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DeMarco v. Rhode Island Department of Transportation

Superior Court of Rhode Island, Washington

July 12, 2017

JOSEPH DEMARCO, RALPH DEMARCO and PAMELA FISETTE Plaintiffs,
v.
RHODE ISLAND DEPARTMENT OF TRANSPORTATION and STATE OF RHODE ISLAND Defendants.

         Washington County Superior Court

          For Plaintiff: Stephen M. Litwin, Esq.

          For Defendant: Maxford O. Foster, Esq.; Siobhan Stephens-Catala, Esq.

          DECISION

          STERN, J.

         Before the Court is Joseph DeMarco, Ralph DeMarco, and Pamela Fisette's (collectively, the DeMarcos or Plaintiffs) Verified Complaint for Declaratory Judgment. Plaintiffs request that this Court declare that the right of first refusal provisions found in G.L. 1956 §§ 37-7-3 and 37-7-4 apply only to the portion of real property once taken from Plaintiffs. The Rhode Island Department of Transportation (RIDOT) and the State of Rhode Island contend that such first refusal right applies to the entirety of surplus land. This Court's jurisdiction is pursuant to G.L. 1956 § 9-30-1.

         I Facts and Travel

         Although the facts in this case go back to the early 1930s, when the State through its powers of eminent domain and condemnation began taking land from property owners around the intersection of Quaker Lane and Ten Rod Road in North Kingstown, Rhode Island, this Court need only recite those limited facts which are relevant to the instant matter. See V. Compl. for Declaratory J. ¶ 5. Between April 25, 1930 and July 22, 1994, the State acquired land via eminent domain in order to build a park and ride facility at the intersection of Route 2 and Route 102 in North Kingstown. Id. Among such land taken was property owned by Plaintiffs. Id. at ¶ 6.

         The park and ride facility operated up until 2016. On December 9, 2016, RIDOT sent a letter via certified mail to Plaintiffs with the subject line "DISPOSITION OF SURPLUS STATE LAND." See id. at ¶ 7, Ex. A. The letter stated in part:

"On April 25, 1930 and July 22, 1994 the Department of Transportation (RIDOT) acquired land in the Town of North Kingstown for the construction of the Route 2/102 Intersection. Upon completion of the project a parcel of land containing 72, 224± Sq. Ft., became surplus to highway needs and is now available for sale.
. . . .
"Title 37, Chapter 7, Section 3 of the General Laws of Rhode Island, 1956, as amended, dictates that [Joseph DeMarco] as its as its [sic] former owner have [sic] first rights [sic] to purchase the land [available for sale].
"Accordingly, said land is hereby offered to your client, subject to the approval of the State Properties Committee and subject to suitable restrictions, for a market value of $2, 100, 000 (Two Million One Hundred Thousand Dollars)." Id. at Ex. A.

         The letter also included four numbered paragraphs, which were introduced by the phrase "The suitable restrictions mentioned above are as follow [sic][.]" Id. Attached to the letter was a "copy of a Purchase and Sale Agreement executed by RIDOT and TMC New England, LLC, " the entity interested in acquiring the property. Id.; see also Ex. B.

         In response to RIDOT's letter, on December 16, 2016, counsel for Plaintiffs sent RIDOT a letter stating in part: "It does not appear to me, anywhere in [§ 37-7-3], that my client must purchase the 'entire parcel.' To the contrary, I read the statute to provide my client with the right to purchase simply the land which was taken from him ...


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