Island Ophthalmological Society v. Cannon, 113 R.I. 16, 22, 317 A.2d 124, 128 (1974)). Our Supreme Court adopted the approach of the United States Supreme Court in holding that an injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not 'conjectural' or 'hypothetical.'" Pontbriand v. Sundlun, 699 A.2d 856, 862 (R.I. 1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). In reviewing a plaintiff's standing, the Court "focuses on the party who is advancing the claim rather than on the issue the party seeks to have adjudicated." Bowen, 945 A.2d at 317 (citing Flast v. Cohen, 392 U.S. 83, 99 (1968)). '"The line is not between a substantial injury and an insubstantial injury. The line is between injury and no injury."' Pontbriand, 699 A.2d at 862 (quoting Matunuck Beach Hotel, Inc. v. Sheldon, 121 R.I. 386, 396, 399 A.2d 489, 494 (1979)).
Courts have "refused to find standing when a plaintiff has failed to demonstrate a personalized injury distinct from that of the community as a whole." Meyer v. City of Newport, 844 A.2d 148, 151 (R.I. 2004). "In Rhode Island, 'generalized claims alleging purely public harm are an insufficient basis for sustaining a private lawsuit.'" Narragansett Indian Tribe v. State, 81 A.3d 1106, 1110 (R.I. 2014) (quoting Watson v. Fox, 44 A.3d 130, 136 (R.I. 2012)). Vague or general assertions of harm are not sufficient for a plaintiff to have standing.
Here, Plaintiffs have failed to present sufficient evidence that they suffered a concrete and particularized injury in fact sufficient for standing under the UDJA. Their general allegations claiming that the actions of the Town Council "have damaged [them], leaving their lives and ownership interests in their properties, without the protections that the laws in fact provide" are insufficient to demonstrate a legally cognizable injury. (Compl. ¶ 279.) In fact, of the thirteen named Plaintiffs, only four provided affidavits alleging any kind of specific harm. These four testifying Plaintiffs allege harm in purely hypothetical terms. For instance, they testified to the effect that "the instillation of this large industrial project will have an adverse effect on the value of our property" and that "the quality of our lives and my own enjoyment of my life in the Town of Hopkinton will be irrevocably damaged" if the project is built. (Pls.' Obj. Ex. 1, Affidavit of Justin P. Bentley ¶¶ 10, 16.) These imprecise and hypothetical statements are insufficient to show an injury in fact. Thus, the Plaintiffs did not provide "evidence of a substantial nature, as distinguished from legal conclusions" that injury would result from the Town Council's actions. Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998).
The other affidavits likewise speak of their injuries in conjectural terms: one affiant stated, "the value of [her] property will be decreased because [she] would be living in the midst of an industrial area." (Pls.' Obj. Ex. 1, Affidavit of Lynn V. Lapierre ¶ 9.) Another Plaintiff testified she was "sickened to think of what the installation of a huge electric generation plant will do to the value of our property and our enjoyment of that property . . ." (Pls.' Obj. Ex. 1, Affidavit of Susan H. Wellman ¶ 7.)
The alleged injuries here are distinguishable from those in Key v. Brown University, wherein abutting property owners provided evidence of physical damage and decrease in property value to substantiate their claims that construction of a nearby sports stadium caused them a cognizable injury. 163 A.3d 1162, 1170 (R.I. 2017). In Key, our Supreme Court found that these plaintiffs had standing to bring a declaratory judgment action where they alleged that the stadium construction caused "physical damage to their home, a decrease in their home's value, and a diminished use and enjoyment of their property." Id. Such alleged economic damages stemming from the defendants' construction constituted an injury in fact for standing purposes under the UDJA. Thus, the Key plaintiffs demonstrated that the alleged unlawful use of the property and lack of public notice as to the construction constituted demonstrable and personalized harm.
Alternatively, "[u]nfounded anxiety or a vague fear based on utterly speculative hypotheses is simply not enough" to confer standing. McKenna v. Williams, 874 A.2d 217, 227 (R.I. 2005) (lawyer's fear of "entirely speculative and hypothetical malpractice claim" if he did not bring declaratory judgment action was insufficient for standing); see also Warfel v. Town of New Shoreham, 178 A.3d 988, 991 (R.I. 2018) (plaintiffs' statement that sale of utilities company had only "the potential to be extraordinarily harmful" was too speculative to be injury in fact) (emphasis in original).
