Opinion
C. A. WC-2018-0636
05-13-2020
GREEN DEVELOPMENT, LLC A/K/A WIND ENERGY DEVELOPMENT, LLC v. TOWN OF EXETER; MARIA LAWLER, in her capacity as The Treasurer of the Town of Exeter; CALVIN A. ELLIS; FRANCIS PAUL DIGREGORIO; ROBERT M. CONN; MANUEL ANDREWS; DANIEL W. PATTERSON, in their official capacities as members of the Town of Exeter Town Council
Plaintiff: John O. Mancini, Esq. Nicholas J. Goodier, Esq., William M. Dolan, Esq., Elizabeth M. Noonan, Esq., Nicholas L. Nybo, Esq. John Tarantino, Esq. William K. Wray, Jr., Esq. Defendants: Stephen J. Sypole, Esq., Michael DeSisto, Esq., James P. Marusak, Esq.
Plaintiff: John O. Mancini, Esq. Nicholas J. Goodier, Esq., William M. Dolan, Esq., Elizabeth M. Noonan, Esq., Nicholas L. Nybo, Esq. John Tarantino, Esq. William K. Wray, Jr., Esq.
Defendants: Stephen J. Sypole, Esq., Michael DeSisto, Esq., James P. Marusak, Esq.
DECISION
LANPHEAR, J.
Before this Court are cross-motions for summary judgment. Plaintiff Green Development, LLC (Green Development) filed suit against the Treasurer of the Town of Exeter and the members of the Town of Exeter Town Council (Town Council) (collectively, Town) challenging a Moratorium Ordinance enacted by the Town Council that halted the review of applications submitted to construct solar energy fields within the Town of Exeter (Exeter). Green Development had applications pending with the Town and sought to have the moratorium declared invalid, sought injunctive relief, and alleged a violation of its due process rights. The Court denied Green Development's injunctive request and found for the Town regarding Counts One, Two, and Five of Green Development's Complaint in Green Development, LLC v. Town of Exeter, No. WC-2018-0636, 2019 WL 1348609 (R.I. Super. Mar. 21, 2019). The remaining issues are Counts Three and Four of the Complaint. In those Counts, Green Development alleges that regardless of the moratorium's validity, its rights vested under the Town Ordinances, prior to the enactment of the moratorium, allowed solar projects as a matter of right. Compl. ¶¶ 33-36. Concurrently, Green Development argues that the doctrines of equitable estoppel and detrimental reliance prevent enforcement of the moratorium against it. Id. ¶¶ 37-40. Both parties now move for summary judgment on Counts Three and Four.
I
Facts and Travel
The Court examined the applicable facts of this case carefully in Green Development, 2019 WL 1348609, at *1-4. As such, the Court merely summarizes those same facts here. Green Development is a developer of commercial-scale renewable energy projects, including solar power. Green Development sought to develop a number of solar energy fields in Exeter, a rural municipality with a large geographical land area. In order to construct these fields, Green Development needed approval of the Town Planning and Zoning Boards. In 2017 and 2018, Green Development submitted a number of applications to construct commercial solar energy fields in Exeter. However, in July 2018, the Town Council, by a vote of 3-2, passed an amendment to the Town Zoning Ordinances (Green Ordinance). This amendment changed the zoning restrictions in RU-3 and RU-4 zones (some fifteen lots) to allow the construction of solar projects as a matter of right--Green Development no longer needed permission from the Town Planning or Zoning Boards for its projects.
On September 4, 2018 the Town Council enacted an ordinance which effectively repealed the July 2018 Green Ordinance to prohibit all utility scale solar facilities in RU-3 and RU-4 zones. However, the Town Council later "rescinded" the vote on October 15, 2018. After the rescission retally, and the subsequent election of several new members, the Town Council enacted a sixty-day moratorium on applications for utility scale solar facilities. On February 4, 2019, as the moratorium drew to a close, the Town Council enacted yet another amendment-flatly prohibiting large scale solar projects in RU-3 and RU-4 zones.
The Town took the position that a councilperson voted incorrectly and therefore the vote was rescinded, and the zoning amendments for RU-3 and RU-4 zones remained unchanged. This is the subject of DiGregorio v. Lawler, WC-2018-0590.
