Opinion
C. A. WC-2020-0089
06-29-2020
MARK STEELE AND SUSAN STEELE v. PETER DIERAUF AND DIANA LEE DIERAUF, AND KEARSARGE SOLAR LLC
For Plaintiff: John C. Revens, Jr., Esq. David M. Revens, Esq. For Defendant: Vincent A. Indeglia, Esq. Jaclyn A. Cotter, Esq.
Washington County Superior Court
For Plaintiff: John C. Revens, Jr., Esq. David M. Revens, Esq.
For Defendant: Vincent A. Indeglia, Esq. Jaclyn A. Cotter, Esq.
DECISION 1
TAFT-CARTER, J.
Before this Court for decision is Mark Steele and Susan Steele's (collectively Plaintiffs or the Steeles) request for a preliminary injunction. The Defendants in this matter, Peter Dierauf and Diana Lee Dierauf (collectively the Dieraufs) and Kearsarge Solar LLC (Kearsarge Solar) object to the Plaintiffs' motion and assert that they are entitled to an evidentiary hearing. Jurisdiction is pursuant to Super. R. Civ. P. 65.
I
Facts and Travel
The Plaintiffs are residents of South Kingstown and own and reside on Lot 8 of the Kenyon Woods Residential Compound (Kenyon Woods). Pls.' Verified Compl. ¶ 1. At issue are Lots 9 and 10 of Kenyon Woods. These lots are presently undeveloped and owned by the Dieraufs. Id. ¶ 2. Lots 8, 9, and 10 abut each other. Id. ¶ 4. All lots were originally owned by Lillian F. Kenyon who conveyed, by warranty deed, all parcels of land to the Dieraufs on May 3, 1984. Id. ¶ 7.
Two years later, on March 31, 1986, the Dieraufs recorded a Declaration (the Declaration) with the Land Records of the Town of South Kingstown (the Town). Pls.' Verified Compl., Ex. 2. The Declaration provides, in pertinent part:
"NOW THEREFORE, the Declarant hereby places upon the land records of the Town of South Kingstown the following restrictions, covenants, agreements, reservations and information which shall govern the use of any said parcels whenever imposed by reference to this Declaration, in a deed of conveyance, from the Declarant, or from any person, partnership or corporation designated by the Declarant, by instrument recorded in said land records, and which shall run with the land so conveyed, and shall enure to the benefit of the owners of the lots affected by the terms hereof, except as hereinafter provided, to the person or corporation authorized to impose the terms hereof, and, where applicable, to the municipality . . ." Id.
One such restriction was that "[t]he premises shall be used for residential purposes only and restricted to one family, owner occupied, private residences with garages." Id. Furthermore, the Declaration provided that:
"In the event of any violation or attempt to violate any of the covenants, conditions or restrictions herein set forth, it shall be lawful for any person or party owning or otherwise having an interest in any real property situated in said residential compound to institute and prosecute any proceedings at law or in equity to compel compliance with the terms hereof or to prevent the violation or breach of any of them." Id.
In July of 1987, the Dieraufs received Preliminary and Final Plan approval from the South
Kingstown Planning Board. Defs.' Mem. in Opp'n at 4. Soon thereafter, the Dieraufs recorded new Residential Compound Restrictions for Kenyon Woods (1987 Restrictions). Defs.' Mem. in Supp. of Opp'n, Ex. F. The Dieraufs then also recorded Lillian Kenyon's 1984 Restrictions. Defs.' Mem. in Opp'n, Ex. D. These two documents were virtually identical and, though both documents refer to Kenyon Woods as a "residential compound," neither contained the specific restrictions contained in the 1986 Declaration. Id. The Defendants claim that the Dieraufs then "convey[ed] the remainder of the Lots within the compound by a deed of conveyance with a reference to the restrictions in the July 1987 Restrictions and the November 1987 plat map." Defs.' Mem. in Opp'n at 5.
