Davis v. Town of Exeter
| Decision Date | 01 December 2022 |
| Docket Number | 2021-81-Appeal |
| Parties | Asa S. Davis, III v. Town of Exeter et al. |
| Court | Rhode Island Supreme Court |
Source of Appeal from Washington County Superior Court No. WC 19-228, Sarah Taft Carter, Associate Justice
For Plaintiff: John O. Mancini, Esq.
For Defendant: James P. Marusak, Esq.
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
This case came before the Supreme Court on October 4, 2022 pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The plaintiff, Asa S. Davis, III (plaintiff), appeals from a Superior Court judgment entered in favor of the defendants, the Town of Exeter (Exeter or town); 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; and Mark R Iannuccilli and Rosemary J. Iannuccilli, following the grant of summary judgment in accordance with Rule 56 of the Superior Court Rules of Civil Procedure. The town is the only defendant who responded to the plaintiff's appeal.[1] For the reasons set forth herein, we affirm the judgment of the Superior Court.
On May 23, 1997, plaintiff purchased in excess of one hundred acres of real property designated as AP 36, Block 2, Lot 2 in Exeter. This property fronts on Ten Rod Road (Route 102) with no driveway or other access from the public road.
The plaintiff is a member of DuTemple Solar LLC (DuTemple). In October 2018, plaintiff, along with DuTemple, filed a master plan application seeking to install a solar voltaic field on the property, to be known as DuTemple Solar. On April 11, 2019, the Town of Exeter Planning Board (planning board) denied the application, citing, in part, a lack of "adequate, permanent and safe physical vehicular access to a public street," as mandated by the town's code of ordinances. The plaintiff appealed this decision to the Town of Exeter Zoning Board (zoning board), which denied the appeal unanimously on July 1, 2019.
In his application for master plan review, plaintiff proposed access to the site by way of Estate Drive, an improved, paved road with Cape Cod berms,[2] that was constructed in conjunction with a subdivision known as "Exeter Village." The plaintiff's property abuts Exeter Village, but is not a part of the subdivision; nor does plaintiff's deed make reference to the Exeter Village plat map. The record discloses that Estate Drive runs in a southerly direction beginning at Ten Rod Road, with the improved portion terminating at a cul-de-sac. None of plaintiff's property abuts the Estate Drive terminus.
Estate Drive was officially accepted as a public road by the town council in November 2001. During the planning stage, the developer and the town planning board agreed that Estate Drive would end in a "temporary" cul-de-sac and that a "paper street"[3] between the cul-de-sac and plaintiff's property was to be reserved for possible future development. This land was designated on Map 273,[4] the subdivision map for Exeter Village, as a "future roadway extention [sic]." The area between the cul-de-sac and plaintiff's property line consists of unimproved woodland.
In order for plaintiff to gain access through Estate Drive, he was directed to apply for a road opening permit by the Town of Exeter Director of Public Works, Stephen Mattscheck (Mattscheck). The town has consistently asserted that the portion of land running from the terminus of the cul-de-sac to plaintiff's property is a paper street and that plaintiff did not make a proper application to open the road to the town's standards, nor has the paper street been certified and accepted by the town council as a public road. The plaintiff was directed by Mattscheck to apply for a proper road opening permit, which he refused, instead applying for a curb cut, which was denied by Mattscheck.[5]
Undaunted, plaintiff excavated a dirt passageway from the cul-de-sac to his property line in the approximate location of the paper street. The town became aware of the excavation of this pathway in January 2019, when plaintiff called to complain about a tree that had fallen on the area. In response, the town caused jersey barriers to be erected south of the cul-de-sac, blocking any access from Estate Drive. The plaintiff was undeterred. On March 7, 2019, plaintiff undertook efforts to move the concrete barriers and was served with correspondence from Francis DiGregorio, town council Vice President, ordering him to cease and desist removing concrete barriers "from public property at the end of Estate Drive" and "operating private equipment on [the] same public property."