Plaintiffs have alleged only speculative future harm caused by the construction of the solar array and failed to distinguish their hypothetical injuries from the other Hopkinton residents. Generalized injuries incurred by the community at large will not confer standing. In Meyer, abutting landowner plaintiffs lacked standing to bring suit against a realty company planning to modify the local wharf area because "the harm plaintiffs claim to have suffered—lack of access to the waterfront—arises from riparian and littoral rights that are vested equally in all members of the community." 844 A.2d at 151. Similarly, where a plaintiff claimed that the sale of nearby municipal parking lots would decrease the economic value of his own property, our Supreme Court found that "plaintiff's experience [was] not different from the experience of other businesses or people who utilized the municipal parking lots" and therefore, he had not suffered an injury in fact sufficient for standing. N & M Properties, LLC, 964 A.2d at 1146.
Like the plaintiffs in McKenna, Meyer, and N & M, Plaintiffs have not presented evidence of a concrete and particularized injury in fact. Therefore, this Court concludes that as a matter of law, Plaintiffs lack standing under the UDJA because they have not suffered an injury in fact. Accordingly, summary judgment is granted in favor of all Defendants.
B
Town Council Voting Requirements
Plaintiffs allege that the two zoning ordinance amendments are unlawful because the Town Council voted to pass them with a simple majority as opposed to a supermajority. In their motion, both the Solar Energy and Town Defendants argue that state and local law supersedes this requirement. Section 2-116(a) of the Hopkinton Code of Ordinances states that "[t]he affirmative vote of at least two-thirds of the town council shall be necessary to enact any modification or amendment to the comprehensive plan or element thereof where the planning board has rendered an adverse decision." (Compl. Ex. PP.) It is undisputed here that the Planning Board rendered an adverse decision, and the Code of Ordinances requires a supermajority vote to enact the amendments. However, this ordinance provision directly conflicts with provisions of state law and the Hopkinton Town Charter.
Our Supreme Court made clear that municipal "ordinances are 'inferior in status and subordinate' to both state law and a town's charter and that ordinances inconsistent with either are invalid." Tucker Estates Charlestown, 964 A.2d at 1140 (quoting Borromeo v. Personnel Board of Town of Bristol, 117 R.I. 382, 385, 367 A.2d 711, 713 (1977)). Here, the ordinance requiring a two-thirds vote conflicts with the Hopkinton Town Charter, which states that "[a] majority of the members present at any legal meeting may determine any matter legally before the Town Council provided that final passage of ordinances or amendments to ordinances shall require the affirmative vote of the majority of its members." Hopkinton Town Charter art. III, § 3141 (emphasis added). Likewise, § 45-5-3 provides that "a majority of the members present at any legal meeting may determine any matter legally before them." These provisions permit the Town Council to lawfully pass zoning ordinance amendments with a majority as opposed to a supermajority. To the extent that the supermajority requirement in the Hopkinton Code of Ordinances conflicts with the Hopkinton Town Charter and state law, the latter prevails. Therefore, the Town Council did not act unlawfully by passing the amendments with a simple majority instead of a supermajority.
C
Sufficiency of Public Notice
Defendants next argue that the Town Council complied with all applicable notice and hearing requirements of § 45-23-53. Conversely, Plaintiffs contend that the Town Council did not comply with the Hopkinton Town Charter notice requirements and that the notice was insufficient as a matter of law because it did not inform the public regarding what property would be affected and what changes would be sought.
Plaintiffs have failed to establish a genuine issue of material fact as to any insufficiencies in public notice of the amendments. Plaintiffs do not allege that the Town Defendants failed to provide a block notice to the abutting landowners as required under § 45-24-53(d), but instead that the published notice did not contain the requisite information.
