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Friday, July 26, 2013

Town’s legal hopes in Whalerock case hang by a thread

It’s a thread the town doesn’t want you to see
No wonder the Council wants to make a deal with LeBlanc
By Will Collette

Last month, Charlestown filed its anticipated request to RI Superior Court Judge Kristin Rodgers asking her to reverse her ruling that Charlestown lacked standing as an “aggrieved party” to participate in the case against the proposed Whalerock wind energy project. Judge Rodgers was the second judge to rule that Charlestown lacked the right to participate[1].

Despite two judges’ rulings, Charlestown decided to not only participate in the Whalerock hearings before the Zoning Board of Review (ZBR), but the CCA Party-controlled Town Council also decided to spend $50,000 to hire an additional lawyer, Special Counsel John Mancini. Mancini told the ZBR that in addition to representing the town, he was also representing a group of anonymous private individuals.

According to Whalerock attorney Nick Gorham’s statements on the ZBR hearing record  – and undisputed by Mancini or Town Solicitor Peter Ruggiero – Charlestown has taken the unprecedented step of using taxpayer money to pay for an attorney to represent these anonymous clients. All those campaign contributions from the Ill Winders to the CCA Party really paid off for them. You can’t beat grease to make the political wheels move.

But Town Solicitor Ruggiero said it would all be made right when he presented his argument before Judge Rodgers that Charlestown actually does have standing to participate, based on surprising new evidence he discovered.

The Westerly Sun reported that the Town filed a claim with the court that it found a piece of town-owned property near the proposed wind turbine site. It took a while to get those filings so I could report on them because the town of Charlestown refused my request for the records, even though it is required to do so under the state open records law, the RI Access to Public Records Act.

Stankiewicz Stonewall

Town Administrator Mark Stankiewicz made the remarkable claim that the town does not maintain those court filings, even though the town has been routinely providing filings just like them to me for the past two years – and you’ve been reading about them in Progressive Charlestown. Even though I argued Town Solicitor Peter Ruggiero filed the documents and must retain a copy. Stankiewicz stuck to his position that the town doesn’t have its own records as if the Town Solicitor isn’t part of town government.

I asked Stankiewicz to clarify his answer...

And this was his reply:

OK. I get it. This is a document the Town doesn’t want me to write about in Progressive Charlestown so they’re not going to make it easy for me by following the law, not to mention their own long-standing practice.

So Tom Ferrio and I schlepped over to Superior Court in Wakefield and got copies of the town’s claim about its miracle discovery as well as Nick Gorham’s rebuttal. I’ve filed a formal complaint against Stankiewicz’s violation of the open records law with the Attorney General’s Office. Click here to read the complaint.
Betting on a Hockey Stick

Red arrow points to Map 19, Lot 63-1, the tax sale property the town is
hoping will convince Judge Rodgers to rescind her ruling.
From Charlestown Tax Map #19
But now I understand why Stankiewicz took this position on the Whalerock records. 

The town’s claim that it found magic evidence to overturn two judges’ rulings is based on 0.3 acre vacant Lot #19-63-1 taken by the town in 1999 when its owners failed to pay $342.01 in property taxes. 

The lot looks like a hatchet or a hockey stick and has a few feet of frontage on King’s Factory Road across from the Whalerock site. It’s unbuildable and almost worthless.

The owners, Gordon and Virginia Johnson of Barrington, New Jersey, didn’t pay a 1994 balance on their property taxes of 62 cents plus another $140.51 levied from 1995 to 1997. The unpaid taxes could have been due to Gordon Johnson’s death in May 1984 after which his wife Virginia moved and later died in 2005. Maybe they forgot they owned this little sliver of Charlestown.

Here's a photo of Lot 19-63-1, the perfect spot for a Del's Lemonade cart
From the Charlestown Tax Assessor's database
Town Tax Collector Jo Anne Santos initiated a tax sale on June 20, 1999. No one bid on the lot, so the town took it as a “tax sale property” for the amount of unpaid taxes and interest, $342.01. 

