Narragansett 2100 v. The Town of Narragansett

• Decision Date: 09 November 2022
• Docket Number: C. A. WC-2021-0448
• Parties: NARRAGANSETT 2100, Plaintiff, v. THE TOWN OF NARRAGANSETT; CHRISTINE SPAGNOLI, in her capacity as Narragansett Finance Director, JESSE PUGH, in his capacity as a President of the Narragansett Town Council; SUSAN P. CICILLINE BUONANNO, in her capacity as a Member of the Narragansett Town Council, EWA DZWIERZYNSKI, in her official capacity as Town Council Member, DEBORAH KOPECH, in her official capacity as Town Council Member, and PATRICK MURRAY, in his official capacity as Town Council Member, Defendants.
• Court: Rhode Island Superior Court

NARRAGANSETT 2100, Plaintiff,
v.
THE TOWN OF NARRAGANSETT; CHRISTINE SPAGNOLI, in her capacity as Narragansett Finance Director, JESSE PUGH, in his capacity as a President of the Narragansett Town Council; SUSAN P. CICILLINE BUONANNO, in her capacity as a Member of the Narragansett Town Council, EWA DZWIERZYNSKI, in her official capacity as Town Council Member, DEBORAH KOPECH, in her official capacity as Town Council Member, and PATRICK MURRAY, in his official capacity as Town Council Member, Defendants.

C. A. No. WC-2021-0448

Superior Court of Rhode Island, Washington

November 9, 2022

For Plaintiff: Joelle C. Rocha, Esq.

For Defendants: James M. Callaghan, Esq.

DECISION

TAFT-CARTER, J.

Before this Court for decision are Plaintiff's, Narragansett 2100, Motion for Summary Judgment with respect to Counts I and II of Plaintiff's Complaint and Defendants'- Town of Narragansett (the Town), Christine Spagnoli, in her capacity as Narragansett Finance Director, Jesse Pugh, in his capacity as a President of the Narragansett Town Council, Susan P. Cicilline Buonanno, in her capacity as a Member of the Narragansett Town Council, Ewa Dzwierzynski, in her official capacity as Town Council Member, Deborah Kopech, in her official capacity as Town Council Member, and Patrick Murray, in his official capacity as Town Council Member-Cross Motion for Summary Judgment as to Counts I and II. Jurisdiction is pursuant to

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G.L. 1956 §§ 9-30-1, 45-24-71 and Rule 56 of the Rhode Island Superior Court Rules of Civil Procedure.

I

Facts and Travel

On June 15, 2020, the Narragansett Town Council (hereinafter the Council) instructed the Town solicitor to prepare an ordinance to govern student and other short-term rentals in singlefamily neighborhoods. (Compl. ¶ 15; Answer ¶ 15.) The proposed ordinance (hereinafter the 2020 Three-Student Ordinance) provided that no more than three college students shall occupy a dwelling or dwelling unit unless the building is owner occupied. (Compl. ¶ 18; Answer ¶ 18.) The Council unanimously voted to refer the 2020 Three-Student Ordinance to the Narragansett Planning Board (hereinafter the Board) on June 29, 2020. (Compl. ¶ 16; Answer ¶ 16.)

After reviewing the 2020 Three-Student Ordinance, the Board submitted its findings and recommendations to the Council on August 11, 2020. (Pl.'s Mot. Summ. J. (Pl.'s Mot.) Ex. D, at 1.) The Board found that the 2020 Three-Student Ordinance may be consistent with three of the purposes of zoning. Id. at 7. Specifically, the Board determined that the ordinance may be consistent with: (1) promoting public health, safety and general welfare; (2) providing for a range of uses and intensities appropriate to the character of the Town and reflecting current and future needs; and (3) providing for the control of noise pollution. See id. at 6. However, the Board also found that the ordinance was inconsistent with the 2017 Narragansett Comprehensive Plan. Id. at 9. The Board therefore unanimously voted to disapprove of the 2020 Three-Student Ordinance. (Compl. ¶ 21; Answer ¶ 21.)

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The Council conducted a remote hearing on August 17, 2020 using the video conferencing service Zoom. (Compl. ¶ 19; Answer ¶ 19.) Plaintiff, a group of concerned landlords,^[1] submitted letters in opposition to the ordinance. (Compl. ¶ 23; Answer ¶ 23.) At the hearing, many members of the public voiced opposition to the ordinance. (Compl. ¶¶ 24-26; Answer ¶¶ 24-26.) The public was instructed to raise their hands to indicate their desire to speak, but the meeting was closed before everyone was afforded the chance to be heard. Id. Despite this, the Council adopted the 2020 Three-Student Ordinance on August 24, 2020. (Compl. ¶ 30; Answer ¶ 30.)

Plaintiff, along with other interested parties, subsequently filed suit challenging the ordinance. See Narragansett 2100, Inc. v. The Town of Narragansett, No. WC-2020-0353, 2021 WL 2327266, at *1 (R.I. Super. June 1, 2021). On June 1, 2021, this Court declared that the 2020 Three-Student Ordinance was void ab initio and ultra vires for failing to comply with § 45-24-53. See id. at *6. This Court found that the Council did not give all members of the public who wished to speak the opportunity to do so. See id.