The record shows that on January 29, 2018, the Defendants published a block notice that complied with the notice requirements of §§ 45-23-53(a) and (d). (Pls.' Obj. Ex. 2, Public Notice, Jan. 29, 2018.) Such notice identifies the property to be affected, describes the proposed changes to that property, and informs the public as to the hearing date and time. Any claim by Plaintiffs that this notice did not contain the requisite information is without merit, as the notice specifically states that the Town Council would consider "a request for a Zoning Ordinance amendment and a request for an amendment to the Hopkinton Comprehensive Plan Future Land Use Map . . . ." Id. Because this notice "reasonably informs the average lay person of the nature of the proposed changes to the zoning regulations which presently control the use of his or her real estate" and permits landowners to participate in the public hearing, it is sufficient as a matter of law. Golden Gate Corp. v. Town of Narragansett, 116 R.I. 552, 557, 359 A.2d 321, 324 (1976).
Section 45-24-53(a) provides that :
"No zoning ordinance shall be adopted, repealed, or amended until after a public hearing has been held upon the question before the city or town council. The city or town council shall first give notice of the public hearing by publication of notice in a newspaper of general circulation within the city or town at least once each week for three (3) successive weeks prior to the date of the hearing, which may include the week in which the hearing is to be held, at which hearing opportunity shall be given to all persons interested to be heard upon the matter of the proposed ordinance. Written notice, which may be a copy of the newspaper notice, shall be mailed to the parties specified in subsections (b), (c), (d), (e), and (f) of this section, at least two (2) weeks prior to the hearing. The newspaper notice shall be published as a display advertisement, using a type size at least as large as the normal type size used by the newspaper in its news articles, and shall:Section 45-24-53(d) provides:
"(1) Specify the place of the hearing and the date and time of its commencement;
"(2) Indicate that adoption, amendment, or repeal of a zoning ordinance is under consideration;
"(3) Contain a statement of the proposed amendments to the ordinance that may be printed once in its entirety, or summarize and describe the matter under consideration as long as the intent and effect of the proposed ordinance is expressly written in that notice;
"(4) Advise those interested where and when a copy of the matter under consideration may be obtained or examined and copied; and
"(5) State that the proposals shown on the ordinance may be altered or amended prior to the close of the public hearing without further advertising, as a result of further study or because of the views expressed at the public hearing. Any alteration or amendment must be presented for comment in the course of the hearing." Section 45-24-53(a)(1)-(5).
"(d) Where a proposed amendment to an existing ordinance includes a specific change in a zoning district map, but does not affect districts generally, public notice shall be given as required by subsection (a) of this section, with the additional requirements that:
"(1) Notice shall include a map showing the existing and proposed boundaries, zoning district boundaries, existing streets and roads and their names, and city and town boundaries where appropriate; and
"(2) Written notice of the date, time, and place of the public hearing and the nature and purpose of the hearing shall be sent to all owners of real property whose property is located in or within not less than two hundred feet (200') of the perimeter of the area proposed for change, whether within the city or town or within an adjacent city or town. Notice shall also be sent to any individual or entity holding a recorded conservation or preservation restriction on the property that is the subject of the amendment. The notice shall be sent by registered, certified, or first-class mail to the last known address of the owners, as shown on the current real estate tax assessment records of the city or town in which the property is located; provided, for any notice sent by first-class mail, the sender of the notice shall utilize and obtain a United States Postal Service certificate of mailing, PS form 3817, or any applicable version thereof, to demonstrate proof of such mailing." Section 45-24-53(d)(1)-(2).
The Defendants were not required to publish additional notice as to the subsequent hearing dates. Where an initial hearing is duly noticed and adjourned to a "specific date, time and place" that was "known to all," re-advertisement of a hearing is not required. Community Home Builders v. Town Council of North Kingstown, 83 R.I. 409, 413, 117 A.2d 544, 546 (1955); cf. Johnson & Wales College v. DiPrete, 448 A.2d 1271, 1278 (R.I. 1982) (finding continued hearings required re-advertisement because initial hearing was adjourned without any intent to continue meeting to a specified future date).
