Plaintiff: Barry J. Kusinitz, Esq.
Defendant: Joseph A. Keough, Jr., Esq.
the Court for decision is Plaintiff North Farm Home Owners
Association, Inc.'s (North Farm) motion for preliminary
injunction against Defendant Bristol County Water Authority
(BCWA). Defendant has objected to Plaintiff's motion and
has filed a motion to dismiss Count III of Plaintiff's
Complaint requesting injunctive relief. This Court exercises
jurisdiction pursuant to G.L. 1956 § 8-2-14.
Facts and Travel
North Farm Condominium, located in Bristol, Rhode Island,
began development in 1973. As part of the first phase of
development, the Condominium developer granted a utility
easement to BCWA in specified common areas for the purpose of
constructing, laying, repairing, maintaining, and replacing
"water pipelines and necessary and proper valves and
other appliances" for use in connection with the
transmission and distribution of water and subsequent
construction, inspection, and maintenance of the pipelines.
The easement further stated that all water pipelines would
remain "at all time[s] and forever" the sole
property of BCWA and shall not be considered fixtures in or
on the land. As part of the initial installation of the water
pipelines, BCWA installed a number of branches extending from
water mains to "pits" located near each building.
Each of these pits contained separate water meters for each
of the individual condominium units serviced by that pit.
about 1993, a representative of BCWA approached North Farm to
change the metering system from separate condominium meters
to a single, central meter. There was no alteration to the
original easement pursuant to the installation of the central
meter. Nor did the installation of the central meter alter
the ownership status or maintenance obligations related to
the already installed water pipelines.
February 2014, North Farm experienced a break in a water pipe
covered by the initial easement. North Farm reported the
break to BCWA and requested that it repair the broken pipe
pursuant to the easement. BCWA denied responsibility for the
water pipe as it was past the location of the central meter.
North Farm subsequently experienced three additional breaks
in the water pipeline between 2014 and 2017. As a result,
North Farm has paid $58, 296.86 for costs of repairs to the
Farm filed its Complaint in conjunction with a motion for a
temporary restraining order on September 28, 2017. Following
a conference attended by counsel for both parties, the Court
entered an Order issuing a temporary restraining order which
still remains in effect. BCWA subsequently answered North
Farm's Complaint and filed a six-count Counterclaim.
Farm here asserts that correspondence between it and BCWA
constitutes a contract that binds BCWA to the agreed upon
terms. Namely, Plaintiff contends that BCWA indicated that
following the installation of the central meter it would
"continue the present maintenance repair and/or
replacement of water mains within the easement granted to
BCWA when North Farm was built." (Pl.'s Ex. 3,
Cooney Letter, May 11, 1994.)
North Farm argues that the agreement is not void, as BCWA
suggests, because BCWA's function in furnishing water to
the condominiums is proprietary and, therefore,
nongovernmental. Because BCWA is not engaged in a
governmental function, North Farm asserts that the doctrine
of apparent authority applies. Simply put, North Farm argues
that BCWA's and North Farm's then representatives had
the authority to bind the parties to the agreement's
terms in the same fashion as any other nongovernmental entity
would be bound by its agents and servants. To support this
contention, North Farm points to BCWA's Rules and
Regulations Governing Rendering of Service §9(a) and (c)
entitled "Meters and Meter Installations." This
section indicates that the Authority-which is defined
elsewhere in the Rules as "the Bristol County Water
Authority, acting through its Officers, Executive Director,
Manager or other duly authorized employees or agents, each
acting within the scope of the particular duties entrusted to
him"-after consultation with the customer shall
specify the type, size, and location of the meter to be
BCWA argues that its enabling legislation controls its
ability to contract. The legislation states that "[t]he
powers of the authority shall be vested in a board of
directors. . ." and, elsewhere, that the authority shall
have the power "to fix rates and collect charges for the
use of the facilities . . . or services rendered[.]"
Sec. 7(a); Sec. 6(a)(6). The Act further states that the
authority shall have the power to "make and
execute" agreements and contracts "necessary or
convenient in the exercise of the powers and functions of the
authority granted by this act." Sec. 6(a)(8). Here, the
agreement with North Farm was not presented to nor voted on
by the Board of Directors. Therefore, BCWA argues the
agreement is invalid.
also contends that a preliminary injunction would prohibit
the Board of Directors from exercising its statutory power to
charge administratively approved ...