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One Offshore Road Condominium Association, Inc. v. Breakwater Village Condominium Association, Inc.

Superior Court of Rhode Island

July 14, 2016

ONE OFFSHORE ROAD CONDOMINIUM ASSOCIATION, INC. and ONE OFFSHORE ROAD CONDOMINIUM, Plaintiffs
v.
BREAKWATER VILLAGE CONDOMINIUM ASSOCIATION, INC., BREAKWATER VILLAGE, INC. and PETER CONN, Individually and in his Capacity as President of BREAKWATER VILLAGE, INC., Defendants

         Washington County Superior Court

          For Plaintiff: Robert D. Goldberg, Esq.

          For Defendant: Christopher J. Zangari, Esq.

          James A. Donnelly, Esq. Carol A. Zangari, Esq.

          DECISION

          K. RODGERS, J.

         This case arises out of a dispute between two adjacent condominium associations located in the Point Judith area of Narragansett, Rhode Island, over access to an existing sewer line. Breakwater Village Condominium and Plaintiff One Offshore Road Condominium were both created by Defendant Breakwater Village, Inc. (Breakwater) and its President, Defendant Peter Conn. (Conn). Breakwater Village Condominium was developed first, as was its association of unit owners, Defendant Breakwater Village Condominium Association, Inc. (BVCA). One Offshore Road Condominium followed several years later, along with its association of unit owners, Plaintiff One Offshore Road Condominium Association, Inc. (One Offshore). One Offshore, joined by Breakwater and Conn, now seek a declaration that certain easement rights exist which entitle One Offshore to tie in to BVCA's existing sewer lines, as well as injunctive relief to enjoin BVCA from preventing One Offshore from entering onto the property of BVCA to exercise such rights.

         In accordance with Rule 65(a)(2) of the Superior Court Rules of Civil Procedure, a hearing on preliminary injunction was consolidated with the trial on the merits, [1] and the matter was heard without a jury over eight days between October 22, 2013 and February 28, 2014. A lengthy briefing period followed.

         Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13 and 9-30-1. For the reasons that follow, judgment shall enter in favor of Plaintiffs, Breakwater, and Conn.

         I

         Findings of Fact

         Having reviewed the evidence presented by both parties, the Court makes the following findings of fact.

         A

         The Development of Breakwater Village Condominium

         Breakwater is a Rhode Island corporation with a principal place of business at 1499 Ocean Road, Narragansett, Rhode Island, and is the developer of property located in Breakwater Village Condominium in the Town of Narragansett (the Town). Conn. is a shareholder of Breakwater and currently serves as its President.

         In 1991, Breakwater commissioned a survey plan of 59.70 acres of land that it owned, located in the Town at Assessor's Plat M, Lot 167, in the Point Judith area of the Town. The survey plan was prepared by Paul N. Robinson Associates, Inc. and dated April 1, 1991. The 1991 survey plan consisted of five numbered lots designated as Lot 1, Lot 2, Lot 3, Lot 4 and Lot 5. Most pertinent to the issues at hand, Lot 1 consisted of 7.14 acres and Lot 2 consisted of 19.99 acres. Lot 2 was designated as "subject to development rights" while Lot 1 was designated as "subject to development rights including the right to be withdrawn." The survey plan included the further breakdown of Lot 2 into 172 units and proposed roads within the boundaries of Lot 2.

         Shortly after the survey plan had been certified, Breakwater became the declarant of the Declaration of Condominium for Breakwater Village Condominium, dated May 7, 1991, and recorded in the Land Evidence Records for the Town on May 8, 1991 (the Breakwater Declaration). BVCA is a Rhode Island non-profit corporation established on June 28, 1991, pursuant to the laws of the State of Rhode Island. Breakwater Village Condominium is located on Lot 2, and BVCA is the association of the owners of the 172 units within Breakwater Village Condominium.

         1 Reservation of Rights in the Breakwater Declaration

         The Breakwater Declaration reserved certain easement rights to Breakwater, as the declarant, which it is now seeking to enforce. These rights are cross-referenced in several sections within the Breakwater Declaration.

