D'ELLENA v. Town of East Greenwich
2011 R.I. LEXIS 98
| R.I. | 2011Background
- Planning Board approved Legacy Woods eight-lot subdivision on December 5, 2001.
- May 5, 2004 Extension of Final Plan Decision added Condition 4: install water lines to bring water to the subdivision.
- January 7, 2004 attorney for D'Ellena appeared and advised staff report prompted water extension; D'Ellena agreed to the water condition.
- January 14, 2008 D'Ellena filed a petition for declaratory/injunctive relief alleging notice and Open Meetings Act deficiencies.
- September 11, 2008 Superior Court denied declaratory relief, finding waiver of objections to notice and no OMLO violations; judgment for Town.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of notice rights | D'Ellena did not waive defects in notice or OMLO rights. | Appearance and agreement at January 2004 meeting waived objections. | Waiver established; rights deemed relinquished. |
| Due process and notice validity | Procedural defects violated due process and notice requirements. | No due process violation; waiver forecloses challenge. | No due process breach; waiver controls. |
| Open Meetings Act compliance | Notice and OMLO requirements were not satisfied. | Waiver through appearance dispenses with objection. | Not reaching merits; waiver affirmed. |
| Effect of the May 5, 2004 water-condition amendment | Amendment violated statutory procedure for final decisions. | Procedural defects cured by waiver; merits not reached. | Not reached. |
Key Cases Cited
- Graziano v. Rhode Island State Lottery Commission, 810 A.2d 215 (R.I. 2002) (appearance at meeting waives notice defects)
- Ryan v. Zoning Board of Review of New Shoreham, 656 A.2d 612 (R.I. 1995) (appearance before board implies opportunity to present facts, waiving defects)
- Pacheco v. Nationwide Mutual Insurance Co., 114 R.I. 575 (R.I. 1975) (waiver defined as voluntary relinquishment of known right)
- Haxton's of Riverside, Inc. v. Windmill Realty, Inc., 488 A.2d 723 (R.I. 1985) (waiver through action or nonaction)
- Imperial Casualty and Indemnity Co. v. Bellini, 888 A.2d 957 (R.I. 2005) (waiver generally a question of fact)
- Lajayi v. Fafiyebi, 860 A.2d 680 (R.I. 2004) (waiver and credibility considerations in appellate review)