standing Courts

WAKEFIELD — Deciding that lawyers for that Rhode Island Airport Corporation and the state Department of Transportation had relied too heavily on issues outside the scope of the original lawsuit filed on behalf of residents who live or own property near the Westerly State Airport, a Superior Court judge on Wednesday decided the motion to dismiss filed by the state should be converted to a motion for summary judgment.

The judge, Associate Justice Susan E. McGuirl, made her decision while listening to arguments in Washington County Superior Court from  Harris K. Weiner, the lead attorney in the case for the transportation department and the airport corporation. She then allowed Weiner to continue and later listened to arguments from attorney Gregory Massad, who represents the four Westerly property owners.

A motion for summary judgment asks a judge to determine that there are no facts in dispute and that the judge can rule in the case without a trial.

The property owners argue that the DOT, acting on behalf of the airport corporation, which runs the airport, violated state law when it took airspace easements, which are also called avigation easements, by eminent domain to gain access to the property owners' land in order to clear trees. The transportation department has the legal authority to exercise its eminent domain power to take land for airports and landing fields but not for airspace easements, Massad and the property owners assert.

Massad also argues that RIAC, a subsidiary of the Rhode Island Commerce Corp., the state's economic development agency, should have been required to initiate the eminent domain process under the rules for an economic development project, not as a transportation initiative. Eminent domain proceedings for economic development call for publication of a plan and a public hearing.

RIAC argues that the trees are hazardous and pose a threat to the safety of pilots, passengers and the public on the ground. Massad argues that state law gives the town the authority to address hazards and obstacles through state aviation law on airport zoning— a point McGuirl said will have to be resolved. Airport zoning regulations are developed by the towns where airports are located.

"Another significant issue is what is being taken here, and that is at least in part the airspace, and whether [the land acquisition statute] talks about airspace versus land and whether they're the same thing ... the only place I saw airspace being referred to is in the airport zoning statute. The role of Westerly with respect to airport zoning is an issue," the judge said.

Weiner said the DOT acted properly when it took the easements because the airport land acquisition law refers to runways as a "projection or extension for use as an approach zone" but the judge said the airport zoning law seems to give the town, not the state or its departments, authority to take air rights by eminent domain.

Massad said the laws are not ambiguous. "It is very clear that the towns control what happens off of  airport property. The legislature wanted it that way," he said.

From the time the original lawsuit was filed in 2016, the state has argued that the property owners' only recourse is to question whether eminent domain was used for a public purpose and whether the amount of money the state offered to pay for taking the avigation easements was enough.

McGuirl addressed the state's position, saying, "I think they have the right and standing in this court to have this court adjudicate their argument. Their argument is the proper entity did not take the easements and I think they have the right to challenge that. The state cannot act without any challenge. That's not the way our democracy works in most cases."

The judge also asked Weiner, in his future court filings and arguments, to address why the taking of the easements should not be viewed as an expansion of the airport, an argument Massad has frequently made.

The law clearly defines the transportation department's authority, Massad said. "It's not for all purposes aeronautical, it's for an airport and a landing field, that's the limit of their power," he said.

The tree clearing project is currently on hold until the lawsuit is resolved. Because the trees were not removed, RIAC shortened two of the runways at the airport. Massad asserted that reducing the runways has not caused significant problems and has occurred at other airports in the state. "Flying is still safe," he said.

Seven other Westerly property owners agreed to the financial offers made by RIAC for airspace easements and are not part of the lawsuit.

The judge asked Weiner to file a supplemental memorandum by June 14 and gave Massad until July 5. She said additional oral arguments would be heard in July or August.

dfaulkner@thewesterlysun.com

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