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H.V. Collins Properties, Inc. v. State

Superior Court of Rhode Island, Providence

September 9, 2019


          Providence Superior Court Silverstein, J. (Ret.)

          For Plaintiff: Robert G. Flanders, Jr., Esq. Christopher Nicholas Dawson, Esq.

          For Defendant: Lawrence P. McCarthy, III, Esq. Renee M. Bevilacqua, Esq.


          SILVERSTEIN, J. (Ret.)

         Before the Court is Plaintiff H.V. Collins Properties, Inc.'s (Collins Properties or Plaintiff) Motion for Partial Summary Judgment pursuant to Rule 56(c) of the Superior Court Rules of Civil Procedure. Collins Properties seeks a determination from this Court that the State of Rhode Island's (State) construction of a bicycle path (the Bike Path) across Collins Properties' land, without notice to or consent from Collins Properties, constitutes a taking of Plaintiff's land and riparian rights. As such, Plaintiff asks the Court to find the State liable to Plaintiff for just compensation, in an amount to be determined in future proceedings. The State objects, arguing that it owned the land in issue prior to the Bike Path's construction. Jurisdiction is pursuant to G.L. 1956 § 8-2-14 and Article I, Section 16 of the Rhode Island Constitution.


         Facts and Travel

         Collins Properties is a construction business organized as a Rhode Island corporation. Since 1950, Collins Properties, along with its affiliates and predecessors-in-interest, has owned real property located at 99 Gano Street, Providence, Rhode Island (99 Gano Street or the Property). The Property has served as the headquarters of Plaintiff's business since 1950. Plaintiff utilizes the land for storage of construction materials, landscapes the Property, and excludes the public by the use of permanent fencing around the Property's perimeter.

         Collins Properties acquired 99 Gano Street by deed in 1950. The Providence City Tax Assessor's map identifies the Property as three consecutive pieces of land, including Plat 17, Lot 416 (Lot 416), which abuts Gano Street on the Property's western boundary; Plat 17, Lot 611 (Lot 611), which borders the Seekonk River on the Property's eastern boundary; and Beach Avenue (Beach Ave. or the Contested Land), a "paper street" comprised of a strip of land between Lot 416 and Lot 611. Before the construction of the Bike Path, there were no physical boundaries between these three parcels of property. Instead, they appeared to be one continuous piece of land.

         The Property also included a seawall at the bank of the Seekonk River, prior to the events giving rise to this matter. The seawall existed when Plaintiff purchased the Property, and Plaintiff maintained it until 2016. From 1950 until at least 1978, Plaintiff also maintained a boat dock that extended into the Seekonk River from the seawall. In 2004, the City of Providence (Providence or the City) constructed a boat ramp next to 99 Gano Street. At that time, Plaintiff and the City executed an Agreement dated January 3, 2004 requiring the City to reinstall the fencing that prevented public access onto 99 Gano Street, including the Contested Land.

         The paper street at Beach Ave. was first recorded in 1847 on a plat entitled, "Plot of What Cheer Estate belonging to the heirs of the late Gov. Jas. Fenner, Surveyed and Plotted July 14, 1847, By Atwater & Schubarth" (the What Cheer Plat). The paper street was fully submerged under the Seekonk River at the time of the recording of that plat. It remained so until as late as the 1940s, at which time the shoreline of the Seekonk River had begun to recede, and nearby property owners began to fill in their lands at the shoreline. By 1950, when Plaintiff purchased the Property, the paper street was still partially-if not completely-submerged under water, while Lot 611 was fully submerged. After purchasing 99 Gano Street, Collins Properties filled in Beach Ave. and Lot 611, a process which was completed in 1972. There is no dispute that Collins Properties is the owner of Lot 416. The parties disagree as to the legal owner of Beach Ave. and Lot 611.

         In August 2016, a construction crew entered 99 Gano Street, without notice or consent from Plaintiff, and began to build the Bike Path. The project was known as the Blackstone River Bikeway and was executed by contractor J.H. Lynch & Sons, Inc. (J.H. Lynch) pursuant to a contract with the State. The entire project consisted of approximately 0.7 miles of bike path, beginning at the intersection of Gano Street and Trenton Street, following along the Seekonk River, and ending at Waterman Street in Providence. Upon entry, the construction crew proceeded to lay a foundation for the Bike Path, to remove the fencing that existed around the perimeter of the Property, and to demolish the seawall. The crew dumped stones, fill, and rip-rap over and between the location of the seawall and the Seekonk River. Both the State and J.H. Lynch ignored Plaintiff's requests to consider an alternate route for the Bike Path.

         The State, through the Rhode Island Department of Transportation (RIDOT), claims to have acquired title to Beach Ave. through eminent domain against Providence. RIDOT filed for condemnation of Plat No. 2845 on August 28, 2015 in the Providence Land Evidence Records, pursuant to G.L. 1956 §§ 37-6-1 et seq. and §§ 24-10-1 et seq. As a result, the State contends that it acquired title to the Contested Land. However, it is Plaintiff's position that the City never had ownership of Beach Ave., thereby rendering this condemnation invalid.

         In the wake of the construction of the Bike Path, Plaintiff claims numerous injuries to its rights in 99 Gano Street. The Bike Path now bisects the Property, thereby preventing Plaintiff's direct access to the Seekonk River and to Lot 611. Additionally, the State's removal of Plaintiff's fencing around the perimeter of the Property now allows public access onto 99 Gano Street. At the site of the Bike Path itself, J.H. Lynch raised the grade of the Contested Land, further obstructing Plaintiff's access to the Seekonk River. Moreover, the project resulted in the evisceration of the seawall, leaving in its place a mound of rip-rap at the shore of the Seekonk River. In the wake of these changes, the State has not compensated Plaintiff and denies liability.

         In August 2016, shortly after the commencement of the Bike Path's construction, Plaintiff brought this action seeking a declaration that the State's actions constituted a taking of Plaintiff's property and riparian rights. Plaintiff seeks just compensation for the State's action. The amount of such compensation, if any, is to be determined in future proceedings.


         Standard of Review

         It is well-settled that '"[s]ummary judgment is 'a drastic remedy,' and a motion for summary judgment should be dealt with cautiously."' Estate of Giuliano v. Giuliano, 949 A.2d 386, 390 (R.I. 2008) (quoting Ardente v. Horan, 117 R.I. 254, 256-57, 366 A.2d 162, 164 (1976)). "[S]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the [C]ourt determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Educ., 93 A.3d 949, 951 (R.I. 2014) (internal quotation marks omitted) (alterations in original). Pursuant to Super. R. Civ. P. 56(c), summary judgment "may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."

         '"[T]he moving party bears the initial burden of establishing the absence of a genuine issue of fact."' McGovern v. Bank of Am., N.A., 91 A.3d 853, 858 (R.I. 2014) (quoting 1 Robert B. Kent et al., Rhode Island Civil and Appellate Procedure § 56:5 (2018-19 ed.)). Once this burden is met, the burden shifts to the nonmoving party to prove by competent evidence the existence of a genuine issue of fact. Id. The nonmoving party may not rely on '"mere allegations or denials in the pleadings, mere conclusions or mere legal opinions'" to satisfy its burden. D'Allesandro ...

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