         Section 1.2 of the Breakwater Declaration, entitled "Easements and Licenses, " states as follows:

"Easements and Licenses. Included among the easements, rights and appurtenances referred to in Section 1.1 above are the following easements and licenses:
"(a) SUBJECT TO rights reserved by the Declarant to grant at any time and from time to time easements to the Association, appropriate utility and service companies, cable television and governmental agencies and to others for adequate consideration for utilities and service lines.
"(b) SUBJECT TO riparian rights and water rights of others arising from any streams or man-made ponds crossing the Property.
"(c) SUBJECT TO drainage rights of others in the beds of any streams or bodies of water located on the Property.
"(d) SUBJECT TO an easement to The Narragansett Electric Company in Book 30 at Page 128.
"(e) SUBJECT TO utility easements as shown on the Plats and Plans running from Jupeter Street to Avenue D and from Wilderness Drive to Avenue D across Lot 4 of the Withdrawable Real Estate.
"(f) SUBJECT TO a Right of Way in Book 90 at Page 179.
"(g) SUBJECT TO such other easements as are reserved in Article 6 hereof." Joint Ex. 1, at 1-2.

         Article 6, Section 6.1 contains additional easements as referenced in Section 1.2, as well as the following:

"(b) The Units and Common Elements shall be, and hereby are, made subject to easements in favor of the Declarant, appropriate utility and service companies, cable television companies and governmental agencies or authorities for such utility and service lines and equipment as may be necessary or desirable to serve any portion of the Property. The easements created in this Section 6(b) shall include, without limitation, rights of the Declarant, or the providing utility or service company, or governmental agency or authority to install, lay, maintain, repair, relocate and replace gas lines, pipes and conduits, water mains and pipes, sewer and drain lines, drainage ditches and pump stations, telephone wires and equipment, television equipment and facilities (cable or otherwise), electrical wires, conduits and equipment and ducts and vents over, under, through, along and on the Units and Common Elements. …
"(k) All easements, rights and restrictions described and mentioned in this Declaration are easements appurtenant, running with the land and the Property, including (by way of illustration but not limitation) the Units and the Common Elements, and (except as expressly may be otherwise provided herein or in the instrument creating the same) shall continue in full force and effect until the termination of this Declaration, as it may be amended from time to time." Joint Ex. 1, at 8, 11 (emphasis added).

         Additionally, Section 6.2 states the following express reservation of easement rights:

"The Declarant reserves the right, at any time and from time to time, to grant to any third party (including, without limitation, any entity affiliated with the Declarant or owned in whole or in part, by the Declarant), any license or easement in, on, over or through the Property, in addition to and not in limitation of those set forth above, which license or easement is determined by the Declarant, in its reasonable judgment, to be necessary for the development or improvement to the Property or any adjacent or contiguous real estate." Joint Ex. 1, at 12 (emphasis added).

         Article 2 of the Breakwater Declaration contains definitions pertinent to the issues in this case. "'Property' means the Property described in Section 1.1 above, less such portion of the Withdrawable Real Estate as shall be withdrawn from the Condominium at anytime or from time to time as provided herein." Joint Ex. 1, at 3. Section 1.1 further identifies the "Property" as referencing collectively all the Real Estate designated in Exhibit A, including Lots 1, 2, 3, 4 and 5, together with all buildings and improvements and subject to all easements, rights and appurtenances thereto. Joint Ex. 1, at 1, and Ex. A. "'Development Rights' means those rights which the Declarant has reserved to itself as set forth in Article 16 and elsewhere in this Declaration." Joint Ex. 1, at 2.

         Article 16, entitled "Development Rights and Special Declarant Rights, " in turn provides, in pertinent part:

"Section 16.1 Reservation of Rights. . . . Development Rights and Special Declarant Rights must be exercised within 20 years from the date this Declaration was recorded or such earlier time as the right to do so expires pursuant to the terms hereof or the [Rhode Island Condominium Act, G.L. 1956 §§ 34-36.1-1.01, et seq.], as applicable, or is terminated by the Declarant. . . . All of the Real Estate described on Exhibit D is subject to the Development Rights and Special Declarant Rights reserved in this Section." Joint Ex. 1, at 29-30.

         Exhibit D to the Breakwater Declaration, as referenced in Section 16.1, includes the metes and bounds descriptions of Lot 1, Lot 3, Lot 4, and Lot 5. Joint Ex. 1, at Ex. D.

         Finally, Section 16.2 of the Breakwater Declaration and Exhibit K thereto address future improvements to Breakwater Village Condominium and to Lot 1. See Joint Ex. 1, at 30-34 and Ex. K. Section 16.2(e) provides:

