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Supreme Court No. 2009-133-Appeal. (KC 08-914)

Town of Coventry v. Baird Properties, LLC.

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NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222-3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.

Supreme Court No. 2009-133-Appeal. (KC 08-914)

Town of Coventry v. Baird Properties, LLC.

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Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. OPINION Justice Goldberg, for the Court. This case came before the Supreme Court on October 27, 2010, pursuant to an order directing the parties to appear and show cause why the issues in this appeal should not summarily be decided. The defendant, Baird Properties, LLC (defendant or Baird) appeals from: (1) a Superior Court order enjoining the defendant and "its member," Michael Baird, from harassing the intervenors, James and Lee Steitz (intervenors or Steitzes), and their attorney, Nicholas Gorham (Gorham); (2) the denial of Baird's motion for a temporary restraining order against Gorham; and (3) the trial justice's finding that Baird was in contempt of a previously entered restraining order. After reviewing the memoranda submitted by the parties and counsel's arguments, we are satisfied that cause has not been shown; thus, the appeal may be decided at this time. We affirm. Facts and Travel This controversy arose from various zoning violations defendant committed on a large parcel of land on Gibson Hill Road in Coventry, Rhode Island. On January 2, 2008, Jacob Peabody (Peabody), associate town planner and zoning enforcement officer for

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plaintiff, the Town of Coventry (plaintiff or town), received a complaint that someone was "cutting trees, burying stumps, and strip[p]ing the topsoil from the property at the end of the improved section of Gibson Hill Road." Upon inspection, Peabody found that approximately two acres of land had been excavated--trees had been uprooted and a large hole had been dug and filled with stumps. Peabody issued a notice of violation to the property owner, Baird Properties, LLC, for failure to file an "approved soil erosion and sedimentation control plan," a requirement in Coventry for any planned change in grade or excavation of land. Baird was ordered to cease work on Gibson Hill Road until he submitted and received plan approval. Baird ignored this order. On February 19, 2008, Peabody returned to inspect the Gibson Hill Road property. He discovered that work was continuing in full force; topsoil was being excavated, loaded into trucks, and then transported to a business identified as "Route 3 Mulch and More." Peabody spoke with Baird on March 12, 2008, and Baird agreed to cease work until an approved plan was in place. Work temporarily stopped. On June 18, 2008--in response to a complaint--Peabody returned to inspect the property and discovered that excavation had again commenced at the site. Peabody issued a "Notice to Prosecute" on June 19, 2008, and scheduled a meeting the next day with Baird, Scott Moorhead (Baird's engineer), and Bruce Hagerman, the town engineer. Baird did not attend. In his absence, a plan was discussed that, according to Peabody, involved "proper erosion control measures, a construction entrance, stockpiling of loam on site and a restoration plan that would leave the site with a similar amount of loam prior to disturbance." Shortly thereafter, Peabody spoke with Baird about the proposed plan. However, Baird refused to return any topsoil to the site

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because he contended that he needed to sell the material to pay the mortgage on the property. On June 20, 2008, Peabody issued a "Cease and Desist Order" and a second "Notice of Violation." Undeterred, Baird continued to excavate the Gibson Hill Road property. On July 8, 2009, the town turned to the Superior Court, seeking injunctive relief against defendant. The plaintiff town sought: (1) a restraining order enjoining defendant from any and all excavation and/or earth-removal activity at the Gibson Hill Road property; (2) an order requiring defendant to file a "Soil Erosion and Sedimentation Control Plan;" (3) an order requiring defendant to file a restoration plan for the property; and (4) a $500 fine for each day the violations continued. That same day, abutting property owners James and Lee Steitz moved to intervene in reliance upon Rule 24 of the Superior Court Rules of Civil Procedure. The Steitzes argued that intervention was proper based on their status as an aggrieved party as defined in G.L. 1956

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