When the moratorium was passed, four of Green Development's applications were deemed "complete" and were submitted to the Planning Board for approval; three had not been completed. The three applications that were not deemed complete are the subject of this litigation.
On December 11, 2018, Green Development filed the Complaint herein requesting the Court declare the moratorium invalid and enjoin the Town from enforcing it, or alternatively, to find its solar applications to be vested and therefore exempt from the moratorium. Lastly, Green Development requests the Court award it costs and reasonable attorneys' fees.
The Town also seeks attorneys' fees. See Answer 4.
This Court now rules on the remaining issues-Counts Three and Four of the Complaint which are, as stated, whether Green Development may proceed under the Green Ordinance because its rights have already vested and whether the doctrine of equitable estoppel and detrimental reliance prevent enforcement of the moratorium against Green Development. Both parties move for summary judgment on these issues.
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)). This Court will grant summary judgment "'only if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, [the Court] conclude[s] that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law."' Rhode Island American Federation of Teachers/Retired Local 8037 v. Johnston School Committee, 212 A.3d 156, 158-59 (R.I. 2019) (quoting Epic Enterprises LLC v. Bard Group, LLC, 186 A.3d 587, 589 (R.I. 2018)). 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 (citing DeNardo v. Fairmount Foundries Cranston Inc., 121 R.I. 440, 448, 399 A.2d 1229, 1234 (1979)). "'Furthermore, 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."' JHRW, LLC v. Seaport Studios, Inc., 212 A.3d 168, 175 (R.I. 2019) (quoting Cancel v. City of Providence, 187 A.3d 347, 349 (R.I. 2018)).
III
Analysis
A
Count III-Green Development's Vested Rights Claim
Green Development argues that its applications fall outside of the moratorium because they vested under the Green Ordinance. See Pl.'s Mem. Supp. Obj. Defs.' Mot. Summ. J. 14-19. Accordingly, Green Development posits that the applications should be reviewed under the Green Ordinance and not the contemporary Zoning Ordinances. Id. In support of its claim, Green Development alleges that its rights have vested under the Green Ordinance because all of its applications were "substantially complete" at the time the Green Ordinance was in place. Id. at 16-17. The Town argues to the contrary, stating that Green Development's rights have not vested because Green Development's applications never advanced beyond the "pre-application" stage. Defs.' Mem. Supp. Mot. Summ. J. 16.
Under the Rhode Island statute, applications for developments that "are substantially complete and have been submitted for approval to the appropriate review agency in the city or town prior to enactment of the new zoning ordinance or amendment …" are granted vested rights. G.L. 1956 § 45-24-44(a). Essentially, the statute protects applicants from having to conform to changing municipal ordinances by allowing their applications to be considered under the zoning ordinances in effect at the time of application, as long as these applications are "substantially complete." See id; Mollicone v. Aurecchia, No. PC-2010-6930, 2018 WL 6707584, at *7-8 (R.I. Super. Dec. 11, 2018) (explaining that applicants with substantially complete applications have the right to have their applications considered under the zoning ordinances in effect at the time of submission).
However, § 45-24-44 does not define "substantially complete;" it instead defers to each respective municipal definition, stating, "[z]oning ordinances or other land development ordinances or regulations specify the minimum requirements for a development application to be substantially complete for purposes of this section." Section 45-24-44(b). Therefore, the Court examines the Town Ordinances. See id. The Town Ordinances state the following:
"Where both planning board and zoning board approval is required for development, an application is vested on the date that the application is certified complete by the administrative officer (pre-application submissions are not a vesting stage of review). The application is vested under the zoning ordinance and regulations in effect at the time of the certification, not the date of the application." Exeter, R.I., Code of Ordinances, art. I, ch. 1.3, § 3.H(D).