In 1987, the EPA identified Lots 9 and 10 as a Brownfield site due to contamination left over from the land's use as a waste dumping site from 1970 to 1980. Id. at 3-4. Due to this designation, the expansion, redevelopment, or reuse of the Lots is restricted and the Dieraufs were unable to develop or convey either of the Lots. Id.
On June 30, 1995, the Dieraufs conveyed, by warranty deed, Lot 8 to the Plaintiffs. Pls.' Verified Compl. ¶ 10. The Warranty Deed states, in pertinent part:
"We, PETER DIERAUF and DIANA L. DIERAUF, for consideration paid, grant to MARK A. STEELE and SUSAN E. STEELE, husband and wife, as tenants by the entirety, both with a mailing address of
"with WARRANTY COVENANTS:
"That parcel of land, with all the buildings and improvements thereon, located in the Town of South Kingstown, Rhode [I]sland described in Exhibit "A" attached hereto and made a part hereof.
"Subject to restrictions and easements of record." Pls.' Verified Compl., Ex. 3.
In 2003, the EPA delegated oversite of Lots 9 and 10 to the State of Rhode Island Department of Environmental Management (RIDEM). After multiple site investigations, RIDEM concluded that Lots 9 and 10 could never be used for residential purposes. Defs.' Mem. in Opp'n at 5. Lots 9 and 10 are currently listed as "active" on the EPA's Superfund database, as well as RIDEM's Hazardous Waste Sites list. Pls.' Verified Compl., Ex. 5. RIDEM required that the Town or the Dieraufs begin a "Remedial Action Work Plan" to remove the toxins from the Lots because said toxins were seeping into nearby groundwater. Defs.' Mem. in Opp'n at 5. In a letter to the Steeles on June 29, 2018, the Dieraufs stated:
"[W]e have had no option but to comply with RIDEM's requirements in our effort to get them to agree to remove the site from their 'Active' list of potential hazardous waste sites. Not complying with RIDEM's request would mean that the site would remain on RIDEM's 'Active' list, which, in and of itself, would have a negative impact on both the site and proximitous properties." Pls.' Verified Compl., Ex. 4.
As a result, the Dieraufs began conversations with Kearsarge Solar to install a commercial solar array system on Lot 10 to generate solar power for one or more municipalities. Pls.' Verified Compl. ¶ 11. The plan would also "restore" Lot 10 to reduce the risk of toxic ground water, and the project would help the Dieraufs finance the site restoration. Defs.' Mem. in Opp'n at 6. As the Dieraufs explained in a follow up letter to the Steeles dated July 26, 2018, the Dieraufs would "need to secure a grant from RIDEM that will offset some of the costs of site investigation/ remediation and if successful, will then allow the site to be used as a passive solar site which will also cover costs of the remediation." Pls.' Verified Compl., Ex. 5. In this same letter, the Plaintiffs were told that "[b]efore there is any remediation and solar, we need local and state approvals, and an amendment to the Deed." Id.
The Steeles opposed the proposed amendment of the Deed or Declaration, and in an email to Kearsarge Solar's representative, stated that "[a]fter carefully considering your proposal for the solar panel array, my wife and I feel it would negatively impact the value of our home (especially since we are the closest to the proposed site)." Pls.' Verified Compl., Ex. 6. As a result of the failure to secure a unanimous vote, the Defendants conveyed that remediation efforts would cease. Pls.' Verified Compl. ¶¶ 15-17.
Notwithstanding, the Defendants continued the efforts to prepare the lot for the installation of the solar array. Id. ¶¶ 18-20. For example, after discovering that the proposed solar array on Lot 10 would extend into parts of Lot 9, the Dieraufs requested an administrative subdivision to transfer part of Lot 9 to 10. The Dieraufs also sought rezoning of the lots from a "Residential Low Density (R80) to Government and Institutional (GI)." Id. ¶ 20. On November 28, 2018, the Steeles emailed Kearsarge Solar's representative reiterating their disapproval and stating that "after reviewing your website and the proposed placement of the array[, ] we feel it would affect the overall value of our house." Pls.' Mem. at 6. The Dieraufs' rezoning plan was conditionally approved on December 10, 2018 on the grounds that the Dieraufs would be able to complete an administrative subdivision transferring to Lot 10 "any portion of Lot 9 that the proposed solar array would extend onto" which was subsequently approved. Id.
