RI Supreme Court Denies Mandamus Because Removing Trees From Town Right-of-Way Was Discretionary Function

This post was authored by Amy Lavine, Esq.

The Rhode Island Supreme Court held in March that whether a town removed trees from a right-of-way in response to complaints from neighborhood residents was a matter properly characterized as a discretionary or executive function. The court therefore dimissed the plaintiff’s request for a writ of mandamus to compel the town to remove the trees, since mandamus is only appropriate to compel ministerial actions.

The disputed trees had been planted in 2010 by the owners of a neighboring property, without any permission or approval from the town and in violation of permits that had been issued for plantings on their side of the right of way. The trees had since become the subject of numerous complaints, but while several town officials had looked into the matter, they had not found any solution that was satisfactory to the neighbors who had planted the trees and all of the other neighbors who were unhappy with the trees.

The plaintiff was pro se and while she failed to state any specific cause of action that might entitle her to relief, the court nevertheless discerned that her complaint clearly sought an order in the nature of mandamus to compel the town to enforce its laws “by removing * * * all the trees and plants which were illegally planted within the Town’s street line.” The court found that such relief was unavailble, however, because the town’s decisions about right-of-way plantings were discretionary in nature and it had no ministerial duty requiring it to remove the trees. While the court found it “unfortunate” that the town still hadn’t found a solution for the disputed trees, it was ultimately up to the town chose how to respond to this problem and mandamus therefore wasn’t appropriate relief.

Nerney v. Town of Smithfield, 269 A.3d 753 (RI 3/4/22).