East Greenwich Sued by Blu on the Water in Federal Court - UPDATED

East Greenwich Sued by Blu on the Water in Federal Court - UPDATED

Blu on the Water is suing the Town of East Greenwich in federal court over the recent sound ordinance approved by the Town Council.

The 30-page complaint, filed by attorney Jeff Gladstone, alleges that the sound ordinance is “illegal and unconstitutional” — and singles out Blu in particular.

SLIDES: Read Full Complaint Below

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“We had requested the opportunity to come in and talk about the issues before the council acted — and they didn’t want to hear from us,” Gladstone told GoLocalProv on Thursday.

The lawsuit claims, "The Town’s Sound Amendment makes it impossible to run long-standing, allowed commercial uses in the waterfront Commercial Highway district within these restrictive limits. The Sound Amendment is unconstitutionally vague as it gives the Town Council free reign to terminate BLU’s license based on an undefined standard and has knowingly created a situation where BLU cannot operate its lawful business and not violate the disparately applied standards in the Sound Amendment. The enforcement of the Sound Amendment would also constitute an unconstitutional taking, insofar as ANY commercial operation in this Commercial Waterfront District would violate the Town’s Sound Amendment because of the existing ambient sound conditions at the property and the unattainably low sound levels established by the Town."

The suit alleges that the town’s sound amendment “singles out BLU for different, more restrictive treatment than any other business located in a Commercial Highway zone in the Town.”

“A conversation among patrons of BLU in its parking lot would violated the Town’s Sound Amendment, thus imposing a wholly unreasonable standard,” the suit alleges. “East Greenwich is the only municipality in the State of Rhode Island that utilizes an unreasonable dbC scale with the Town selectively and disparately applies ONLY in its waterfront area.

“BLU has never been cited or violating the Town’s zoning or other Town ordinances and only seeks to continue its commercial activities that have been ongoing for nearly four decades,” states the suit.

The suit seeks four areas of relief:

A declaration that the Sound Amendment is ultra vires, illegal, unconstitutional, and void in whole or in part;

B. Preliminary and permanent injunctive relief restraining the Town and its agents from enforcing the Sound Amendment;

C. Damages, costs and attorneys’ fees as provided by applicable Federal and State law, including but not limited to all damages for a taking of BLU’s property.

D. Punitive damages against the Town of East Greenwich arising out of the actions of the Town Council and their agents; and

 

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Last March, GoLocal reported, Battle Over Noise Levels at East Greenwich Bars and Restaurants Heats Up.

BLU wrote on Facebook at the time:

The new ordinance calls for a sound decibel limit of 60 - that’s about the norm for casual conversation (that’s a fact - Google it). We’ve spent tens of thousands of dollars on sound engineers, sound system limiters, sound barriers and other sound proofing materials all in the name of being the best neighbor we possibly can be. 

Now, the town seeks to unjustly harm our business and your experience as a customer solely to appease the very vocal few - the very vocal few, mind you, who will not be satisfied until live outdoor entertainment is all but gone. Jobs will be lost.

In the lawsuit filed this week, Gladstone states that the approved sound amendment “is unconstitutionally vague as it gives the town free reign to terminate BLU’s license based on an undefined standard and has knowingly created a situation where BLU cannot operate its lawful business.”

The suit seeks relief for violations of the Fifth and Fourteenth Amendment of the United States Constitution. 

 

Town Responds

East Greenwich Town Manager Andrew Nota responded on Thursday afternoon. 

"Earlier today, the Town of East Greenwich received notice of a complaint brought in US District Court, on behalf of local business, BLT, LLC, doing business as Blu on the Water “BLU”, located at 20 Water Street in East Greenwich.  In the complaint, the Town was named as the sole defendant.   The Town in conducting a comprehensive review of its local noise ordinance and other related concerns as expressed by residents, provided for an open and transparent dialogue that took place over several months.   This managed public process provided the opportunity for all interested parties, including businesses and residents potentially impacted by the contemplated changes to the ordinance, to provide direct information, comment, expert testimony, business and economic information as well as other perspectives that they felt were important for the Town Council to consider in there deliberation," said Nota. 

"As an important part of our business community, we’re disappointed that the owners of BLU, have opted to select the path of litigation, rather than implementing any number of sound mitigation improvements to their facility that may have provided the necessary relief and compromise needed to provide for a broader community enjoyment of our very active waterfront.   The Town remains confident that the recent amendments to the noise ordinance will withstand legal scrutiny and we look forward to continuing this conversation and in defending the ordinance in court," said Nota.

This story was first published 2/13/20 2:03 PM

Updated 2/14/20 7:14 AM