Here, there was clear intent and notice from the Council to continue the February 20, 2018 public hearing to March 19, 2018. The minutes from the February 20, 2018 hearing state that "[a] motion was made . . . to continue the hearing to March 19, 2018" and was unopposed. (Compl. Ex. M, at 3.) At the March 19, 2018 hearing, the Council voted to set May 7, 2018 as the date it would render a decision on the zoning ordinance amendments, and the public was provided an opportunity to provide comment. (Compl. Ex. U, at 3; Ex. V, at 147:10-14.) ("COUNCIL PRESIDENT LANDOLFI: Anyone out in the public again wishing to be heard on this particular matter?"). In both cases, the agenda for the continued hearing date included the proposed zoning amendments. (Compl. Exs. T, W.)
To the extent that Plaintiffs allege further notice deficiencies—such as the claim that the Town Defendants did not properly read and explain the ordinance at the January 16, 2018 meeting—such claims do not provide a basis for relief. See Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016) ("[W]hen an alleged injury is nothing more than 'a bare procedural violation,' there may be no cognizable harm to the plaintiff and thus no concreteness.") (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549-50 (2016)). Moreover, Plaintiffs have not submitted competent evidence demonstrating a genuine issue of material fact exists as to the sufficiency of this notice, as a party cannot rest on '"mere allegations or denials in the pleadings, mere conclusions or mere legal opinions."' Estate of Giuliano, 949 A.2d at 391 (quoting Tanner v. Town Council of Town of East Greenwich, 880 A.2d 784, 791 (R.I. 2005)).
D
Injunctive Relief and Building Permit
Plaintiffs ask this Court to "[t]emporarily, preliminarily and permanently enjoi[n] [Defendants] from taking any actions pursuant to the illegally adopted change" to the Town's Comprehensive Plan and Zoning Ordinances. (Compl. ¶ 283.) Where a party seeks a preliminary injunction or temporary restraining order, the moving party "must demonstrate that it stands to suffer some irreparable harm that is presently threatened or imminent and for which no adequate legal remedy exists to restore that plaintiff to its rightful position." Fund for Community Progress v. United Way of Southeastern New England, 695 A.2d 517, 521 (R.I. 1997); see also City of Woonsocket v. Forte Brothers, Inc., 642 A.2d 1158, 1159 (R.I. 1994) (per curiam) ("[T]he same criteria must be established to issue either a preliminary injunction or a temporary restraining order.").
For a permanent injunction, a plaintiff must demonstrate irreparable injury, and '"injuries that are prospective only and might never occur cannot form the basis of a permanent injunction."' National Lumber & Building Materials Co. v. Langevin, 798 A.2d 429, 434 (R.I. 2002) (quoting Rhode Island Turnpike & Bridge Authority v. Cohen, 433 A.2d 179, 182 (R.I. 1981)). "A party seeking an injunction must also demonstrate likely success on the merits and show that the public-interest equities weigh in favor of the injunction." National Lumber, 798 A.2d at 434. Here, the Plaintiffs have failed to establish a probability of success on the merits. There is not a scintilla of evidence brought forth by Plaintiffs to establish a prima facie case against the Defendants. Thus, they have not met their burden to establish a genuine issue of material fact showing that they are entitled to an injunction with respect to the construction of the solar array.
Next, the Solar Energy Defendants argue that due process concern pertaining to their building permit, as well as the doctrine of equitable estoppel, prevents Plaintiffs from challenging this permit and prevents the Town Defendants from revoking the zoning ordinance amendments or taking any action that would impact construction of the solar array. Here, the Solar Energy Defendants received a building permit on September 9, 2019. (Solar Energy Defs.' Mot. Summ. J. Ex. 7, Solar Permit, Sept. 9, 2019.)
The doctrine of equitable estoppel requires:
'"an affirmative representation or equivalent conduct on the part of the person against whom the estoppel is claimed which is directed to another for the purpose of inducing the other to act or fail to act in reliance thereon; and secondly, that such representation or conduct in fact did induce the other to act or fail to act to his injury."' Faella v. Chiodo, 111 A.3d 351, 357 (R.I. 2015) (quoting Cigarrilha v. City of Providence, 64 A.3d 1208, 1213 (R.I. 2013)).