"This information is being provided to purchasers of Units in order that they understand that there are improvements to the Condominium which have yet to be completed and that they are purchasing a Unit with the full understanding that improvements will be made after they become Unit Owners. PURCHASERS WILL EXECUTE AT THE TIME OF THE CLOSING OF A UNIT, A DOCUMENT (ATTACHED AS EXHIBIT K) BY WHICH THEY ACKNOWLEDGE THAT THEY HAVE READ THE ABOVE SECTIONS REGARDING FUTURE IMPROVEMENTS AND DEVELOPMENT RIGHTS AND THAT THEY WILL NOT CAUSE ANY OBJECTIONS TO BE MADE WHICH WILL IN ANY WAY HINDER THE DECLARANT FROM CONSTRUCTING ANY IMPROVEMENTS, PURSUANT TO ABOVE SECTIONS 16.1 AND 16.2, AND THAT IF ANY OBJECTION SHALL BE MADE THAT THE UNIT OWNER SHALL BE LIABLE FOR ANY DAMAGES INCURRED BY THE DECLARANT AS A RESULT OF SAID OBJECTION AND THAT THE DECLARANT SHALL BE ENTITLED TO INJUNCTIVE RELIEF DUE TO THE FACT THAT THE DECLARANT WILL BE IRREPARABLY HARMED AND WILL HAVE NO ADEQUATE REMEDY AT LAW." Joint Ex. 1, at 33-34 (capitalization in original).

         Exhibit K, entitled "Breakwater Village Condominium Receipt, Acceptance and Waiver, " contains substantially the same language as that capitalized language contained in Section 16.2(e). Joint Ex. 1, at Ex. K. All unit owners and members of BVCA were required to and did execute Exhibit K at the time of closing on such individual units.

         B

         The Development of One Offshore Road Condominium

         In or about 2004, Breakwater sought to develop Lot 1 into another condominium complex pursuant to its reservation of development rights.[2] Breakwater became the declarant of the Declaration of Condominium of One Offshore Road Condominium, dated December 30, 2004, and recorded in the Land Evidence Records of the Town (One Offshore Declaration). One Offshore is a Rhode Island non-profit corporation established on March 2, 2005, pursuant to the laws of the State of Rhode Island, and it is the association of the owners of the thirty-nine units which comprise Lot 1. The One Offshore Declaration further permitted the maximum number of forty-two units to be created, six units being single-family residences and thirty-six units being campground units. Joint Ex. 4, at 1. The campground units are only permitted to be used from April 1 through November 30 of each year. Joint Ex. 4, at 12.

         Like the Breakwater Declaration, the One Offshore Declaration contains reserved rights that are cross-referenced throughout. Included among the "Development Rights and Special Declarant Rights" are "Additional Rights" which state the intention to undertake certain improvements to utilities within the One Offshore Road Condominium; namely, installation of new sewer lines. Joint Ex. 4, at 26-27. Consistent with the intention to undertake such improvements and Section 16.2(b) of the One Offshore Declaration, $15, 000 from the proceeds of the sale of each unit sold was put into escrow at the time of the closing to eventually fund such improvements. Joint Ex. 4, at 27. At the time of trial, Kathy Wilcox (Wilcox), a member of One Offshore and its Treasurer, testified that the account has $595, 000 in it.

         Also like the Breakwater Declaration, Article 6.1 of the One Offshore Declaration is entitled "Additional Easements" and provides, in pertinent part:

"(b) The Units and Common Elements shall be, and hereby are, made subject to easements in favor of the Declarant, appropriate utility and service companies, cable television companies and governmental agencies or authorities for such utility and service lines and equipment as may be necessary or desirable to serve any portion of the Property. The easements created in this Section 6(b) shall include, without limitation, rights of the Declarant, or the providing utility or service company, or governmental agency or authority to install, lay, maintain, repair, relocate and replace gas lines, pipes and conduits, water mains and pipes, sewer and drain lines, drainage ditches and pump stations, telephone wires and equipment, television equipment and facilities (cable or otherwise), electrical wires, conduits and equipment and ducts and vents over, under, through, along and on the Units and Common Elements. …
"(i) All easements, rights and restrictions described and mentioned in this Declaration are easements appurtenant, running with the land and the Property, including (by way of illustration but not limitation) the Units and the Common Elements, and (except as expressly may be otherwise provided herein or in the instrument creating the same) shall continue in full force and effect until the termination of this Declaration, as it may be amended from time to time." Joint Ex. 4, at 8-9, 10 (emphasis added).

         1

         The Ninth Amendment to Breakwater Declaration

         In conjunction with the One Offshore Declaration, Breakwater filed a Ninth Amendment to the Breakwater Declaration wherein the Declarant Breakwater sought to establish One Offshore as a single unit within BVCA. Through this Ninth Amendment, Breakwater removed Lot 1 from the "Withdrawable Real Estate" and added one additional unit to BVCA[3]; it then subdivided this one additional unit to accommodate all the units within One Offshore. Additionally, the Ninth Amendment clarified the rights of One Offshore and BVCA regarding easement access and association fees.