Moreover, on April 22, 2019, Kearsarge Solar's representative emailed the Steeles a copy of the Dieraufs' proposed amendment to the Declaration. Pls.' Verified Compl., Ex. 12. The proposed amendment stated that the Restrictions imposed by the Declaration "did impose certain covenants, restrictions, reservations and agreements upon certain lots of land located on Gravelly Hill Road in South Kingstown" including on the Lots that are now called 9 and 10. Moreover, the proposed amendment states:
"Lot 10 would be suitable for use for the location of a solar energy system. . . . [T]he undersigned Declarant and the Lot Owners within the Kenyon Woods Compound . . . have agreed to amend the Declaration to specifically allow the Declarant, and its successors to lease Lot 10 for use as a solar energy system as a principal use." Pls.' Verified Compl., Ex. 12.
The Plaintiffs did not sign the proposed amendment. Pls.' Verified Compl. ¶ 24.
On September 9, 2019, the South Kingstown Town Council approved the Dieraufs' application to rezone the lots from Residential Low Density (R80) to Government and Institutional (GI) and the Town's zoning maps were amended to reflect this change. Pls.' Mem. at 7. The Town Council stated that, among other things, the plan was in the best interest of public health and safety, particularly as it relates to the Town's drinking water. Pls.' Verified Compl., Ex. 9, Town Council September 9, 2019 Decision.
On September 30, 2019, Plaintiffs filed an appeal of the Town Council decision to the Superior Court pursuant to G.L 1956 §§ 45-45-16 and 45-24-7. On February 12, 2020, construction vehicles arrived on Lots 9 and 10 for the purpose of commencing the installation and construction of the commercial solar array. Pls.' Verified Compl. ¶ 30. On February 18, 2020, the Plaintiffs filed the instant Verified Complaint. The Plaintiffs' Complaint sought, among other things, the Preliminary Injunction currently before the Court asking the Court to enjoin the Defendants from any further effort to construct a solar array on Lots 9 or 10. The Complaint also included a request for a Temporary Restraining Order to restrain Defendants "from engaging in any further efforts to install or construct a solar array on Lots 9 and/or 10." Id. ¶ 40. On February 19, 2020, this Court granted the Plaintiffs Temporary Restraining Order. In an Order issued on March 16, 2020, this Court extended the Temporary Restraining Order until the Court renders a decision on the merits of the matter presently before the Court.
The Preliminary Injunction matter was heard virtually via WebEx on May 21, 2020. The Court now renders its decision.
II
Standard of Review
The Plaintiffs request a preliminary injunction pursuant to Rule 65(b) of the Rhode Island Rules of Civil Procedure. A preliminary injunction is designed to "preserve the rights of the parties until a final disposition of the action." Robert B. Kent et al., Rhode Island Civil and Appellate Procedure § 65:1 (2019). The decision of whether to grant a preliminary injunction "rests within the sound discretion of the hearing justice." Iggy's Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I. 1999).
