Davis v. Town of Exeter, 011321 RISUP, WC-2019-0228

Docket Nº:C. A. WC-2019-0228
Opinion Judge:Taft-Carter, J.
Party Name:ASA S. DAVIS, III Plaintiff v. TOWN OF EXETER, MARTINA E. BALIGIAN a/k/a MARTINA E. MCKENNA, or her Successor, Trustee of the Living Trust Agreement of Martina E. Baligian-1996, as the same may be amended, MARK R. IANNUCCILLI and ROSEMARY J. IANNUCCILLI Defendants
Attorney:For Plaintiff: James P. Howe, Esq.; John O. Mancini, Esq. For Defendant: James P. Marusak, Esq.; Marc Desisto, Esq.; Mark and Rosemary Iannuccilli, pro se; Martina Baligian, pro se.
Case Date:January 13, 2021
Court:Superior Court of Rhode Island

ASA S. DAVIS, III Plaintiff

v.

TOWN OF EXETER, MARTINA E. BALIGIAN a/k/a MARTINA E. MCKENNA, or her Successor, Trustee of the Living Trust Agreement of Martina E. Baligian-1996, as the same may be amended, MARK R. IANNUCCILLI and ROSEMARY J. IANNUCCILLI Defendants

C. A. No. WC-2019-0228

Superior Court of Rhode Island, Washington

January 13, 2021

For Plaintiff: James P. Howe, Esq.; John O. Mancini, Esq.

For Defendant: James P. Marusak, Esq.; Marc Desisto, Esq.; Mark and Rosemary Iannuccilli, pro se; Martina Baligian, pro se.

DECISION

Taft-Carter, J.

Before this Court for decision is the Town of Exeter's Motion to Dismiss Asa S. Davis, III's Second Amended Complaint for lack of subject matter jurisdiction and/or failure to exhaust administrative remedies. The motion was converted and treated as one for summary judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. In the motion, the Town of Exeter (Town) asks this Court to grant summary judgment in their favor on all counts against it in the Second Amended Complaint dated November 8, 2019. Asa S. Davis, III (Plaintiff) objects to the Town's motion. Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13 and 8-2-14, as well as Rule 56.

I

Facts and Travel

This case arises from a dispute over the legal status of Estate Drive, a road in the Town of Exeter.

Plaintiff is the owner of a 109.35-acre parcel of real property located in the Town of Exeter and designated as AP 36, Block 2, Lot 2, Ten Rod Road (the Property). (Sec. Am. Compl. ¶ 6.) The Plaintiff has owned the Property since May 23, 1997. Id. The Property is zoned RU-4. (Hawkins Aff., Ex. 12). There are no existing buildings on the site. The Plaintiff has previously applied for permits allowing him to construct a house as well as a barn on the Property. (Sec. Am. Compl. ¶ 34.)

The Plaintiff is a member of DuTemple Solar LLC (DuTemple). Id. ¶ 7. Plaintiff and DuTemple filed an application with the Town's Planning Board to install a solar voltaic field on Plaintiff's Property. Id. ¶ 8. On April 11, 2019, the Town's Planning Board denied the solar field application for failure to provide "proof of adequate, permanent and safe physical vehicular access to a public street as required." (Hawkins Aff., Ex. 12.) The Town's Zoning Board unanimously upheld the Planning Board's decision regarding Plaintiff's solar field application on July 1, 2019. Id. at Ex. 15. In the application, Plaintiff alleged that he could access the site of the solar voltaic field by way of Estate Drive. Id. at Ex. 12.

Estate Drive is a road that was constructed in connection with a subdivision in the Town known as "Exeter Village." (Sec. Am. Compl. ¶ 10.) It "is an improved, paved road with Cape Cod berms (curbs)" as well as appropriate drainage infrastructure. (Mattscheck Aff. ¶ 15.) The road "runs in a southerly direction from Ten Rod Road (Route 102) to a cul-de-sac, and then from the cul-de-sac to the northern boundary of [Plaintiff's] property." (Sec. Am. Compl. ¶ 12.) "The land between the Estate Drive cul-de-sac and Plaintiff's property line . . . consist[s] of unimproved woodland" and "has always been covered by trees and other vegetation." (Mattscheck Aff. ¶ 18.)

Estate Drive was accepted and certified as a public road by the Exeter Town Council on November 5, 2001. (Sec. Am. Compl. ¶ 10.) When Estate Drive was being planned and constructed, "it was intended by the developer and the Town that it would end in a 'temporary' cul-de-sac and that a 'paper street' also qualifying as a 'stub street' extending south of the cul-de-sac would be dedicated to the Town and reserved for the possibility of future development." (Def Mem. at 3; see also Mattscheck Aff. ¶¶ 17-21, 27-33.) The land between the end of the cul-de-sac and Plaintiff's property line is alleged to be a "paper street" that "has never been improved, . . . has never been maintained by the Town, and . . . has never been certified and accepted as a public road by the Town Council." Id. at 3; see also Mattscheck Aff. ¶¶ 34-35. Furthermore, the "paper street" "has never been amenable to vehicular travel because it has always been covered by trees and other vegetation." (Mattscheck Aff. ¶ 37.)

