Narragansett Improvement Co. v. Wheeler

• Citation: 21 A.3d 430
• Decision Date: 27 June 2011
• Docket Number: No. 2009–88–Appeal.,2009–88–Appeal.
• Parties: NARRAGANSETT IMPROVEMENT COMPANY et al.v.Evelyn WHEELER et al.
• Court: Rhode Island Supreme Court

21 A.3d 430

NARRAGANSETT IMPROVEMENT COMPANY et al.

v.Evelyn WHEELER et al.

No. 2009–88–Appeal.

Supreme Court of Rhode Island.

June 27, 2011.

Michael A. Kelly, Esq., Providence, for Plaintiff.Michael Rubin, Department of Attorney General, for Defendant.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

Narragansett Improvement Company (Narragansett Improvement), one of three plaintiffs in the underlying action,¹ appeals from a Superior Court judgment in favor of the defendants, members of the Rhode Island Advisory Commission on Historical Cemeteries (advisory commission).² The judgment, which was entered pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure, emanates from an order granting the defendants' motion to dismiss certain counts of the plaintiffs' complaint. Narragansett Improvement argues before us that the trial justice erred in dismissing these counts because the advisory commission exceeded its authority, under G.L.1956 § 23–18.3–1, by “identifying” and “registering” certain features on the plaintiffs' property, located in the Town of North Smithfield, as historical cemeteries and by notifying the town as to the same. Narragansett Improvement contends that the advisory commission's actions violated the plaintiffs' procedural and substantive due process rights under the Rhode Island Constitution. Narragansett Improvement further asserts that the trial justice erred by not recognizing a slander of title claim against the defendants. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IStatutory Framework

Before setting forth the facts of this case, it may be beneficial to review the relevant statutory background. In 1991, the General Assembly enacted chapter 18.3 of title 23, thereby creating the advisory commission. Section 23–18.3–l(a) provides that the advisory commission was “created [as] a permanent advisory commission to study the location, condition, and inventory of historical cemeteries in Rhode Island and to make recommendations to the general assembly relative to historical cemeteries in Rhode Island.” (Emphases added.) The plain language of chapter 18.3 of title 23 does not vest the advisory commission with the power to determine which parcels of property constitute historical cemeteries, nor with the authority to register historical cemeteries.

A separate chapter of the General Laws, however, G.L.1956 chapter 18 of title 23, does deal with the registration of historical cemeteries. Section 23–18–11(c) states, in pertinent part, as follows:

“Whenever an unmarked cemetery or human skeletal material is inadvertently located during any construction, excavation, or other ground disturbing activity, * * * the building official of the city or town * * * shall be immediately notified. The building official shall, in turn, notify the state medical examiner and the Rhode Island historical preservation and heritage commission if the grave, cemetery, or skeletal material appears to be historic. Prior to the continuation of any further construction, * * * the property owner shall undertake an archaeological investigation to determine the boundaries of the unmarked cemetery and shall so inform the building official. In the event that the cemetery meets the criteria for a historic cemetery, the building official shall so advise the recorder of deeds of the city or town who shall record and register the cemetery in accordance with the provisions of § 23–18–10.1.” (Emphases added.)

Section 23–18–10.1, in turn, requires “the recorder of deeds in every city and town [to] record with an appropriate symbol all historical cemeteries located within the city or town, and [to] register these historical cemeteries on an official tax plat or similar instrument.” (Emphases added.) Therefore, under this statutory regimen, it is the recorder of deeds of a city or town, and not the advisory commission, who registers historical cemeteries located in that city or town.

IIFacts and Procedural History

We now turn to the pertinent facts of this case.³ The plaintiffs, Narragansett Improvement, UBS Realty, Inc., and Rankin Path Realty, LLC, are owners of property (the property) in North Smithfield. In November 2005, plaintiffs filed, with the North Smithfield Planning Board (planning board), a master plan application for a major land development project on the property. From September 2006 to August 2007, the planning board reviewed plaintiffs' application, including the issue of “whether the stone mounds found on the proposed site were burial mounds containing the remains of American Indians.” ⁴

The planning board was not the only governmental body concerned with plaintiffs' application for land development. In November 2006, Donald Gagnon, chairperson of the North Smithfield Conservation Commission (conservation commission), initiated e-mail contact with Evelyn Wheeler, chairperson of the advisory commission, concerning the possible presence of American Indian burial grounds on the property.⁵ E-mail communications between Mr. Gagnon and members of the advisory commission stretched over a period of about six weeks.

