Pound Hill Realty, LLC v. Town of N. Smithfield

• Docket Number: C.A. PC-1991-5374,PC-1999-1811
• Decision Date: 12 December 2023
• Parties: POUND HILL REALTY, LLC Plaintiff, v. TOWN OF NORTH SMITHFIELD Defendant.
• Court: Rhode Island Superior Court

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POUND HILL REALTY, LLC Plaintiff,
v.
TOWN OF NORTH SMITHFIELD Defendant.

C.A. Nos. PC-1991-5374, PC-1999-1811

Superior Court of Rhode Island, Providence

December 12, 2023

For Plaintiff: Thomas C. Plunkett, Esq. Thomas J. McAndrew, Esq.

For Defendant: Timothy J. Robenhymer, Esq., Louis V. Jackvony, III, Esq., David V. Igliozzi, Esq.

DECISION

PROCACCINI, J.

Before this Court is Pound Hill Realty, LLC's (Plaintiff)^[1] Motion for for Partial Summary Judgment requesting declaratory judgments estopping the Town of North Smithfield (the Town) from enforcing the Town's Zoning, Earth Removal, and Road Use Ordinances against Plaintiff's quarrying activities and trucks used to transport materials. This Court also decides the Town's Cross-Motion for Summary Judgment requesting the ability to require road use permits from Plaintiff, review and rule on Plaintiff's quarrying activities, and dismiss both the 1991 and 1999 Complaints. Jurisdiction is pursuant to Rule 56 of the Superior Court Rules of Civil Procedure.

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I

Facts and Travel

This case arises from various interactions in the 1990s and early 2000s between a sand and gravel supply company and the town where it operates, including several cease-and-desist letters, two litigative actions, and multiple Court Orders. After two decades of relative peace between the parties, this issue is once again before the Court to decide whether it should maintain the status quo by upholding previous Court Orders or remove judicial restrictions and allow the Town to enforce its Road Use and Land Use ordinances.

A. Early Years of Pound Hill Realty, LLC

In 1958, Carmine and Emma Pezza purchased two parcels of land: Plat 7, Lot 38 and Plat 10, Lot 1. (Pl.'s Mem. Supp. of Mot. for Partial Summ. J. (Pl.'s Mem.) Ex. A.) Carmine Pezza petitioned to change the zoning of both lots from residential to business and the Town Council approved. Id. After receiving approval, the Pezzas began quarrying on both lots, excavating materials like sand, gravel, and rock. Id. Carmine and Emma Pezza conveyed the property to the family business, C. Pezza and Son, Inc., in 1974. Id.

In 1979, the Town adopted an Earth Removal Ordinance. North Smithfield, R.I., Ordinances ch. 11, art. 4, § 33-44 (1979). The Earth Removal Ordinance established a system for permitting and approval of soil and earth removal operations, but per § 11-41, this section did not apply to pre-existing earth removal conducted on or before the date of

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enactment. Id. at § 11-41. In 1987, Leonard^[2] and Constance Pezza acquired another plot of land adjacent to their operations: Plat 7, Lot 4. (Pl.'s Mem. Ex. A (Pezza Aff. ¶ 9, Ex. 2).) The new lot was located in a residential area and zoned for residential uses. (Def.'s Mem. in Supp. of Mot. for Partial Summ. J. and Def's Cross Mot. for Summ. J. (Def.'s Mem.) Ex. X.) The Pezzas did not apply for an earth removal permit, zoning change, or use variance for the new lot. Id. at 10-11, Ex. Z, Ex. AA. However, Plaintiff began blasting and excavating the new lot once it was purchased in 1987. (Pezza Aff. ¶ 11.) The Town merged the three lots into one lot for tax purposes: Plat 7, Lot 38. Id. ¶ 10, Ex. 3.

In 1990, the Town required Plaintiff to apply for a road use permit for their truck operations on Pine Hill Road and Pound Hill Road. (Pezza Aff. ¶ 12, Ex. 4.) Under Road Use Ordinances §§ 15-9 and 15-10, trucks or commercial vehicles weighing over 35,000 pounds and operating on certain roads (including Pound Hill and Pine Hill Road) are required to obtain a road use permit from the Town. North Smithfield, R.I., Ordinances ch. 15, art. 4, § 9-10 (1990). The Town granted the permit on June 4, 1990 with certain restrictions: "(1) Not to exceed 20 loads per day of Earth, Material, and Stone; (2) Limited from 8 a.m. to 5 p.m. Monday through Friday; (3) Vehicles to be used on attached list; and (4) Shall avoid use of Pine Hill Road and Pound Hill Road during bus runs." (Def.'s Mem. Ex. D.) The permit expired on December 31, 1990. Id. At a Town Council meeting on July 15, 1991, additional restrictions were approved for the road use permit requiring Plaintiff to post a flagger. (Pezza Aff. ¶ 13.)