In 2018 Plaintiff excavated a dirt pathway "through the woodlands from his property line to the Estate Drive cul-de-sac in the approximate location of the 'paper street.'" (Def. Mem. at 3; see also Mattscheck Aff. ¶¶ 44-47.) The Plaintiff, before undertaking such excavation, failed to apply "to the Town to improve the paper street to Town standards or to have it certified and accepted by the Town Council as a public road." (Mattscheck Aff. ¶ 43.) The Town became aware of the excavation and creation of a path through the woods at the end of Estate Drive when the Plaintiff called the Public Works Director for the Town to complain about a fallen tree on the pathway. Id. ¶ 48.

Upon discovery of the excavated path, the Town, on March 1, 2019, facilitated and placed a concrete barrier across Estate Drive. (Sec. Am. Compl. ¶ 22.) The barrier was erected just south of the cul-de-sac and completely prevented the Plaintiff from using Estate Drive for access to and from his Property. Id. ¶¶ 22-23. On March 7, 2019, the Plaintiff attempted to move the concrete barrier in order to "re-establish" his use of Estate Drive. Id. ¶ 24. While the Plaintiff was trying to remove the concrete barriers, the Town served him with "correspondence from Francis P. DiGregorio, the Vice President of the Exeter Town Council, ordering [Plaintiff] to 'cease and desist your operations on Town of Exeter property.'" Id. ¶ 25.

The Plaintiff then brought this action against the Town seeking a declaration that Estate Drive is a public road that runs to the boundary of Plaintiff's Property, that Plaintiff has the right to use the full length of Estate Drive, and that Plaintiff has a right of access from his Property to Estate Drive. (Sec. Am. Compl. at 1.) Plaintiff is also seeking injunctive relief to prevent the Town from denying the Plaintiff the use of Estate Drive for development applications, enjoining the Town from blocking Estate Drive so that it cannot be used as a road, and enjoining the Town from blocking Plaintiff's access to his Property from Estate Drive. Id.

In response, the Town filed this motion to dismiss for failure to exhaust administrative remedies and/or lack of subject matter jurisdiction. The Court converted the Town's motion to a summary judgment motion.1

On September 1, 2020, a hearing was held by this Court via WebEx to consider the Town's converted summary judgment motion for failure to exhaust administrative remedies and/or lack of subject matter jurisdiction. Prior to the hearing, the parties filed supplemental memoranda in support of their respective positions. The Court now renders its decision.

II

Standard of Review

When deciding a motion for summary judgment, the trial justice must keep in mind that it '"is a drastic remedy and should be cautiously applied.'" Steinberg v. State, 427 A.2d 338, 339-40 (R.I. 1981) (quoting Ardente v. Horan, 117 R.I. 254, 256-57, 366 A.2d 162, 164 (1976)). "Thus, '[s]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the [C]ourt determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law.'" Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Education, 93 A.3d 949, 951 (R.I. 2014) (quoting Peloquin v. Haven Health Center of Greenville,

LLC, 61 A.3d 419, 424-25 (R.I. 2013)). However, only when the facts reliably and indisputably point to a single permissible inference can this process be treated as a matter of law. Steinberg, 427 A.2d at 340.

During a summary judgment proceeding, the Court does not pass upon the weight or credibility of the evidence. See DeMaio v. Ciccone, 59 A.3d 125, 130 (R.I. 2013). When determining whether a genuine issue of material fact exists, the Court reviews "pleadings, affidavits, … and other similar matters … in the light most favorable" to the nonmoving party. Saltzman v. Atlantic Realty Co., Inc., 434 A.2d 1343, 1345 (R.I. 1981). In order to show it is entitled to judgment as a matter of law, the "'nonmoving party bears the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions."' Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013) (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)).

III

Analysis

The Town argues that Plaintiff's Second Amended Complaint should be dismissed in its entirety because the Plaintiff has "fail[ed] to comply with the local administrative process and exhaust his administrative remedies prior to filing suit." (Def. Mem. at 10.) The Town specifically argues that the undeveloped portion of Estate Drive is not a public road and that Plaintiff has failed to apply for the proper permits-road opening permit or curb cut permit-that would allow him to gain access to his Property from the undeveloped portion of Estate Drive. Id. at 11-12. Consequently, the Town is contending that the Plaintiff is using this "action to short-circuit the administrative appellate remedies provided by ordinance and state enabling statutes." Id. at 12.

In response, Plaintiff argues that he does not need "to apply for a road opening permit as [the undeveloped portion of] Estate Drive has already been established as a public road, pursuant to the Town's regulations and Rhode Island law." (Pl. Suppl. Mem. at 6.) Accordingly, Plaintiff argues that...

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