"[T]he criteria a hearing justice should consider in deciding whether to grant a preliminary injunction are well settled." Fund for Community Progress v. United Way of Southeastern New England, 695 A.2d 517, 521 (R.I. 1997). When determining whether to issue a preliminary injunction, the hearing justice must determine:
"'whether the moving party (1) has a reasonable likelihood of success on the merits, (2) will suffer irreparable harm without the requested injunctive relief, (3) has the balance of the equities, including the possible hardships to each party and to the public interest, tip in its favor, and (4) has shown that the issuance of a preliminary injunction will preserve the status quo.'" Vasquez v. Sportsman's Inn. Inc., 57 A.3d 313, 318 (R.I. 2012) (quoting Iggy's Doughboys Inc., 729 A.2d at 705); see also Fund for Community Progress, 695 A.2d at 521.Substantive issues are not resolved at the preliminary injunction stage. See Iggy's Doughboys, 729 A.2d at 705. A "reasonable likelihood of succe[ss] on the merits" does not therefore mean a "certainty of success." See Fund for Community Progress, 695 A.2d at 521. Instead, our Supreme Court requires "only that the moving party make out a prima facie case" for the underlying claim. Id. "Prima facie evidence is [considered the] amount of evidence that, if unrebutted, is sufficient to satisfy the burden of proof on a particular issue." Paramount Office Supply Co. Inc. v. D.A. Maclsaac, Inc., 524 A.2d 1099, 1101 (R.I. 1987).
III
Discussion
(i)
Likelihood of Success on the Merits
The Plaintiffs argue that the Defendants' efforts to install a commercial solar array on Lots 9 and 10 of Kenyon Woods violate the Declaration's restrictive covenant requiring that Kenyon Woods be used only for residential purposes. Pls.' Mem. at 10. In response, the Defendants argue that the restrictive covenant in the Declaration does not apply to Lots 9 and 10 because the Declaration requires a deed of conveyance from the Dieraufs before the Declaration attaches to any given lot in Kenyon Woods. Defs.' Mem. in Opp'n at 12. Because Lots 9 and 10 were never conveyed, the Defendants argue that the restrictive covenant is not applicable. Id. In order to prevail on a claim for breach of a restrictive covenant, the Plaintiffs must first prove that the restrictive covenant in the 1986 Declaration is enforceable against Lots 9 and 10. Emma v. Silvestri, 101 R.I. 749, 754, 227 A.2d 480, 482 (1967).
Here, the plain language of the Declaration clearly and unambiguously states that the restrictions and covenants outlined in the Declaration "shall govern the use of any said parcels whenever imposed by reference to this Declaration, in a deed of conveyance, from the Declarant, or from any person, partnership or corporation designated by the Declarant, by instrument recorded in said land records. . ." Pls.' Verified Compl., Ex. 2. This language is unambiguous-before a covenant can apply to a lot, there must first be a deed of conveyance from the Declarants. In addition, the deed must reference the Declaration. In this case, neither Lots 9 or 10 have ever been conveyed; they have remained in the Dieraufs' ownership since Lillian Kenyon's conveyance to them in 1986.
In some cases, however, restrictions imposed by a general scheme of a subdivision may be enforced even if they are not incorporated in all conveyances within the subdivision. 4 A.L.R.2d 1364 (originally published in 1949). For example, in Emma, 101 R.I. at 753, 227 A.2d at 482, a common grantor of a subdivision demonstrated an intent to create a general scheme and, as a result, the Court found that the respondent was enjoined from operating a dental office out of his home. There, the Court stated that "a common grantor's intention to establish a uniform plan for development may be determined upon all of the facts and circumstances surrounding the development of the plat as well as from the substance of the restrictions set out in the conveyances." Id. (citing to Clemence v. Mazika, 73 R.I. 254, 260, 54 A.2d 379 (1947)). Moreover, "once the intention to develop a plat according to a uniform plan of development is established, it is well settled that the restrictions may be enforced against the lots retained by the common grantor." Id. at 754, 227 A.2d at 482.