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B. 1991 Road Use Litigation

In response to the Town's additional road use restriction of posting a flagger, Plaintiff filed a Complaint against the Town on August 2, 1991 seeking declaratory and injunctive relief. See Material Sand & Stone Corporation and C. Pezza & Son, Inc. v. Town of North Smithfield, C. A. No. PC-1991-5374 ("1991 Case"); Def.'s Mem. Ex. A.; Pezza Aff. ¶ 14, Ex. 5. Plaintiff filed an Amended Complaint on September 9, 1991. (Def.'s Mem. Ex. F.) The Town did not file an answer to either the Complaint or the Amended Complaint. (Def.'s Mem. at 2.) On August 2, 1991, the Court granted a Temporary Restraining Order (1991 TRO) for Plaintiff, enjoining the Town from enforcing conditions that were not within the terms of the operating permit-namely, the use of a flagger. Id. at Ex. C (Temporary Restraining Order, August 2, 1991, Needham, J.) The 1991 TRO remained in place and no further actions were taken by either party regarding the case. (Pl.'s Mem. at 4, Pezza Aff. ¶ 15; Def.'s Mem. at 3.)

C. Interactions Between Plaintiff and Town, 1991-1999

In 1991, Plaintiff obtained permission to use private roads as an alternative to access their property. (Pezza Aff. ¶ 16.) Plaintiff continued to use private roads through the 1990s and did not apply for further road use permits. Id. Although Plaintiff used Pine Hill Road and Pound Hill Road less frequently, it continued to pay and post bonds for road repairs. Id. On November 13, 1998, the Town's Building and Zoning Chief Inspector, Robert Benoit, sent a cease-and-desist letter to Plaintiff regarding the quarrying activities on original lots Plat 7, Lot 38 and Plat 10, Lot 1. Id. ¶ 17, Ex. 7.

After sending the letter, Chief Inspector Benoit visited the property and asked about delineating the boundary line of original plot Plat 7, Lot 4. Id. ¶ 18. Plaintiff

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informed him that the boundary lines of each plot could not be delineated because of the continuous excavating activities since its purchase of the adjoining property in 1987. Id. Plaintiff provided employee affidavits to Chief Inspector Benoit showing its excavation activities dated back to the 1950s and qualified as a pre-existing, non-conforming use. Id. ¶ 19, Ex. 8. On December 3, 1998, Chief Inspector Benoit rescinded the cease-and-desist order after reviewing the documents submitted by Plaintiff. Id. ¶ 20, Ex. 9.

D. 1999 Land Use Litigation

1. Complaint in Response to First Cease-and-Desist Letter

After the visit from Chief Inspector Benoit, Plaintiff filed a new Complaint against the Town on April 8, 1999. See Granite Realty Company v. Town of North Smithfield, C. A. No. PC-1999-1811 ("1999 Case"); Pl.'s Mem. Ex. M; Def.'s Mem. Ex. E. Plaintiff sought declaratory relief enjoining the Town from prohibiting excavating activities on its property. (Pezza Aff. Ex. 10.) Plaintiff argued it proved through documentation that all its excavating activities were legal non-conforming uses and the Town could not interfere with operations. Id. The Town did not respond to the Complaint. (Pl.'s Mem. at 8; Def.'s Mem. at 4.)

2. Merging with 1991 Road Use Case

While the 1999 Case developed, Plaintiff's private road use ended. (Pl.'s Mem. at 4; Pezza Aff. Ex. 11.) On October 9, 2001, Plaintiff amended the Complaint from the 1991 Case to request injunctive and declaratory relief on prior road restrictions. (Pl.'s Mem. Ex. E.) Plaintiff filed for a temporary restraining order in both cases on October

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18, 2001. (Def.'s Mem. Ex. G.)^[3] On November 9, 2001, Plaintiff amended the Complaint from the 1999 Case and added the road use restriction issue alongside the land use issue, again requesting injunctive and declaratory relief. (Pl.'s Mem. Ex. F; Pezza Aff ¶ 23, Exs. 12, 13.) The Town responded to the Amended Complaint for the 1999 Case on November 19, 2001. (Def.'s Mem. Ex. K.)

Plaintiff also applied for a new road use permit in 2001. (Pezza Aff. ¶ 22.) According to Robert Pezza, the permit application was set to be approved at a Town Council meeting on November 19, 2001, but on the day of the meeting the Town Clerk informed him it would not be heard until new Town Council members took office in December. Id. at Ex. 11. Fearing the lack of a road use permit would cause a threat to business, Plaintiff again requested a temporary restraining order in both cases on November 21, 2001. (Pezza Aff. ¶ 23; Def.'s Mem. Ex. L.)

The Court granted injunctive relief for Plaintiff on November 21, 2001 and entered an Order allowing Plaintiff to use the requested roads with certain restrictions. (Order, Nov. 21, 2001, Fortunato, J.) ("Road Use Order"). The Road Use Order required Plaintiff to: (1) post a bond with the Town at the amount set in 1991; (2) use roadways only between 7 a.m. and 5 p.m.; (3) not travel on roadways five minutes before or after scheduled pick-up or drop-off times for school buses; and (4) adjust truck traffic for school bus delays that may occur with inclement weather. (Pl.'s Mem. Ex. G.) The Road Use Order also instructed the Town to produce school bus stop schedules for Plaintiff. Id.

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A hearing was scheduled for December 14, 2001 to review Plaintiff's motion for injunctive relief further, but the hearing date passed without input from either party. Id.; Pl.'s Mem. at 5.

3. Motions in Response to Second Cease-and-Desist Letter

The case lay dormant over the next three years, until Chief Inspector Benoit issued a second cease-and-desist letter to Plaintiffs on November 1, 2004. (Pl.'s Mem. Ex. N.) The second letter stated that Plaintiff's excavating and blasting on Plat 7, Lot 4 was an enlargement of a pre-existing, non-conforming use. Id. Plaintiff filed for a temporary restraining order on...