Therefore, this Court, viewing the evidence before it in light of § 45-24-44 and the Town Zoning Ordinances, finds that Green Development's three applications at issue are not vested under the Green Ordinance. Green Development's applications are not vested because the applications at issue were not "certified complete." Summ. J. Hr'g Tr. 97:14-16. The applications were only in the pre-application stage, and to put it simply, vested rights do not apply at the pre-application stage. Exeter, R.I., Code of Ordinances, art. I, ch. 1.3, § 3.H(D); Summ. J. Hr'g Tr. 91:17-19. It is undisputed that the applications at issue did not receive a certificate of completeness from the Town. Summ. J. Hr'g Tr. 102:8-16. The Town Ordinances clearly state in plain language that applications must be "certified complete" in order to become vested. Exeter, R.I., Code of Ordinances, art. I, ch. 1.3, § 3.H(D); see West v. McDonald, 18 A.3d 526, 532 (R.I. 2011) (explaining that a court must give clear and unambiguous language its plain and ordinary meaning) (citing Ryan v. City of Providence, 11 A.3d 68, 71 (R.I. 2011)). As such, because the remaining applications were not certified compete, they are not vested; consequentially, they are not entitled to be considered under the Green Ordinance. See id.
Green Development alleged that the Town Planner, Ms. Ashley Sweet (Ms. Sweet), placed Green Development's applications on a "shelf," meaning that she purposely ignored them so they would be deemed incomplete by the time the moratorium was enacted. Pl.'s Mem. Supp. Obj. Defs.' Mot. Summ. J. 20. Regarding timing, § 45-23-40 mandates that a planning official has twenty-five days to determine whether an application is "complete" or "incomplete." Section 45-23-40(b). If a planning official fails to make this determination within the allotted time period, an application will automatically be deemed "complete," unless it is lacking necessary information. Section 45-23-36(b).
Green Development's contention overlooks a number of factors-Exeter is a small Town with a small municipal government; it was given an influx of applications for major land developments, all of which had to be reviewed by Ms. Sweet, the only Town Planner, who works part-time. Green Development, 2019 WL 1348609, at *1. The evidence shows that Ms. Sweet diligently undertook her task; further, her labelling of four of Green Development's applications as "complete" runs contrary to Green Development's accusation and is persuasive of her good faith. Id. at *2.
Further, Green Development cannot take objection with Ms. Sweet's failure to make a decision on its applications within the twenty-five-day time period as enumerated in § 45-23-40(b). The evidence demonstrates that Green Development voluntarily chose to hold its applications in abeyance in order to attempt to facilitate a change in the Zoning Ordinances through legislative means. Summ. J. Hr'g Tr. 90:11-13. If an applicant consents to postponing the consideration of an application, the time period for review is stayed until the application is deemed complete. Section 45-23-36(d). Here, Green Development voluntarily froze the clock-it cannot now take issue with Ms. Sweet's failure to label its applications as complete. See id.
Green Development's three remaining applications were not vested under the Green Ordinance. The Zoning Ordinances clearly require certificates of completeness to be issued in order for an applicant's rights to vest, which never occurred.
B
Count IV-Green Development's Estoppel Claim
Alternatively, Green Development pleads the doctrine of equitable estoppel and substantial reliance in support of its contention that it should be allowed to proceed under the Green Ordinance. See Compl. Green Development argues that "a subsequent amendment to a zoning ordinance cannot impair rights existing under a previous ordinance when the holder of such rights has incurred substantial obligations in good-faith reliance upon the previous ordinance." Pl.'s Mem. Supp. Obj. Defs.' Mot. Summ. J. 27 (quoting Mesolella v. City of Providence, 439 A.2d 1370, 1373 (R.I. 1982)). The Town counters that the Town cannot be estopped (1) because Green Development was never issued any applicable permits; (2) because of changes occurring during the legislative process; and (3) because Green Development has shown bad faith. Defs.' Mem. Supp. Mot. Summ. J. 12-17.
The granting of equitable relief in zoning is extraordinary and will not be granted except in the rare instance where the equities are clearly balanced in favor of the party seeking relief. Greenwich Bay Yacht Basin Associates v. Brown, 537 A.2d 988, 991 (R.I. 1988). Equitable estoppel is appropriate, however, to estop a municipality where a property owner incurs substantial obligations in good faith reliance on actions or omissions of that municipality. See Shalvey v. Zoning Board of Review of City of Warwick, 99 R.I. 692, 696-97, 210 A.2d 589, 592 (1965); A. Ferland & Sons, Inc. v. Zoning Board of Review of City of East Providence, 105 R.I. 275, 278-79, 251 A.2d 536, 538 (1969). The elements of equitable estoppel are: (1) good faith reliance; (2) on an act or omission of a municipality; (3) which induces a party to incur substantial obligations; (4) making it highly inequitable to enforce the zoning ordinance. West, 18 A.3d at 540 (citing 4 Rathkopf, The Law of Zoning and Planning, 65:29 at 65-57 to 65-61 (2010)).