Here, the Plaintiffs argue that the purpose for which the restrictive covenant was created continues to exist because Kenyon Woods remains a residential neighborhood, and the Defendants' interpretation of the Declaration "runs afoul of their own representations." Pls.' Reply Mem. at 1-2. The Plaintiffs contend that the Dieraufs' communication with the Plaintiffs concerning approval of the solar array demonstrated that the Dieraufs intended the restrictive covenant to apply to all lots in Kenyon Woods at the time the Declaration was recorded. Id. at 4. In response, the Dieraufs point out that as the grantors of the restrictive covenant, "their intent is readily ascertainable." Defs.' Sur Reply Mem. at 3. Though it appears from the pleadings that all other homes in the subdivision are residential, the Court has not been made aware of whether some or all of these homes reference the Declaration, and this is a factual issue that must be determined in an evidentiary hearing. See Noonan v. Cuddigan, 85 R.I. 328, 131 A.2d 241 (1957) (finding that no general plan of development was created by a grantor whose recorded plat made no mention of restrictions and who conveyed seventeen of eighty-two lots without restrictive covenants).
Nevertheless, the standard here is a mere prima facie showing of likelihood of success on the merits. The Court is not deciding the merits of the issue at this juncture. That being said, in applying the standard of review, the Plaintiffs' evidence as to the Dieraufs' representations, and the apparent uniformity of Kenyon Woods, supports the Plaintiffs' prima facie case that the restrictive covenant could be found to apply to the Lots. Accordingly, the Plaintiffs have met their burden of likelihood of success on the merits by presenting a prima facie case that the restrictive covenant is enforceable on Lots 9 and 10, and the merits of this issue must be decided by an evidentiary hearing.
The next question for the Court is whether the Plaintiffs have presented a prima facie case that, if the restrictive covenant applies, it was violated. In interpreting such an instrument, the Rhode Island Supreme Court has stated that "effect will be given to the intention of the parties whenever that intent can be ascertained in so far as the rules of law will permit." Kusiak v. Ucci, 53 R.I. 36, 163 A.2d 226, 227 (1932) (citing to Sullivan Granite Co. v. Vuono, 48 R. I. 292, 137 A. 687). However, the intention to be ascertained is the "intention expressed in the instrument and not some undisclosed intention that the parties may have had in mind." Thomas v. Ross, 119 R.I. 231, 240, 376 A.2d 1368, 1373 (1977). Accordingly, "[w]henever possible, the terms of a deed are construed according to their plain meaning." Sakonnet Point Marina Association, Inc. v. Bluff Head Corp., 798 A.2d 439, 443 (R.I. 2002); see also Kusiak, 53 R.I. at 38, 163 A.2d at 226 ("[a] deed must be construed according to its plain meaning").
Here, the Declaration clearly states "[t]he premises shall be used for residential purposes only and restricted to one family, owner occupied, private residences with garages." Pls.' Verified Compl., Ex. 2. This restriction is unambiguous. Therefore, if this Court were to find that the restriction does apply to Lots 9 and 10, the Plaintiffs have a likelihood of success on the merits as to whether the restriction would be violated by construction of a commercial solar array.
The Defendants also argue that the Plaintiffs will not succeed because "[t]he EPA's determination that the Property has been exposed to copious hazardous products and materials, renders the original purpose of the restrictive covenants as it related to Property. . . impossible." Defs.' Mem. at 19. Moreover, the property cannot be sold or conveyed in its current condition. Therefore, they argue, the Court should consider the effects of the restrictive covenant on the free alienability of property. Id. at 21. The Defendants also argue that waiver and estoppel prevent the Plaintiffs' success on the merits because, since the site has been used as a dumping site for waste and toxins, the original purpose of the covenant can no longer be accomplished and to decide otherwise would unjustly require that the Lots remain unused. Id. at 24.
It appears, however, that Kenyon Woods remains an entirely residential neighborhood, and the precedent in this area imagines that a "changed character of the neighborhood" could invalidate a restrictive covenant and cause property to become unmarketable due to these changes. Duffy v. Mollo, 121 R.I. 480, 486, 400 A.2d 263, 266 (1979). Changes specific to a single lot or lots do not appear to have the same effect. For example, in Duffy, 121 R.I. at 480, 400 A.2d at 263, where the Court found there to be a radical and permanent change in the character of the surrounding neighborhood from farmland to commercial frontage, perpetuation of the restrictive covenant was plainly unjust because its original purpose could no longer be accomplished. See also Hill v. Ogrodnik, 83 R.I. 138, 113 A.2d 734 (1955) (where an abutting street had become a major traffic artery and the surrounding neighborhood had been devoted to various business enterprises, the Court found that the residential use covenant had been neutralized to the point of defeating its original purpose and the lot in question had become practically unmarketable for residential use).
