Donato et al v. Town of Scituate et al
MEMORANDUM AND ORDER : the Court GRANTS the defendants Motion for Summary Judgment (ECF No. 24 ) on the plaintiffs federal claims but as to the state and local claims the Court declines to exercise supplemental jurisdiction and REMANDS the matter to the to the Rhode Island Superior Court sitting in Providence, for the counties of Providence and Bristol. So Ordered by District Judge Mary S. McElroy on 11/15/2023. (Potter, Carrie)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
DELIA DONATO, RICHARD
DONATO, MD CAPITAL LLC
CORPORATE ENTITY and
JANE/JOHN DOE CORPORATION,
TOWN OF SCITUATE, a Municipal
Corporation, THEODORE PRZBYLA,
as Treasurer, THE SCITUATE PLAN
COMMISSION and ITS INDIVIDUAL
MEMBERS: JEFFREY HANSON,
WILLIAM JASPARRO, GEORGE
MITOLA, NICHOLAS PIAMPIANO,
RICHARD PINCINE, DAVID
PROVONSIL, and GENE ALLEN,
C.A. No. 1:20-cv-00532-MSM-PAS
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
This matter brings to federal court a long running municipal land use process
dating back to 2007. Involved is a residential real estate development owned by the
plaintiff, MD Capital, LLC, and located off Nipmuc Road in Scituate, Rhode Island.
This subdivision, known as Nipmuc III, was initially proposed by David Annese of
Annese Construction, Inc., who shepherded the subdivision plan through the Town
of Scituate’s approval process until MD Capital acquired the property in December
The Town allows for “flexible zoning,” an option provided in the Comprehensive
Plan and codified in the Town’s Zoning Ordinances. See Town of Scituate, R.I. Comp.
Plan, § D-3.1.3; Code of Ordinances, App’x A, Art. IV § 12. Flexible zoning is a
voluntary option a developer may choose, allowing the developer to deviate from
certain zoning requirements. In exchange the Town receives land set aside for public
use. See Code of Ordinances, App’x A., Art. IV § 12(F). This is intended to advance
the Town’s interest in preserving its rural character and protecting its natural
environment. See Comp. Plan § D-3.1.3. But for all subdivisions—not just those
seeking the flexible zoning option—the Town ordinances also require dedication of
land for public purposes. Code of Ordinances, Ch. 14, Art. II § 14-28(f)(1)-(2). The
Town’s Plan Commission, however, has discretion to instead require the payment of
a fee-in-lieu of land dedication. Id.
It appears from the record that Mr. Annese chose flexible zoning at the
preapplication stage. (ECF No. 25 at 10.) The plan was approved at the master plan
stage and included 46 acres of open space to be deeded to the Town. Id. at 32-33.
The application then proceeded through the preliminary plan stage and the final plan
stage during which the Plan Commission determined that the plaintiffs must both
dedicate land to the Town and pay the fee-in-lieu of land dedication. Id. at 61. The
Plan Commission approved the plaintiffs’ final plan on August 15, 2017, and the
plaintiffs paid the fee-in-lieu of land dedication on April 20, 2018. Id. at 65, 69.
The plaintiffs received a cease-and-desist notice from the Town’s Planning
Administrative Officer, dated July 21, 2021, asserting that the plaintiffs had not
deeded to the Town land as a requirement of the flexible zoning regulations or the
“buffer area and easements,” which were a condition of approval. (ECF No. 16-1 at
The plaintiffs filed suit in Rhode Island Superior Court, alleging violation of
their due process rights; violation of the Takings Clauses of the United State and
Rhode Island Constitutions; and violation of state and local laws, including the Rhode
Island Comprehensive Planning and Land Use Regulation Act and the Town of
Scituate’s Code of Ordinances and Comprehensive Plan. The defendants removed
the matter to this Court on the grounds of federal question jurisdiction, pursuant to
28 U.S.C. § 1441. (ECF No. 1.)
The Court will include further relevant facts as necessary, below.
Presently before the Court is the defendants’ Motion for Summary Judgment
on the entirety of the plaintiffs’ Complaint. (ECF No. 24.) Summary judgment’s role
in civil litigation is “to pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.” Garside v. Osco Drug. Inc., 895 F.2d 46,
50 (1st Cir. 1990). Summary judgment can be granted only when the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.
The plaintiffs asserted in their Complaint that the requirement that they
dedicate land to the Town and pay a fee-in-lieu of land dedication for the same
development project violated state law and local ordinances, constituted a taking
without just compensation, and violated their right to due process. In response to the
instant motion, however, the plaintiffs shift and now argue that, individually, the
imposition of the fee-in-lieu and land dedication requirements violated local, state,
and federal law.