This doctrine may be invoked against public agencies "to prevent injustice and fraud where the agency or officers thereof, acting within their authority, made representations to cause the party seeking to invoke the doctrine either to act or refrain from acting in a particular manner to his detriment." Ferrelli v. Department of Employment Security, 106 R.I. 588, 594, 261 A.2d 906, 910 (1970). The issuance of a building permit by a Town building official is an act by a public agency that caused the Solar Energy Defendants to prepare for construction of a solar array on the Property. Thus, any modification or revocation to the permit by the Town Defendants or other Town agencies may raise estoppel concerns.
A lawfully issued building permit '"should be immune to impairment or revocation . . . when the holders thereof, acting in reliance thereon in good faith, initiate construction in some reasonably substantial measure or incur some reasonably substantial obligation promoting such construction."' Martel Investment Group, LLC v. Town of Richmond, 982 A.2d 595, 599 (R.I. 2009) (quoting Shalvey v. Zoning Board of Review of City of Warwick, 99 R.I. 692, 699, 210 A.2d 589, 593-94 (1965)); see also P.L.S. Partners, Women's Medical Center of Rhode Island, Inc. v. City of Cranston, 696 F. Supp. 788, 798 (D.R.I. 1988) ("Under Rhode Island law, the issuance of a building permit confers vested rights which may not be revoked where substantial construction has been undertaken in reliance on the permit."). Moreover, in Tantimonaco v. Zoning Board of Review of Town of Johnston, our Supreme Court found that even where a zoning board may have issued a defective building permit, where the applicants had incurred substantial obligations in good faith in reliance on that permit and were not "in any way responsible for the defective proceedings which led to the issuance of the . . . permit," the building permit should not be revoked. 102 R.I. 594, 602, 232 A.2d 385, 390 (1967).
Here, Plaintiffs have presented no evidence in the record that the Solar Energy Defendants were responsible for any alleged procedural deficiencies in the issuance of the permit. Though Plaintiffs allege that the Solar Energy Defendants acted in bad faith by delaying this case until they obtained a building permit, they present no evidence in the record as to this allegation. Thus, Plaintiffs have failed to create a genuine issue of material fact as to the validity of the building permit or the Solar Energy Defendants' reliance upon it.
E
Waiver and Laches
Finally, the Solar Energy Defendants argue that the doctrines of waiver and laches bar the Plaintiffs from challenging construction of the solar array and prevent the Town Defendants from any further action as to the zoning ordinance amendments. Laches "is an equitable defense that precludes a lawsuit by a plaintiff who has negligently sat on his or her rights to the detriment of a defendant." O'Reilly v. Town of Glocester, 621 A.2d 697, 702 (R.I. 1993) (citing Fitzgerald v. O'Conner, 120 R.I. 240, 245, 386 A.2d 1384, 1387 (1978)). For laches to bar an action there must be both "negligence on the part of the plaintiff that leads to a delay in the prosecution of the case" and "this delay must prejudice the defendant." Id. Similarly, waiver is the "voluntary, intentional relinquishment of a known right" and may be implied where a party "has pursued such a course of conduct as to sufficiently evidence an intention to waive a right or where his conduct is inconsistent with any other intention than to waive it." Sturbridge Home Builders, Inc. v. Downing Seaport, Inc., 890 A.2d 58, 65 (R.I. 2005) (citations omitted).
The Solar Energy Defendants have not presented any of the requisite evidence that Plaintiffs acted negligently in bringing this action or that Plaintiffs acted in such a way as to waive their rights to bring this action. Therefore, the doctrines of waiver and laches do not entitle the Solar Energy Defendants to summary judgment.
IV
Conclusion
Because Plaintiffs lack an injury in fact sufficient for standing under the UDJA, and because there is no genuine issue of material fact as to the lawfulness of the zoning ordinance amendments, this Court grants summary judgment for all Defendants as to all counts in the Plaintiffs' declaratory judgment action. Counsel will prepare the appropriate order for entry.
ATTORNEYS:
For Plaintiff: James A. Donnelly, Esq. For Defendant: Kevin McAllister, Esq.; John O. Mancini, Esq.