Moreover, as the Court stated in Ridgewood Homeowners Association v. Mignacca, 813 A.2d 965, 972-73 (R.I. 2003), "while it may be appropriate for a court to refuse to enjoin the violation of a covenant on the ground of waiver if that covenant 'has become obsolete,' the Rhode Island General Assembly has addressed obsolescence by creating a thirty-year limitation on the enforcement of restrictive covenants. G.L. 1956 § 34-4-21." Here, as the Plaintiffs have argued, the restrictive covenant expires and will no longer restrict the use of the Lots in 2036. Pls.' Mem. at 12. Therefore, the Defendants' argument on the issue of the original purpose of the covenant and free alienability of the Lots does not defeat the Plaintiffs' prima facie case.
Finally, the Defendants argue that the Plaintiffs waived the restrictions found in the restrictive covenant because they knew that the property was going to be rezoned and "did nothing" for several months. Defs.' Mem. in Opp'n at 24. The Court finds that, considering the Plaintiffs' timely appeal of the Zoning Board's decision, as well as the present action, this is an unpersuasive argument at this stage and does not help the Defendants overcome the Plaintiffs' prima facie case.
The Defendants also argue that the Plaintiffs do not have a likelihood of success on the merits because the Plaintiffs will not succeed on their argument that the rezoning of the property was an illegal spot zoning. However, as the Plaintiffs point out, this issue relates to the Town Council Appeal (WM-2019-0510) not presently before the Court. Pls.' Mem. at 8.
(ii)
Irreparable Harm
This Court must next consider whether Plaintiffs will suffer irreparable harm if the preliminary injunction is not granted. Iggy's Doughboys, Inc., 729 A.2d at 705. To justify a preliminary injunction, irreparable harm must be "presently threatened or imminent and for which no adequate legal remedy exists to restore that plaintiff to its rightful position." Fund for Community Progress, 695 A.2d at 521.
The Plaintiffs argue that the market value of their home will be negatively affected by the installation of the solar array. The Plaintiffs are also concerned about their proximity to the proposed solar array and an "eyesore" impacting the view from their property. Pls.' Mem. at 6. Moreover, the Plaintiffs argue that they purchased their property in reliance on the subdivision being strictly residential. Pls.' Reply Mem. at 4. The Defendants argue that a claim for monetary damages is insufficient to make out irreparable harm in the present action. Defs.' Mem. at 26. The Court is persuaded, however, that the Plaintiffs will suffer irreparable harm without the requested relief, insofar as the restrictive covenant, if applicable, will be violated.
Similarly, in Cullen v. Tarini, 15 A.3d 968 (R.I. 2011), the violation of the restrictive covenants designed to protect the neighbor's ocean views caused irreparable harm to the neighbor, supporting the trial court's entry of a permanent injunction against landowners. Furthermore, the Court there found that the violations of the covenant offended its purpose, which was to preserve an unobstructed view to nature, including the ocean, and neighbors could not be compensated by remedy at law if such violations of the covenant were allowed because "[t]he value of a restrictive covenant often is subjective and difficult to evaluate in monetary terms." See also City of Woonsocket v. Forte Brothers, Inc., 642 A.2d 1158, 1159 (R.I. 1994) (where the property was zoned for residential use and defendants were not granted a variance or an exception, the Court found that irreparable harm would occur if the defendants continued removing earth or blasting on the property, and a preliminary injunction was issued). Therefore, the Court finds that the second prong is satisfied.
