Sunday, January 20, 2019

Westerly State Airport (KWST) tree-cutting lawsuit is headed back to court

WAKEFIELD — A legal battle that could affect future operations at the Westerly State Airport was expected to be back in court this week, with a Superior Court judge hearing arguments on behalf of the Rhode Island Airport Corporation, which manages the facility, and four property owners who have been fighting the state agency since early 2016.

A Washington County Superior Court judge is scheduled to conduct a hearing Tuesday in the case originally filed in March 2016 by property owners Hatsy Moore for the Harriet Chappell Moore Foundation; Jacqueline Abberton; the Rutter Family Revocable Trust; and Frances W. Kelly, trustee for the Frances W. Kelly Trust.

Represented by East Greenwich lawyer Gregory Massad, the property owners assert that the state Department of Transportation, acting for RIAC, cited the wrong provision of the state's eminent domain law when it took avigation easements to clear trees on their property. They also assert that only the town, not the state transportation department, has the legal right to take avigation easements for removing airport hazards, including trees.

Avigation refers to an easement related to the airspace above a property, and the right to operate aircraft and remove obstructions to their overflight. The plaintiffs are asserting, however, that RIAC's real purpose was economic development — to enhance or improve the airport's capabilities.

The property owners also assert that by filing condemnation notices, the transportation department had engaged in "slander of title," interference with property rights, and trespass.

The state agencies say they needed to take the easements to ensure that planes can fly safely as they approach and leave the airport. Two runways at the airport have been displaced, or effectively shortened, while RIAC awaits a final decision in the case and learns whether it can clear trees on the property owners' land. RIAC officials have said that in the future, additional trees in the area will also have to be cleared to comply with standards set by the Federal Aviation Administration.

The plaintiffs say that the condemnation notices allow the airport corporation to enter their land at any time to remove trees, and to subject them to "noise, dust, vibrations, fumes," which amount to "a private nuisance"

Additionally, the property owners have argued that their right to due process was violated. "The defendant Rhode Island Department of Transportation, acting in concert with and for the benefit of the defendant, Rhode Island Airport Corporation, exceed the scope of its statutory authority ... in preparing, publishing and recording the notice of condemnation and avigation easements," Massad wrote in a memorandum opposing the state agencies' motion to dismiss the lawsuit.

The case was largely dormant after Judge Luis M. Matos, in February 2017, granted an injunction preventing RIAC from clearing trees on the property owners' land until a trial could be conduced. But late last year RIAC representatives said they planned to resume their defense, and in November the transportation department and RIAC filed their dismissal motion.

The motion to dismiss resurrects some of the same arguments that the defendants made to Matos before he issued the injunction. The DOT and RIAC assert that the property owners' only recourse is to dispute the amount of money the state offered them as part of the eminent domain process.

If the "government increases its intrusion by flying substantially noisier planes within an existing easements or by flying at lower altitudes," the property owners could file a new petition for assessment  damages, Harris K. Weiner, the lawyer representing the two state agencies, wrote in the motion to dismiss.

Weiner also defended the eminent domain process used by the two state agencies. "Eminent domain has been a central governmental prerogative for centuries. It is crucial to effect many government purposes, especially safe public transportation," Weiner wrote.

The motion to dismiss the case also disputes the property owners' claim of a private nuisance, slander of title, trespass, and alleged civil rights violations.

Original article ➤


Anonymous said...

I bet the 4 property owners causing the airport all this grief probably moved there after the airport was already operational. Now they want the airport to shut down. Why the hell did you decide to live near an airport when you knew of the noise? I wouldn't have a problem with the airport cutting my trees if it kept the planes safe and from crashing into my house!

Jim B said...

It is a matter of perspective.

I know rural landowners and trust managers who will never allow anything to be decided by those outside their, or a clients' property.

Now consider, being near the water and relatively flat land makes it prime development real estate. The landowners' interest is to have the airport totally go away.

I suspicion from the look of the runway pavement and the airport having opened in 1939 (according to AirNav), those trees were not mature trees until recent times.

Those trees are marketable could be cut and sold to pay taxes, but I suspicion that is not in consideration.

Take it to court and see where it goes.

Anonymous said...

NIMBYism is a nuisance in some cases and indeed we have a court system to keep checks and balances.