There is little question that Green Development incurred substantial expenses. In other hearings, Green Development made clear that it expended significant monies to ensure that transmission lines ran near its prospective sites prior to submitting the local applications.
Here, Green Development is not entitled to relief via equitable estoppel. In West, our Supreme Court held that a landowner who sought to develop land but lacked a building permit when the local ordinances were changed did not give rise to circumstances warranting equitable estoppel. Id. at 540-41. The West Court held that "[p]urchasing property with the purpose of putting the property to a particular use in light of a then-existing zoning ordinance is a patently insufficient basis on which to invoke the doctrine of equitable estoppel." Id. at 541. The Court further opined that "[b]ecause statutes and ordinances are subject to change, they do not constitute a continuing representation by the municipality upon which citizens can indefinitely rely." Id. (citing Ocean Road Partners v. State, 612 A.2d 1107, 1111 (R.I. 1992)). It is notable that equitable relief is usually granted in cases where the necessary permits were once issued. See Tantimonaco v. Zoning Board of Review of Town of Johnston, 102 R.I. 594, 602, 232 A.2d 385, 389-90 (1967) (holding that applicant had substantially relied on a defective permit in good faith); see also Shalvey, 99 R.I. at 702, 210 A.2d at 595 (holding that remand was necessary to determine whether an applicant who was issued a permit acted in good faith in reliance on the permit).
Green Development urges the Court to look to Bourque v. Bruce, No. Civ.A. 03-6614, 2004 WL 877615 (R.I. Super. Apr. 13, 2004), where this Court found that equitable estoppel was an appropriate remedy for an applicant whose application was initially accepted, then rejected by the Town of Cumberland. Green Development suggests that the Bourque case applied equitable estoppel to pre-applications. However, a material difference between Bourque and the present matter is that the pre-application in Bourque was accepted, then suddenly rejected. Id. at *1-2. Here, the applications at issue were never given the green light by the Town. Green Development has only submitted its applications; this is not a case where the Town gave Green Development a thumbs-up, then reversed course and gave a thumbs-down. See id.
Bourque also commented that '"[s]peaking in general terms, where assurances have been given, representations have been made, or a permit was issued within the general powers conferred upon a municipal officer, the claim of equitable estoppel will be sustained."' Id. at *6 (quoting Rathkopf, supra, § 65:31). In this matter, none of these events was demonstrated.
Therefore, the elements of equitable estoppel have not been met-Green Development was never issued any permits or certificates for the three applications at issue, Green Development merely expected to carry out its project under the zoning ordinances in place at the time of application; at best, Green Development was a hopeful applicant; and as such, it may not rely on equitable estoppel. West, 18 A.3d at 541.
Further, while the Court does not make a finding of bad faith, it notes that Green Development was well aware of the abundance of opposition to its projects within Exeter. Green Development had full knowledge that Ms. Sweet and the Planning Board believed its applications violated both the Comprehensive Plan and the Zoning Ordinances. Green Development was also aware that a majority of the voters disapproved of Green Development's projects, as the councilmembers who approved the Green Ordinance were summarily voted out of office and the newly elected councilmembers immediately enacted the moratorium. Green Development cannot argue that it was entitled to rely on the existing Zoning Ordinances because the provisions of the Zoning Ordinances remained fluid, due in part to Green Development's attempt to alter them. See Summ. J. Hr'g Tr. 94:12-14. Nevertheless, Green Development knowingly charged ahead and fought a war of attrition against the ever-mounting opposition. See id. at 93:1-12.
Green Development is not entitled to equitable relief-none of the elements of equitable estoppel have been met. See West, 18 A.3d at 540.
IV
Conclusion
The Town's Motion for Summary Judgment is granted, and Green Development's Cross-Motion for Summary Judgment is denied. Green Development's applications did not become vested as they never were issued certificates of completeness; nor is the Town estopped from allowing Green Development to continue its projects because the applications never left the pre-application stage. Green Development's request for attorneys' fees is denied; the Court reserves on the Town's request for attorneys' fees.