A. Takings Claim
The plaintiffs assert that the Town’s requirement of the open space dedication
was an unconstitutional taking in violation of the Takings Clause of the Fifth
Amendment to the United States Constitution, made applicable to the states by the
Fourteenth Amendment. 1 As noted, the open space dedication is a requirement of
the flexible zoning option provided in the Comprehensive Plan and codified in the
Town’s Zoning Ordinances. See Town of Scituate, R.I. Comp. Plan, § D-3.13; Code of
Ordinances, App’x A, Art. IV § 12.
The plaintiffs do not challenge the
constitutionality of the ordinance but instead argue that the Town’s Plan Commission
did not properly make findings of fact “that the land is being dedicated for the specific
purposes included in the Scituate Ordinances” and otherwise “failed to implement
the ordinance as intended.” (ECF No. 28 at 15.) But a “municipality’s violation of
state law, without more, is insufficient to pass as a violation of the federal
Although not mentioned in their Complaint, which was filed in state superior court
under that court’s pleading standard, the plaintiffs have since specified that they
bring their federal constitutional claims pursuant to 42 U.S.C. § 1983. (ECF No. 28
Constitution.” So. Cty. Sand & Gravel Co., Inc., v. Town of So. Kingstown, 160 F.3d
834, 839 (1st Cir. 1998). An examination of the plaintiffs’ arguments leads inexorably
to the conclusion that the takings claim is, at best, a claim for violation of state or
local law and not one that implicates the federal Constitution.
As such, the Court grants the defendants’ Motion on the takings claim.
B. Substantive Due Process
Substantive due process, a doctrine derived from the due process clause of the
Fourteenth Amendment, operates “to protect individuals from particularly offensive
actions on the part of government officials.” Gonzalez-Droz v. Gonzalez-Colon, 660
F.3d 1, 15-16 (1st Cir. 2011).
The bar for stating a claim for a due process violation
in a land use dispute is “a high one indeed.” Licari v. Ferruzzi, 22 F.3d 344, 350 (1st
Cir. 1994). This is a “rigorous” standard, reserved for “truly horrendous situations,”
because a “lesser standard would run the unacceptable risk of ‘insinuat[ing] the
oversight and discretion of federal judges into areas traditionally reserved for state
and local tribunals.’” Pagán v. Calderón, 448 F.3d 16, 33 (1st Cir. 2006) (quoting
Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992)).
“[E]ven the outright violation of state law by local officials ‘is a matter primarily of
concern to the state and does not implicate the Constitution’—absent ‘fundamental
procedural irregularity, racial animus, or the like.’” Roy v. City of Augusta, 712 F.2d
1517, 1523 (1st Cir. 1983) (quoting Creative Env’ts Inc. v. Estabrook, 680 F.2d 822,
833 (1st Cir. 1982)). Indeed, the First Circuit has held, “with a regularity bordering
on the monotonous, that the substantive due process doctrine may not, in the
ordinary course, be invoked to challenge discretionary permitting or licensing
determinations of state or local decisionmakers, whether those decisions are right or
wrong.” Pagán, 448 F.3d at 33.
The plaintiffs claim that the defendants violated their right to substantive due
process by requiring the open-space dedication because the Plan Commission “failed
to implement the ordinance as intended.” (ECF No. 28 at 15.) The plaintiffs argue
that there was no way that the Plan Commission could have imposed the land
dedication requirement in accordance with Section 14-28 of the Town’s subdivision
regulations and Article IV, Section 12(f) of the Town’s zoning ordinance. Id. This,
again, is an allegation of a violation of local law that does not give rise to a
constitutional claim. See So. Cty. Sand & Gravel Co., 160 F.3d at 839. The same can
be said for the plaintiffs’ claim regarding the fee-in-lieu requirement or the purported
inclusion of “comments” as conditions in the plan approval: the defendants failed to
properly apply local law. (ECF No. 28 at 16-17).
Next the plaintiffs argue that, along with the open space dedication
requirement, the Plan Commission, in the final plan decision, violated their
substantive due process rights when it required them to deed additional land to the
Town for the purpose of creating a “buffer area” and “easements” for a fire access
road. Id. at 17-18. The Final Plan decision, however, makes no mention of easements
or fire access roads. (ECF No. 28-19.) As such, there is no evidence to support the
plaintiffs’ contention that the Town required the plaintiffs to deed property for this
purpose in the approval process. The tree buffer is mentioned, but the Final Plan
indicates that this is not a separate dedication but is within the land otherwise set to
be the open space dedication. 2 Id.
But, in the July 21, 2021, cease-and-desist notice it sent to the plaintiffs, the
Town asserts that “the buffer area and easements directly associated with the
subdivision have not been deeded to the town, which was a condition of approval.”