         BVCA filed a civil action against Declarant Breakwater and One Offshore seeking a judgment declaring the Ninth Amendment void pursuant to the Rhode Island Condominium Act, codified at §§ 34-36.1-1.01, et seq. (the Act). Another justice of this Court rendered a decision on November 23, 2010, granting BVCA's Motion for Summary Judgment and declaring the Ninth Amendment to the Breakwater Declaration invalid. Breakwater Vill. Condo. Ass'n v. Breakwater Vill., Inc., No. WC-2008-0017 (R.I. Super. Nov. 23, 2010) (Ninth Amendment Decision). Specifically, that decision determined that Breakwater Village Condominium and One Offshore Road Condominium were and remain separate and autonomous entities by virtue of their enabling Declarations and the provisions of the Act, and that the Breakwater Declaration and One Offshore Declaration do not allow for One Offshore Road Condominium to be inserted into Breakwater Village Condominium as provided in the Ninth Amendment. Id. at *5-6.

         C

         The Existing Sewer System Servicing BVCA

         Jeffrey Ceasrine (Ceasrine), Town Engineer for the Town since 1987 and licensed professional engineer, had direct supervision over the approval and installation of the existing sewer system located within Breakwater Village Condominium. Not only was Ceasrine familiar with the original low pressure sewer system prepared by the now-deceased Allen Easterbrooks (Easterbrooks) for Breakwater Village Condominium in the 1990's, but also he was familiar with and testified to the present components used in the Breakwater Village Condominium sewer system. As designed, BVCA's sewer system was estimated to handle 300 gallons per household per day, which is roughly two times the average water-consuming flow in the Town. It is a private sewer system maintained by and paid for by members of BVCA which ultimately connects with the Town's sewer lines for treatment through underground piping.

         The low-pressure sewer system designed by Easterbrooks required each connecting unit to have a grinder pump. Grinder pumps operate on demand, using a cutting apparatus and then ejecting sewage under pressure. The original sewer system called for each unit within the Breakwater Village Condominium to be serviced by a grinder pump manufactured by Environmental One (E/One). As E/One pumps installed throughout the units in the Breakwater Village Condominium needed to be replaced with time, members of the BVCA sought permission to utilize a different brand of grinder pump known as the Barnes pump. Under Ceasrine's supervision as Town Engineer, the specifications of the Barnes grinder pumps were considered and approved to be used in individual units within the Breakwater Village Condominium. The E/One pump is a low-pressure pump and the Barnes pump is a progressive cavity pump, but according to Ceasrine, they both provide the same result and it was determined that the use of Barnes pumps among other E/One pumps would not have a deleterious impact on BVCA's existing sewer system.

         D

         The Existing System at One Offshore Units

         Presently, One Offshore Road Condominium is serviced by an existing septic tank and leaching field, and each unit owner's waste is required to be transported by hand to that septic tank. As One Offshore Road Condominium is in close proximity to the Atlantic Ocean, and as soil conditions are also unfavorable, the area is not suitable for a properly designed individual sewage disposal system (ISDS). One Offshore residents are required to pump all human waste and wastewater generated from each residential unit into small capacity tanks located below each individual unit. Sewage from each unit at One Offshore is deposited into forty-gallon holding tanks that are then manually removed from the units for emptying. There are two alternatives by which these holding tanks are emptied: (1) the unit owner uses a blue tank to transfer the waste from the tank and transport it to the larger septic tank located in the common area of One Offshore Road Condominium; or (2) the unit owner hires an individual to collect the waste from each unit weekly who transports it to a so-called "honey wagon, " a large storage tank on wheels pulled by a tractor. Even with the latter alternative, which most residents elect to use, the blue bins are still required because some tanks need to be emptied more than once a week.

         Wallace Berard (Berard), a member of One Offshore and maintenance employee, testified that he is the individual who operates the honey wagon. Using a two-inch heavy duty hose, he transfers waste from the individual holding tanks beneath the residential units to the honey wagon, doing the same as he makes his way to each participating unit around the condominium complex until he gets to the larger septic tank where he again makes the transfer using the two-inch hose. Berard stated that there were significant problems associated with the honey wagon because there have been many spills, including major spills, at One Offshore Road Condominium; he testified that spills occurred almost monthly. Spills sometimes occur when hoses break, causing sludge to spray out onto the ground. Berard testified that when he cleans up spills, he has to attempt to clean it up with water from a nearby unit as much as he can, followed by bleach and water and spraying other chemicals because of the environmental hazard associated with sewage. Despite his efforts, he testified that the smell of any spill is awful. Moreover, he stated that even if no spill occurs, the odor ...


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