Two weeks later, the Council voted to schedule a public hearing on an identical ordinance, the 2021 Three-Student Ordinance. (Compl. ¶¶ 32, 40, Ex. A; Answer ¶ 32.) The 2021 Three-Student Ordinance was not referred to the Board for findings and recommendation. (Compl. ¶¶ 33-34; Answer ¶¶ 33-34; Pl.'s Mot., Ex. H.) Therefore, there were no findings and recommendations made regarding the 2021 Three-Student Ordinance. (Compl. ¶ 35; Answer ¶ 35.) Prior to the public hearing, Plaintiff sent its opposition to the 2021 Three-Student Ordinance to the

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Council. (Compl. ¶ 36; Answer ¶ 36.) The Council conducted a public hearing on August 18, 2021 to discuss the ordinance. (Compl. ¶ 37; Answer 37.) On that day, the Council voted in favor of the first passage of the 2021 Three-Student Ordinance by a vote of 3-2. (Compl. ¶ 38; Answer ¶ 38.) The Council then voted in favor of the second passage of the ordinance by a vote of 3-2 on September 7, 2021. (Compl. ¶ 39; Answer ¶ 39.)

Plaintiff initiated this lawsuit on October 5, 2021, asserting two counts-Count I is an appeal pursuant to § 45-24-71, and Count II is a request for a Declaratory Judgment pursuant to the Uniform Declaratory Judgments Act. (Compl. ¶¶ 41-53.) Plaintiff subsequently filed a motion for summary judgment requesting that this Court enter an order in its favor or alternatively enter a declaratory judgment as to Counts I and II of their Complaint.^[2] (Pl.'s Mot. 1.) Defendants filed a cross-motion for summary judgment on August 3, 2022. (Defs.' Cross Mot. 1.) This Court now renders its Decision as to both motions.

II

Standard of Review

The Rhode Island Supreme Court has cautioned that, "[s]ummary 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). The Court examines the factual evidence contained in "the pleadings, depositions, documents, electronically stored information, answers to interrogatories, and admissions on file, together with the affidavits," Super. R. Civ. P. 56(c), but the parties may

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not rest on mere allegations or denials contained in the pleadings. See Loffredo, 274 A.3d at 790. Once the movant has alleged the absence of material factual issues, the opposing party has an affirmative duty to provide evidence of the existence of material factual disputes. Id. A court will only grant a motion for summary judgment when the competent evidence, viewed in the light most favorable to the non-moving party, "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as [a] matter of law." Super. R. Civ. P. 56(c); see also Andrade v. Westlo Management LLC, 276 A.3d 393, 399-400 (R.I. 2022).

III

Analysis

A

Count II: Declaratory Relief

The Zoning Enabling Act (the Enabling Act) sets forth the procedure for the adoption of zoning ordinances. See § 45-24-51. Section 45-24-51 of the statute provides:

"The city or town shall designate the officer or agency to receive a proposal for adoption . . . of a zoning ordinance .... Immediately upon receipt of the proposal, the officer or agency shall refer the proposal to the city or town council, and to the planning board . . . for study and recommendation .... Where a proposal for adoption. . . of a zoning ordinance . . . is made by the city or town planning board . . . the requirements for study by the board may be waived; provided, that the proposal by the planning board includes its findings and recommendations pursuant to § 45-24-52." Id. (emphasis added).

Upon receipt of the proposal, the planning board must report their findings and recommendations to the town council within forty-five days. Id. These findings must include: (1) a statement of the general consistency of the proposal with the comprehensive plan; and (2) "a demonstration of recognition and consideration of each of the applicable purposes of zoning, as presented in § 45-24-30."

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Section 45-24-52. The town council must then hold a public hearing and, within forty-five days, render a decision. Section 45-24-51.

Plaintiff is seeking a declaration that the 2021 Three-Student Ordinance is void ab initio and ultra vires because Defendants failed to comply with the procedural requirements of the Enabling Act. (Pl.'s Mot. 11-13; Compl. 9.) Plaintiff contends that by failing to refer the 2021 Three-Student Ordinance to the Board for study and recommendation, the Council violated the mandatory provisions of § 45-24-51 which requires zoning ordinance proposals to be immediately referred to the Board. Id. at 11-13.^[3] Defendants argue that the procedural failure to refer the 2021 Three-Student Ordinance to the Board should not automatically render the resulting ordinance void. (Defs.' Opp'n Mem. 14.) Defendants contend that the referral requirement is directory, rather than mandatory. (Defs.' Opp'n Mem. 18.) Consequently, Defendants urge the Court to uphold the ordinance because the Town substantially complied with the requirements of § 45-2452 by referring an identical ordinance to the Board for study and recommendation the year prior. (Defs.' Suppl. Mem. 5.)

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1 Section 45-24-51, Directory or Mandatory

Defendants first contend that the referral provision is directory, rather than mandatory because it does not provide a sanction for non-compliance citing to Michael West &Michael West Builders, Inc. v McDonald, No. 06-6625, 2008 WL 4176767 (R.I. Super. Aug. 7, 2008), aff'd West v. McDonald, 18 A.3d 526 (R.I. 2011). (Defs.' Opp'n Mem. 18.) Contrary to Defendants' argument, the Michael West Builders, Inc. court did not find the statute...