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Middle Creek Farm, LLC v. Portsmouth Water & Fire District & City of Newport

Superior Court of Rhode Island

April 5, 2018

PORTSMOUTH WATER & FIRE DISTRICT & THE CITY OF NEWPORT, by and through Its City Manager, Joseph Nicholson, Jr. & Laura Sitrin, Director of Finance & Support Services of

         Newport County Superior Court

          For Plaintiff: Neil P. Galvin, Esq.; James A. Hall, Esq.

          For Defendant: Adam Ramos, Esq.; Joseph A. Keough, Jr., Esq.


          VAN COUYGHEN, J.

         The matter before the Court is Plaintiff Middle Creek Farm, LLC's (Middle Creek) Motion for Summary Judgment and Defendant Portsmouth Water & Fire District's (PWFD) Motion to Dismiss for Failure to Join Indispensable Parties. For the reasons stated herein, the Court grants Middle Creek's Motion for Summary Judgment in part and denies PWFD's Motion to Dismiss. Jurisdiction is pursuant to Super. R. Civ. P. 12(b)(6), Super. R. Civ. P. 56(c), and G.L. 1956 § 9-30-11.


         Facts and Travel

         The within matter concerns an eleven-lot subdivision that straddles the border between Portsmouth and Middletown. Seven lots have home sites located in Portsmouth, Rhode Island and four lots have home sites located in Middletown, Rhode Island. Three of the four lots (sub-lots 1, 2, and 4) that have home sites in Middletown contain a portion of land located in Portsmouth. One of the four lots (sub-lot 3) has no land in Portsmouth and is entirely in Middletown. See App. A. The subdivision was approved by both the Middletown and Portsmouth planning boards. As part of that approval, Middle Creek was required by the Portsmouth Planning Board to install a water main in the new road of the subdivision. PWFD has refused to permit Middle Creek to connect the four sub-lots that have houses located in Middletown to the water main, and, as stated above, three of those lots contain property in Portsmouth.[1]

         The parties have agreed to stipulated facts. Although PWFD agrees to the stipulated facts, PWFD asserts that the stipulated facts are insufficient for this Court to base its decision, and alleges that there are facts in addition to those agreed upon which must be developed in order for the Court to properly render its decision.[2] The stipulated facts are as follows:

(1) [Paragraph one essentially provides a description of the Middle Creek subdivision.] That the certain plat entitled, "MIDDLE CREEK FARM SUBDIVISION A.P. 128 Lot 73 (Middletown) A.P. 68 Lot 71 (Portsmouth) Cornelius Drive Portsmouth, RI 02871 Northeast Engineers & Consultants, Inc. Project Number: 13172.1 Scale: 1"=80' Subdivision Plan Date: 27 Sept 16" and recorded as Index No. 1649 in the Portsmouth Land Evidence Records and recorded as Plat No. 2017-5 in the Middletown Land Evidence Records attached hereto as Exhibit 1 is the Subdivision plan recorded in the Portsmouth Land Evidence Records. [See App. A].
(2) That the Subdivision contains 11 Sub Lots
(3) That Sub Lots 1-4 will not have home sites located in Portsmouth, RI.
(4) That Sub Lots 5-11 will have home sites located in Portsmouth, RI.
(5) That Sub Lots 5-11, as customers of PWFD within PWFD's district, will be allowed to access PWFD water through the installed main.
(6) That a portion of Sub Lots 1, 2 and 4 have land in Portsmouth, RI.
(7) That Sub Lots 1, 2 and 4 will be responsible for paying PWFD taxes but have not yet been charged any such taxes.
(8) That Sub Lot 3 has no land in Portsmouth, RI.
(9) That Sub Lot 3 will not pay PWFD taxes.
(10) That the water main required by the Portsmouth Planning Board was installed on the road/right of way in the location as identified on the plan entitled "AS BUILT WATER MAIN" Cornelius Drive, Scale 1" = 40' dated January, 2017 attached hereto as Exhibit 2. [See App. B].
(11) That Newport [Water Division] does not oppose all 11 Sub Lots receiving water through PWFD's water main. (Stipulated Facts, Sept. 8, 2017) (emphasis in original omitted).

         Middle Creek argues that it is entitled to summary judgment based on two theories. First, that the undisputed facts support this Court's granting summary judgment based on equitable principles. After review of the documents filed, the arguments of counsel and the appropriate law, the Court finds that there are genuine issues of material fact regarding Middle Creek's claim for equitable relief, and thus, summary judgment is inappropriate in that regard. Therefore, summary judgment is denied on that basis.

         Middle Creek also seeks summary judgment based upon the language of PWFD's Charter (the Charter) and G.L. 1956 § 46-15-2. Middle Creek contends that the matter before the Court is essentially a matter of statutory construction and that the undisputed facts, when applied to the language of the Charter, require that all of the lots that have a portion of property in Portsmouth be entitled to connect to the PWFD water system. Middle Creek further argues that pursuant to § 46-15-2, PWFD may "extend its supply and distribution mains" and "supply water" outside its district because it has legally supplied water to a location in Middletown in the past.

         PWFD objects, alleging that the use of the word "inhabitants" as used in Section 5 of the Charter requires that the actual residence be located within Portsmouth in order to be eligible for water service and that § 46-15-2 prohibits water service beyond the boundaries of the PWFD, at least until various state agencies give their approval. The Court will address each argument in turn.


         Middle Creek's Motion for Summary Judgment


         Standard of Review

         Superior Court Rule of Civil Procedure 56(c) provides that a court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as matter of law." Super. R. Civ. P. 56(c). When "ruling on a motion for summary judgment the [hearing] justice must consider affidavits and pleadings in the light most favorable to the opposing party, and only when it appears that no genuine issue of material fact is asserted can summary judgment be ordered." O 'Connor v. McKanna, 116 R.I. 627, 633, 359 A.2d 350, 353 (1976) (citation omitted). The nonmoving party "carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996). Accordingly, summary judgment is appropriate if the nonmoving party '"fails to make a showing sufficient to establish the existence of an element essential to that party's case."' Beauregard v. Gouin, 66 A.3d 489, 493 (R.I. 2013) (quoting Lavoie v. Ne. Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007)). The mere existence of a factual dispute alone will not preclude summary judgment; rather, '"the requirement is that there be no genuine issue of material fact.'" Bucci v. Hurd BuickPontiac CMC Truck, LLC, 85 A.3d 1160, 1170 (R.I. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (emphasis in original). An issue is "genuine" if the pertinent evidence is such that a rational factfinder could resolve the issue in favor of either party, and a fact is "material" if it has the capacity to sway the outcome of the litigation under the applicable law. Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995).



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