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Commerce Park Associates 1 LLC v. Przybyla

Superior Court of Rhode Island, Kent

June 19, 2014

COMMERCE PARK ASSOCIATES 1, LLC, ET AL.
v.
TED PRZYBYLA, In His Official Capacity As Finance Director of THE TOWN OF COVENTRY, ET AL.

Washington County Superior Court

For Plaintiff: Richard G. Riendeau, Esq.

For Defendant: Arthur M. Read, II, Esq.; Frederick G. Tobin, Esq.

DECISION

K. RODGERS, J.

The instant matter is before this Court for decision on cross motions following arguments while this Court was sitting in Kent County.[1] Commerce Park Associates 2, LLC (Commerce Park 2) and Commerce Park Associates 13, LLC (Commerce Park 13, and collectively, Plaintiffs), just two of seventeen named plaintiffs, seek partial summary judgment on Count I of the Second Amended Complaint. Defendant Town of Coventry (the Town) seeks dismissal of the Second Amended Complaint for failure to state a claim upon which relief may be granted. For the reasons that follow, both motions are denied.

I Facts and Travel

This controversy is one of a number of cases filed in Kent County Superior Court by Nicholas Cambio (Cambio), the manager of several related business entities which currently manages and largely owns the Centre of New England, a mixed-use development in the Town. The various related business entities (collectively, Commerce Park) have repeatedly challenged the Town's sewer tax assessments and contend that they are exempt from paying sewer tax assessments. A brief synopsis of the tortured history of litigation between Commerce Park and the Town, as well as the facts of the instant case, are summarized below.

The sewer assessment directed at Commerce Park 2 at issue here dates back to 1999. Commerce Park 2 owned the commercial building at 80 Centre of New England Boulevard. The Town imposed a sewer assessment in the amount of $49, 875 on that building. Commerce Park 2 made two initial payments totaling $3, 855.68, but then ceased payments. The Town has charged interest and penalties on the assessment amounting to over $115, 000.

In 2006, the Town imposed a sewer assessment of $49, 082 on a strip of retail shops located at 710-720 Centre of New England Boulevard owned by Commerce Park 13. Commerce Park 13 has failed to pay any amount of that sewer assessment which is at issue in this case. The Town has charged interest and penalties on the assessment amounting to over $75, 000.

The instant case was filed in December 2007, seeking declaratory judgment regarding the parties' rights and obligations under certain agreements reached between Commerce Park and the Town. Within two months thereafter, another lawsuit was filed by eight of the same Commerce Park entities named in this action, including Commerce Park 2 and Commerce Park 13, seeking relief from the Town's sewer assessments pursuant to 1997 R.I. Pub. Laws 330 and Art. V, Sec. 19 of Part II of the Town's Code of Ordinances. See Commerce Park Associates I, LLC, et al. v. Town of Coventry Sewer Assessment Board of Review, et al., C.A. No. KM 08-0262 (the 2008 Action). The 2008 Action remains pending.

In April 2011, Plaintiffs and others in the instant action filed a Second Amended Complaint. Count I, as amended, seeks declaratory relief declaring that the Town's sewer assessments against Plaintiffs' property are unlawful. Second Am. Compl., Count I. Plaintiffs offer nine bases upon which they seek declaratory relief in Count I: the parcels assessed are connected to sewer mains in West Warwick and not connected to sewer mains or interceptors in the Town; the sewer assessments violate state public laws by recovering maintenance and operations costs rather than construction costs; the parcels assessed receive no benefit from the sewer infrastructure; the sewer assessment recovers the cost of sewer infrastructure in other municipalities which was built years before the subject sewer assessments were imposed; the amount of the sewer assessments is disproportionate to any benefit conferred and therefore is inequitable; the sewer assessments violate state and local laws; the sewer assessments are, in fact, ad valorem real property taxes and have been imposed in violation of local laws governing procedure for such taxes; the sewer assessments bear no reasonable relationship to the cost to the Town of constructing sewer infrastructure; and the sewer assessments violate certain agreements, contracts, consent judgments and treaties between Plaintiffs and the Town. Id. at ¶ 155(a)-(i). It is Count I that is the subject of Plaintiffs' Motion for Partial Summary Judgment.[2]

In late October 2011, the Town undertook the process of conducting tax sales for the various properties owned by the Commerce Park entities based upon the nonpayment of sewer assessments. Commerce Park filed another suit seeking declaratory and injunctive relief, challenging the legality of the sewer assessments and enjoining the Town from selling the properties for nonpayment of the allegedly unlawful sewer assessments. See Commerce Park Associates 1, LLC, et al. v. Monique Houle, in her capacity as Tax Collector of the Town of Coventry, et al., C.A. No. KB 11-1434 (the 2011 Action). As in the instant case, Commerce Park alleged that they are exempt from paying the disputed assessments on the Centre of New England properties based upon various agreements and a certain consent judgment entered into between Commerce Park and the Town. The Town moved to dismiss that action based upon plaintiffs' failure to exhaust their administrative remedies. Another justice of this Court issued a bench decision on December 15, 2011, and granted the Town's motion to dismiss. That decision specifically found that the appeal process set forth in G.L. 1956 § 44-5-26 applies to all tax assessment cases, including the subject sewer assessments, and that Commerce Park's failure to adhere to that process warranted dismissal of the plaintiffs' complaint. That decision was appealed to the Supreme Court.

Prior to the Supreme Court's decision on appeal from the 2011 Action, the instant cross motions were presented to this Court. Plaintiffs continued to argue that they are exempt from paying the disputed assessments on the Commerce Park properties based upon various agreements and a certain consent judgment entered into between Commerce Park and the Town. Plaintiffs also maintained that, in any event, they did exhaust their administrative remedies before the Town's Sewer Assessment Board of Appeals (the Board of Appeals), which denied them relief. In support thereof, Plaintiffs submitted an Affidavit of Cambio and a February 25, 2008 decision by the Board of Appeals, see Cambio Aff., at Ex. 6, and further rely upon their timely appeal of the 2008 Action in challenging the Board of Appeals' decision. The Town, for its part, relied upon the same argument that had been accepted by another justice of this Court in the 2011 Action and its conclusive effect on this matter pursuant to the doctrine of res judicata.

On March 13, 2014, the Rhode Island Supreme Court issued its decision vacating the trial court's dismissal of the 2011 Action. Commerce Park Associates 1, LLC, et al. v. MoniqueHoule, in her capacity as Tax Collector of the Town of Coventry, et ...


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