The plaintiff filed this action, seeking a declaratory judgment 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 the right of access to his property. He also sought injunctive relief to prevent the town from denying his use of Estate Drive for development projects, from blocking a portion of Estate Drive so that it cannot be used as a road, and from restricting access to his property by way of Estate Drive. The town filed a motion to dismiss for lack of subject-matter jurisdiction and/or failure to exhaust administrative remedies.
The town's motion to dismiss was converted to one for summary judgment and considered in accordance with Rule 56 of the Superior Court Rules of Civil Procedure. On January 13, 2021, summary judgment was granted, and final judgment was entered on January 25, 2021. On appeal, plaintiff contends that the trial justice erred in ruling that the disputed land was a paper street and in finding that he had failed to exhaust his administrative remedies.
"[T]his Court reviews a grant of summary judgment de novo." Sullo v. Greenberg, 68 A.3d 404, 406 (R.I. 2013) (quoting Sacco v. Cranston School Department, 53 A.3d 147, 149-50 (R.I. 2012)). "Examining the case from the vantage point of the trial justice who passed on the motion for summary judgment, '[w]e view the evidence in the light most favorable to the nonmoving party, and if we conclude that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law[,] we will affirm the judgment.'" Id. at 406-07 (quoting Sacco, 53 A.3d at 150). "Although summary judgment is recognized as an extreme remedy, * * * to avoid summary judgment the burden is on the nonmoving party to produce competent evidence that 'prove[s] the existence of a disputed issue of material fact[.]'" Id. at 407 (quoting Mutual Development Corp. v. Ward Fisher & Co., 47 A.3d 319, 323 (R.I. 2012)). "However, summary judgment should enter against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case * * *." Correia v. Bettencourt, 162 A.3d 630, 635 (R.I. 2017) (quoting Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016)).
The heart of this matter is whether the undeveloped land between the cul-de-sac on Estate Drive and plaintiff's property line is a public roadway. The plaintiff contends that the property in dispute is part of a contiguous public road that begins at Ten Rod Road, ends at his property line, and was properly dedicated to the town for public use.
"In order for there to be an effective dedication" of private property for public use, "two elements must exist: (1) a manifest intent by the landowner to dedicate the land in question, called an incipient dedication or offer to dedicate; and (2) an acceptance by the public either by public use or by official action to accept the same on behalf of the municipality." Robidoux v Pelletier, 120 R.I. 425, 433, 391 A.2d 1150, 1154 (1978).
A determination of whether an incipient dedication of a road has been made by a property owner requires a careful review of the plat upon which the designated area is depicted. Cases involving disputed ownership or access to a roadway or right of way "should be decided in accordance with our settled jurisprudence and should rise or fall by reference to the plat" itself. Newport Realty, Inc. v. Lynch, 878 A.2d 1021, 1042 (R.I. 2005). "Only after a finding that the lines and figures drawn on the development plan 'may be unclear as to their intended purpose,' * * * or capable of more than one meaning," should a factfinder undertake a careful scrutiny of "'all lines, figures, and letters that appear on the map as well as whatever pertinent evidence may be adduced by the litigants.'" Id. (quoting Robidoux, 120 R.I. at 434, 391 A.2d at 1155) (emphasis omitted). Significantly, "the fact-finder should examine the words or conduct on the part of the dedicator that reasonably tend to demonstrate his wishes" when making this conclusion, while assigning meaning to each element of the plat map. Robidoux, 120 R.I. at 433, 434, 391 A.2d at 1154, 1155 (emphasis added).
The plaintiff argues that constructing the unimproved portion of the roadway to plaintiff's property is all that is required for him to acquire access to his property by way of Estate Drive. It is plaintiff's contention that Map 273 does not bifurcate Estate Drive into two sections, one portion accepted as a public roadway and the other designated as a paper street, but instead creates a single public road accepted by the town that ends at the southern border of plaintiff's property. According to plaintiff, the designation of "future roadway extention [sic]" on the map demonstrated the developer's intent that the undeveloped portion could be improved at a later time,...
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