Opinion
C. A. WC-2020-119
10-21-2020
GREEN DEVELOPMENT, LLC A/K/A WIND ENERGY DEVELOPMENT, LLC, and MARK DEPASQUALE Plaintiffs, v. TOWN OF EXETER; MARIA LAWLER, in her capacity as the Treasurer of the Town of Exeter; CALVIN A. ELLIS, in his capacity as Member of the Town of Exeter Town Council; FRANCIS PAUL DiGREGORIO, in his capacity as Member of the Town of Exeter Town Council and in his individual capacity; ROBERT M. CONN, in his capacity as Member of the Town of Exeter Town Council; MANUEL ANDREWS, in his capacity as Member of the Town of Exeter Town Council; DANIEL W. PATTERSON, in his capacity as Member of the Town of Exeter Town Council; and ASHLEY SWEET in her official capacity as Town Planner, Town of Exeter Defendants.
For Plaintiff: William M. Dolan, Esq., Elizabeth M. Noonan, Esq., Nicholas L. Nybo, Esq., John Tarantino, Esq., William K. Wray, Jr., Esq. For Defendant: Stephen J. Sypole, Esq., Michael DeSisto, Esq., James P. Marusak, Esq., Kathleen M. Daniels, Esq.
For Plaintiff: William M. Dolan, Esq., Elizabeth M. Noonan, Esq., Nicholas L. Nybo, Esq., John Tarantino, Esq., William K. Wray, Jr., Esq.
For Defendant: Stephen J. Sypole, Esq., Michael DeSisto, Esq., James P. Marusak, Esq., Kathleen M. Daniels, Esq.
DECISION
LANPHEAR, J.
This matter came on for hearing before Mr. Justice Lanphear on September 28 and October 8, 2020 on the Defendants' Motions to Dismiss. Five separate motions were submitted. At the September 28 hearing, three of the motions were decided, and three orders have been entered. Two motions remain.
Plaintiffs contend that Defendants waived their ability to move to dismiss as "[a] Rule 12(b) motion may not … be filed after the answer …" Plaintiffs' Mem. of Law of Sept. 14, 2020, at 8. The Rhode Island Supreme Court has held that "[w]ith respect to motions filed under Rule 12(b) generally, we have ruled that a court may consider a post-answer motion raising a defense that was asserted in the answer." Hall v Kuzenka, 843 A.2d 474, 476 (R.I. 2004). After reviewing the Defendants' Answer herein of March 30, 2020 (particularly paragraphs 117, 119-123 and 126), the Court finds that these issues were sufficiently preserved for a motion to dismiss.
The first motion claims that Count VI should be dismissed. Count VI requests recovery pursuant to the Rhode Island Access to Public Records Act, G.L. 1956 § 38-2. Defendants contend that this statute is not to be used as an alternative form of discovery, citing Hydron Laboratories, Inc. v. Department of Attorney General for the State of R.I., 492 A.2d 135, 139 (R.I. 1985). It is not clear, at this point in the litigation, whether records pertaining to this action are the only records requested. The statute also allows for the award of legal fees and other remedies in certain circumstances. Section 38-2-9. Several of these remedies may be unavailable without the statute. Accordingly, the motion to dismiss Count VI is denied.
In a separate motion, the Defendants claim that the principles of claim preclusion, collateral estoppel, and issue preclusion bar the relitigation of claims contained in Counts I, II, IV, V, and VII of the Complaint. Specifically, Defendants claim that this Court's Decisions of March 21, 2019 in WC-2018-0636, Green Development, LLC v. Town of Exeter, et al. and April 20, 2020 in WC-2018-0519, Green Development, LLC v. Town of Exeter Zoning Board of Review, et al. preclude recovery in this action. In the March 21, 2019 Decision, the Court held, inter alia, that Exeter's limited moratorium on approval of certain solar projects was valid and did not violate procedural due process, substantive due process, or equal protection. The 2019 Decision did not reference the so-called "Solar 9 ordinance" enacted just forty days earlier-after all briefing was submitted to the Court.
The April 20, 2020 Decision in WC-2018-0519 decided a zoning appeal. In that action, Green Development, LLC had appealed a ruling of the Exeter Zoning Board of Review dated September 21, 2018. Surely, the Plaintiffs were not seeking review of the Solar 9 ordinance, which was not passed until February 9, 2019.
Clearly, in each of the earlier Decisions, the parties were identical and final judgments entered. However, as the Solar 9 ordinance of February 9, 2019 was not addressed in either case, those cases did not have the identical issues to the case at bar. Identity of issues is a key element for claim preclusion to apply. Gaudreau v. Blasbalg, 618 A.2d 1272, 1275 (R.I. 1993). Identity of issues is also a necessary element for collateral estoppel or issue preclusion to apply. State v. Chase, 588 A.2d 120, 122 (R.I. 1991). Accordingly, the issues concerning the enactment of the moratorium may not be adjudicated here, but the Complaint appropriately raises counts questioning the application of the Solar 9 ordinance. To this extent only, the motion to dismiss is granted in part for Counts I, II, IV, V and VII.
Next, the Defendants request this Court to determine the constitutionality of the Solar 9 ordinance in this motion to dismiss. Specifically, they request that this Court dismiss the claims that the ordinance lacks a rational relationship, is unconstitutionally vague, constitutes an unlawful taking, and violates equal protection. Though the constitutional claims are not very explicit, they need not be, as Rule 8(a)(1) of the Superior Court Rules of Civil Procedure requires that the Complaint contain only a short and plain statement of the claim. Each of the claims, in themselves, state appropriate claims, as does the tortious interference claim. The Court will not read into the counts, or presume, the precise deprivation of property interest, the economic impact, or the like to appropriately address these claims. The Court will not convert the motion to a motion for summary judgment at this time. Discovery and further briefing should proceed. Accordingly, the motion to dismiss is denied as to these grounds.
Finally, the Town of Exeter asserts that the town councilpersons are legislatively immune from the tortious interference count, Count VII. Maynard v. Beck, 741 A.2d 866, 870 (R.I. 1999). The Court recognizes that most of the councilpersons and other officials are named "in their official capacity" only, requesting no award against them individually. The remaining councilperson, named individually, has absolute legislative immunity for actions taken in his legislative capacity. Accordingly, the claim against Mr. DiGregorio, individually, is dismissed.
Counsel for Defendants shall prepare appropriate orders.