Then, in April 2007, the North Smithfield Town Council (town council) held a meeting, during which Mr. Gagnon presented Frederick F. Meli, Ph.D., an anthropologist and archaeologist.⁶ Doctor Meli informed the town council that he had studied the land that plaintiffs planned to develop and had found “significant historical artifacts and mound piles that [he] * * * thought * * * contain[ed] the remains of American Indians.” Thereafter, the town council unanimously approved a motion requesting that Dr. Meli, along with the conservation commission, “begin the process of defining and protecting the area [in question] and present it to the [p]lanning [b]oard for their review.” The council also approved a motion to “[r]efer this matter to the [p]lanning [b]oard for the purpose of recommending that no permit or further authority for construction, excavation or other ground disturbing activity * * * be permitted * * *.” Subsequently, in May 2007, the town council hired Dr. Meli “to conduct an archaeological study of a site adjacent to the proposed [development] site.” ⁷

The planning board, as part of its review process of plaintiffs' application for land development, held four informational meetings between December 2006 and August 2007. At a meeting on August 2, 2007, the planning board received the testimony of Ms. Wheeler. Ms. Wheeler, testifying on behalf of the advisory commission, provided the board with a letter, dated June 27, 2007, that she had sent to the conservation commission, which stated that the advisory commission “ha[d] been informed by the Providence County Commissioner [of the advisory commission], Edna Kent, of the two (2) new cemeteries which ha [d] been registered with the RI Historical Cemetery Database as NS 52 and NS 53.” Ms. Wheeler confirmed for the planning board that, indeed, two cemeteries “were identified and registered.” ⁸ Doctor Meli also testified at the August 2, 2007 meeting. After the board “voted to accept Dr. Meli as an expert to provide information on the identification of the stone mounds found throughout the proposed subdivision,” he testified that he was “95% certain that the stone mounds observed on the proposed [development site] are burial mounds due to the composition, size and shape of the mounds.” Doctor Meli also opined that a Public Archaeological Laboratory (PAL) report that plaintiffs had presented to the planning board, which had concluded that the stone mounds were not burial sites, was “at best cursory.” ⁹

On August 16, 2007, the planning board unanimously voted to deny plaintiffs' application for development on the land in question, and on November 15, 2007, it issued a written decision.¹⁰ In that decision, the planning board acknowledged receiving plaintiffs' 2001 PAL report, but noted that the report “offer[ed] no reference to historical data, empirical evidence or any other historical records to support [its] conclusions,” and that it was not prepared by credentialed authors. The board also noted that the PAL report's authors did not appear before it, and that Dr. Meli, who did testify before the board, critiqued the report at length. For all these reasons, the planning board “[found] the report to be of questionable accuracy” and did not rely on it in making its decision.

On October 24, 2007, while final approval of the planning board's written decision was pending, plaintiffs filed a complaint against defendants in Superior Court, seeking declaratory and injunctive relief, as well as damages. The plaintiffs alleged in their complaint that the advisory commission “registered” historical cemeteries on the property “without providing notice to the [p]laintiffs, without providing the [p]laintiffs with an opportunity to be heard, and without considering the 2001 PAL [r]eport.” The plaintiffs asserted that such “registration” was “an abuse of government power.” They further alleged that members of the advisory commission entered the property “without the consent, knowledge or permission of the [p]laintiffs.” The plaintiffs also pointed out that chapter 18.3 of title 23, the statute that created the advisory commission, “provides no means of process by which a property owner may be afforded a reasonable opportunity to be heard” or “to appeal a determination made by the [advisory commission] registering a historical cemetery.” The complaint contained seven counts: count 1 sought declaratory judgment on a violation, by the advisory commission, of the substantive due process clause of the Rhode Island Constitution; count 2 sought declaratory judgment on a violation of the procedural due process clause of the Rhode Island Constitution; count 3 sought a declaration that chapter 18.3 of title 23 is unconstitutional, both on its...