Westerly property owner files suit claiming airport overlay district is unconstitutional

Westerly property owner files suit claiming airport overlay district is unconstitutional

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WAKEFIELD — The owner of property adjacent to Westerly State Airport claims that the Airport Area Overlay District zoning regulations improperly designate his home to a hazard zone, and that the process leading to adoption of the regulations in January was legally flawed.

The lawsuit, recently filed on behalf of James Mascolo, argues that his property rights and right to due process granted under the U.S. Constitution were violated when the town failed to follow its own ordinance for how affected property owners must be notified when changes are being made to the municipal zoning regulations. The lawsuit specifically states that some property owners were notified of a public hearing prior to the regulations being adopted by first-class mail, but not by certified mail. The zoning ordinance requires both forms of notification.

The suit, which was filed on Feb. 22 in Washington County Superior Court, seeks an injunction prohibiting the town from enforcing provisions of the overlay district regulations against  Mascolo and asks a Superior Court judge to to invalidate the ordinance which contains the overlay district and declare it unconstitutional. The suit also seeks unspecified financial damages, for the town to pay Mascolo’s attorney fees and legal costs, and asks a judge to find the ordinance is not in compliance with the town’s Comprehensive Plan, which sets development and preservation goals and policies.

Mascolo’s attorney, Gregory Massad, said his client did not receive either form of notification and learned of the second night of the hearing while out of town. Kathleen Flynn, a lawyer in Massad’s law firm, attended the hearing and spoke on Mascolo’s behalf, but Massad said Flynn’s appearance was hastily arranged. The hearing, before the Town Council, started on Dec. 18 and continued on Jan. 22, the night the council ultimately adopted the overlay district regulations.

“Mr. Mascolo was not notified at all. At the last minute we were able to attend for him,” Massad said. “The ordinance was not advertised or noticed correctly and new information was developed in between the two hearing dates. And there’s a big difference between hearing about something and being properly notified of what’s actually going to be discussed and done.”

With proper notice to all impacted property owners, Massad said, more people would likely have attended the hearings and put more pressure on the council.

The alleged notice deficiencies violated Mascolo’s due process rights, the lawsuit claims. The suit also claims his property rights were violated by the town designating his Eagle Court property as part of a “confliction zone.” The term was coined by the town’s zoning lawyer, Nancy LeTendre, who has said it refers to areas where ground elevation combined with the town's 35-foot tall maximum building height restriction could result in a structure penetrating airspace that is regulated by the Federal Aviation Administration.

During an interview on Monday, Massad said Mascolo’s property is not included on the Rhode Island Airport Corporation’s Airport Layout plan or the first draft of the overlay district ordinance. The airport corporation manages the airport. Massad also said the ordinance failed to consider updated data provided by Stantec Inc., an engineering consultant hired by RIAC.

Additionally, Massad said, Mascolo’s property has never appeared as a potential area of concern on FAA documents.

The suit also claims the town violated the law by not including a map with notice of the hearing showing existing and proposed zoning district boundaries.

In a Feb 22 letter to Town Attorney William Conley Jr., Massad notes that the council proceeded with the second hearing and adopted the ordinance despite work to displace two of the airport’s four runways beginning on Jan. 3. Displacement of the runways, Massad said, changes the runway protection zone, a trapezoidal area established by the FAA that extends off the end of runways, and approach areas of the airport.

“Rather than consult the newest and most relevant data, and consider such effect, the Town Council plunged forward after an assurance from staff that nothing changed. It was mind numbing to hear the basis for the Town staff’s legal opinion that the RPZ and approach zones remained unchanged,” Massad wrote in the letter.

The letter also notes that the council proceeded despite concerns from local lawyer William Nardone and two councilors about whether the hearing was noticed properly. Nardone represents the Carpionato Group, the owner of Westerly Crosssings Shopping Center, which is located across Airport Road road from the airport.

Rather than designating Masolo’s property as part of a conflicition zone, Massad said the town should simply rely on its previously established zoning regulations, which require owners of property near the airport to solicit input on development plans from the FAA.

“To burden the properties with this stigma of a confliction zone is going to cause this property to have less value,” Massad said.

Massad also noted that the town approved all of the development around the airport before it adopted airport zoning regulations despite a requirement to have the regulations in place.

“The town allowed them to build and didn’t do what it was supposed to do until after the fact. Meanwhile, my client has a significant investment in the property,” Massad said.

Massad also represents several property owners who are suing RIAC, claiming it misused the eminent domain process when it tried to secure legal rights to remove trees on private property. The trees have been deemed to present a safety hazard for pilots, passengers, and those on the ground.

Conley could not be reached for comment.



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