(ECF No. 16-1 at 118 (emphasis in original).) To the extent that the Town was
incorrect that such a transfer was required, and this subsequent demand of that land
was erroneous, that is an error of state law, and is insufficient to establish a
See So. Cty. Sand & Gravel, 160 F.3d at 839.
defendants’ actions, even if contrary to state law, simply is not the type of “truly
horrendous” situation that meets the “rigorous” standard needed to invoke the
doctrine of substantive due process in this land use dispute. See Pagán, 448 F.3d at
33; Licari, 22 F.3d at 350. The Court therefore grants the defendants’ Motion with
respect to the substantive due process claims.
C. Procedural Due Process
“Procedural due process guarantees that a state proceeding which results in a
deprivation of property is fair ....” Licari, 22 F.3d at 347. To establish a procedural
due process claim, a plaintiff must demonstrate “ ‘a property interest as defined by
state law’ and  that the defendants deprived [it] of this property interest without
constitutionally adequate process.” García-Rubiera v. Fortuño, 665 F.3d 261, 270 (1st
Moreover, the plaintiffs agreed to a tree buffer at the hearing that resulted in final
plan approval. (ECF No. 25 at 64.)
Cir. 2011) (quoting SFW Arecibo, Ltd. v. Rodriguez, 415 F.3d 135, 139 (1st Cir. 2005)).
The plaintiffs first argue that the Town denied their right to procedural due
process because the Plan Commission failed to timely record its decisions on the
various plan stages within the twenty days required by R.I.G.L. § 45-23-67(a).
Indeed, throughout the process, the Plan Commission did not record its decisions for
months or even years after each ruling. The plaintiffs claim that this deprived them
of their right to appeal any of the Plan Commission’s decisions because it rendered
them unable to determine when the time to appeal began to toll. The Court finds this
unpersuasive to establish a procedural due process violation because the plaintiffs
did not lose their right to appeal once the decisions were recorded and the plaintiffs
have not identified any other way that they were aggrieved by this failure to timely
Indeed, once the decisions were recorded, Rhode Island law affords an
adequate process to challenge the timing of the Plan Commission’s recording. See
R.I.G.L. § 45-23-67(a).
The plaintiffs next assert that they were not afforded pre-deprivation process
before the issuance of the cease-and-desist notice. Each of the items mentioned in
the notice (buffer area, easements, land dedication), however, was addressed at
different points in the various hearings held by the Plan Commission. The plaintiffs
therefore did have an opportunity to be heard on these items and did not, from the
Town’s view, comply with the Plan Commission’s decisions. To the extent that the
Town was incorrect about what it decided, state law provides the plaintiffs with
adequate post-deprivation procedure to appeal. See R.I.G.L. § 45-23-67.
The plaintiffs therefore cannot sustain their procedural due process claims.
D. State-Law Claims
Having disposed of the plaintiffs’ federal claims, what remains are their statelaw claims. “A federal court exercising original jurisdiction over federal claims also
has ‘supplemental jurisdiction over all other claims that are so related to the claims
in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.’” Camelio v. Am.
Fed'n, 137 F.3d 666, 672 (1st Cir. 1998) (quoting 28 U.S.C. § 1367(a)). When a case
has been removed to federal court and the federal claim is disposed of before trial, it
is within this Court’s discretion to decide whether to keep the remaining state-law
claims or remand them. 28 U.S.C. § 1367(c). “‘In making these decisions, district
courts must examine the totality of circumstances,’ including considerations of
‘comity, judicial economy, convenience, fairness and the like.’” Legion Ins. Co. v.
Family Serv., Inc., 561 F. Supp. 2d 232, 239 (D.R.I. 2008) (quoting Che v. Mass. Bay
Transp. Auth., 342 F.3d 31, 37 (1st Cir. 2003)). However, “the balance of competing
factors ordinarily will weigh strongly in favor of declining jurisdiction over state law
claims where the foundational federal claims have been dismissed at an early stage
in the litigation.” Camelio, 137 F.3d at 672 (citing Rodriguez v. Doral Mortg. Corp.,
57 F.3d 1168, 1177 (1st Cir. 1995)).
This case is a zoning dispute. As noted by the defendants, who removed this
case to this Court, federal courts “do not sit as super zoning boards.” See Raskiewicz
v. New Boston, 754 F.2d 38, 44 (1st Cir. 1985). Land use disputes such as this one,
inherently local in nature, are best resolved by state and local tribunals. In the
interest of comity and a lack of independent jurisdiction, the Court will decline
jurisdiction over the plaintiffs’ state- and local-law claims and remand them to the
state court where the plaintiffs had chosen to bring them.
For the foregoing reasons, the Court GRANTS the defendants’ Motion for
Summary Judgment (ECF No. 24) on the plaintiffs’ federal claims but as to the state
and local claims the Court declines to exercise supplemental jurisdiction and
REMANDS the matter to the to the Rhode Island Superior Court sitting in
Providence, for the counties of Providence and Bristol.
IT IS SO ORDERED.
Mary S. McElroy
United States District Judge
November 15, 2023
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