(iii)
Balance of the Equities
The Plaintiffs instruct the Court that a balance of the equities is not necessary. Pls.' Mem. at 12. The Plaintiffs are correct that when the issue before the court is a breach of a restrictive covenant, "establishing a violation of the restrictive covenant [i]s sufficient for a court to provide the injunctive relief sought." Cullen, 15 A.3d at 980. Here, however, the Plaintiffs have met a prima facie case for success on the merits only in the context of a preliminary, not permanent, injunction, and the Plaintiffs have not proven definitively that the restrictive covenant applies, or that the Defendants are in violation thereof. Id. Therefore, the Court must next consider whether the balance of equities tips in Plaintiffs' favor. Iggy's Doughboys, Inc., 729 A.2d at 705.
In balancing the equities, the Court must consider harm to the Plaintiffs if the preliminary injunction is denied, and harm to the Defendants if the preliminary injunction is granted, and the importance of the public interest. See id. The Defendants would undoubtedly have to incur some expense to pause the solar array and have expressed fear that the project will not move forward if further delayed. Defs.' Mem. in Opp'n at 28. However, this Court places a high value on the rights possessed by a property owner to enforce a restrictive covenant, and "[t]he duty of the courts is to protect rights, and innocent complainants cannot be required to suffer the loss of their rights because of the expense to the wrongdoer." Cullen, 15 A.3d at 982 (internal quotation omitted).
The Defendants have argued that there is a public policy concern from the "inevitable pollution of hazardous metals to surrounding properties and groundwater." Defs.' Mem. at 20, 26-28. However, the Defendants have not demonstrated why pausing the project until a final determination of the merits of the controversy can be made would cause further damage to the Lots or surrounding properties. Moreover, it has not been made entirely clear to the Court how the construction of a commercial solar array would solve this problem. Once again, these substantive issues, such as the impact of the project, must be decided through an evidentiary hearing. The Court therefore concludes that the balance of the equities, tipped in Plaintiffs' favor, weighs in favor of granting the preliminary injunction.
(iv)
Maintaining the Status Quo
Lastly, the Court must determine whether granting Plaintiffs' request for a preliminary injunction would preserve the status quo. Iggy's Doughboys, Inc., 729 A.2d at 705. The Rhode Island Supreme Court has held that the status quo is "the last peaceable status prior to the controversy." E.M.B. Associates Inc. v. Sugarman, 118 R.I. 105, 108, 372 A.2d 508, 509 (1977) (quoting 11 Wright & Miller, Federal Practice and Procedure § 2948 at 465 (1973)) (defining "status quo" in the context of a restraining order). Under this definition, the status quo in this case would mean preventing further construction of the solar array, as the solar array did not exist prior to this controversy. Similarly, in Iggy's Doughboys, Inc., the Court granted an injunction that would prevent the defendant from opening a neighboring take-out window service in competition with the plaintiff. Iggy's Doughboys, Inc., 729 A.2d at 706. The injunction was granted because it would maintain the status quo, as the defendant did not currently have a take-out window, and its present business would not be interfered with until there was a determination of the merits of the case. Id. Here, because there is not currently a commercial solar array on the Lots, the status quo will be maintained only if the Plaintiffs' requested injunction is granted.
A preliminary injunction requiring the Defendants to cease construction of the solar array would prevent further progress of the project until a final and formal determination of the rights of the parties and the merits of the controversy can be made. Therefore, the Plaintiffs have satisfied the final prong, and the preliminary injunction is granted.
IV
Conclusion
Considering that each prong required for the issuance of a preliminary injunction has been met by the underlying facts of the case, this Court holds that the Plaintiffs are entitled to injunctive relief. The Court therefore grants the Plaintiffs' request for the issuance of a preliminary injunction. Counsel shall submit an appropriate order for entry and are further directed to confer with each other and with the Court for the purpose of selecting a date for an evidentiary hearing.