standing Courts

WAKEFIELD — The legal battle between four property owners who live near Westerly State Airport and the agencies that run the facility is set to resume this week when lawyers for both sides argue the merits of their respective cases.

Associate Justice Susan E. McGuirl on Wednesday morning will hear arguments on both sides of a motion to dismiss filed on behalf of the Rhode Island Airport Corporation and the state Department of Transportation in her court room in Washington County Superior Court. The state agencies are asking the judge to dismiss most of the claims filed on behalf of property owners, the Harriet Chappell Moore Foundation, Jacqueline Abberton, the Rutter Family Revocable Trust, and the Frances W. Kelly Trust.

The Moore Foundation and the other plaintiffs argue the transportation department does not have the legal authority to take avigation or airspace easements and therefore erred when it took avigation easements by eminent domain to gain the ability to clear trees from property owned by the foundation and the other three property owners. Gregory Massad, the East Greenwich lawyer who represents the property owners, also claims that if the judge determines the eminent domain proceeding was authorized, the proceeding was unlawful because it was motivated by an economic purpose and was not carried out under provisions of the state Home and Business Protection Act, which require development of a plan, a public hearing, and greater financial compensation for the easements.

The town, under the state Airport Zoning Act, has the authority to remove airport hazards, Massad argues. The transportation department’s eminent domain authority is limited when it comes to aviation, Massad argues, to taking land for airports and landing fields.

Harris K. Weiner, the lead attorney in the case for the transportation department and the airport corporation, argues the easements were needed to protect public safety by removing trees that are penetrating airspace that the Federal Aviation Administration has determined must be clear of obstacles for planes taking off and landing in the area. The state took a total of 15 avigation easements; the other property owners are not part of the lawsuit.

“Public safety is the paramount reason for avigation easements. This purpose is served by RIDOT’s condemnation of avigation easements on parts of the plaintiff’s land, and RIAC’s proposed limited tree removal, “ Weiner wrote in a supplemental brief filed in April supporting the state’s original dismissal motion.

Weiner argues the the town’s authority is limited to regulating the height of obstructions, while acquisition is left to the state.

The case started in February 2017 when Associate Justice Luis M. Matos granted an injunction to stop the tree clearing until a trial could be conducted on the points raised by Massad and his clients. There was very little activity in the case until last year, when it became clear that the state would mount a defense.

In his most recent brief in the case, Massad argues that the state’s dismissal motion is “a thinly veiled attempt to re-litigate issues previously decided by [Matos] ... The defendants have raised no new issues of law that require a dismissal ... The defendants seemingly adhere to the proposition that because they represent the executive branch of the government, their powers in these matters are unbridled and not subject to judicial oversight,” Massad wrote in a brief filed in April.

Massad also takes aim at the state’s legal tactics, saying he could find no legal precedent to establish RIDOT’s authority to take avigation easements despite the state’s claim of “ample precedent.” “The defendants have mischaracterized the law by arguing the state DOT has power over acquisition of land for ‘aviation purposes’,” Massad wrote in his brief.

The state, in its brief, says the FAA directed RIAC to take the avigation easements by eminent domain but Massad disputes this as well.

“...This is a tired and untrue representation ... FAA has no control off of airport property and the FAA wants the local zoning authorities to adopt land use policies compatible with airprort uses,” Massad wrote.

Weiner asks the judge to declare the state DOT is authorized to take avigation easements by eminent domain thereby leaving the plaintiffs to argue whether they were offered fair compensation for the easements.

In March 2018, RIAC shortened the end of Runway 7 by about 374 feet and the end of Runway 14 by about 587 feet as a result of its inability to remove the trees that are the subject of the case and others owned by property owners who are not disputing the eminent domain proceedings. According to Weiner, FAA will not permit RIAC to restore the runways to their previous length until the easements are acquired.

This article was edited at 1:55 p.m. on May 7, 2019 to correct a reference to the Federal Aviation Administration's authority in a quote from Attorney Gregory Massad's brief. The brief was quoted incorrectly in the original version of the article. Also, RIAC has the authority to take avigation easements for economic development and other purposes. In this case the plaintiffs argue RIAC took easements for economic development purposes but failed to follow the proper process.

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