Since then, the lot has sat on the tax rolls assessed at $8,400. You can redeem it for the back taxes. Great for firewood or a Del’s lemonade wagon (if the town gives you a permit).

That lot has been on town records all along. It shows up under “Town of Charlestown Tax Sale” on Tax Assessor Ken Swain’s database. It even appeared on Deputy Dan Slattery’s list of “phantom properties” in 2011 (that’s a classic Deputy Dan story – click here to read it).

When in doubt, blame it on DiLibero

Yet in his June 7 “Motion to Reconsider” filed with Judge Rodgers, Solicitor Ruggiero says somehow the town missed it, even though Whalerock case has been the town’s top priority since 2010. “Through inadvertence,” the town screwed up and failed to mention it not once but in both town lawsuits against Whalerock. Ruggiero also blames “a transition period in the position of Town Administrator” for the screw-up.

Neither of those seems to be a convincing legal argument even if true. Click here to read Ruggiero’s filing along with the accompanying documents.
No matter what happens, or when,
it's his fault

Even Peter Ruggiero has learned that when you have to confess to a screw-up, blame it on former Town Administrator Bill DiLibero. Don’t take personal responsibility even though that’s why the town pays Ruggiero the big bucks. 

However, the facts contradict Ruggiero's claim (I wonder what the Judge would think of that?)

DiLibero was hired in 2009, a year before the first Whalerock lawsuit was filed and resigned in April 2012. If the Ruggiero hadn’t figured out what evidence he needed to present court by then, he was doomed to lose, as he did. Twice.

If the judge accepts Ruggiero’s “Blame-it-on-DiLibero” defense for being almost three years tardy in bringing up the existence of this lot, Judge Rodgers will also have to consider Gorham’s arguments why Charlestown doesn’t actually “own” Lot 19-63-1. It all depends on how you define “own.”

"I Object!"

Gorham starts his brief off with a nice bit of snark in pointing out that Ruggiero goofed by filing a “Motion to Reconsider” since, says Gorham, there is no such motion under the state’s Rules of Civil Procedure. Maybe that works under Robert’s Rules of Order, but Gorham says Ruggiero needed to file a “Motion for Relief from Judgment or Order.”

Whalerock lawyer Gorham - eating Ruggiero's lunch
Gorham also argues “the town does not ‘own’ the property. Rather, the town holds a statutory interest” which is not the same thing.

Gorham cites the statute and case law to argue that if the town wanted to “own” the property, it could and should have exercised its right to take the lot for “municipal purposes.” Instead, he says the town chose to “preserve its right to collect taxes....Until the right of redemption is foreclosed, the town’s interest is limited only to the collection of taxes, and nothing more.”

Gorham then points out how the town distinctly identifies those properties it owns and those that are “tax sale” properties. According to Gorham, the town has already filed statements with the court – twice – that it did not own property within 200 feet of Whalerock and now wants the court to allow an “11th hour transmogrification of their treatment of the lot” three years into the litigation.

Gorham wraps up by labeling the town’s actions as a ruse to allow it to go before the Zoning Board as if it was a legitimate party to the case, when two judges have ruled it is not, and that “is a violation of Whalerock’s due process rights.”

Gorham hoped to get an immediate answer from the court enjoining Charlestown “from participating any further in the zoning hearing than it already has.”

Click here to read Gorham’s rebuttal filing and supporting documents.

The one hopeful sign for Ruggiero is that Judge Rodgers hasn’t issued a ruling on these two filings, though she did tell both parties that her earlier ruling stands until or unless she decides to rescind it. Six weeks have gone by.

Maybe Charlestown will get very lucky and break its losing streak on Whalerock litigation. But read the filings for yourself and ask yourself how likely this is.

Frankly, I think this weak showing may be one of the factors that convinced the CCA-controlled Town Council to do what I’ve been saying for monthsmake the deal with LeBlanc to buy the land for open space because the town isn’t going to win this case in court, and certainly not with this legal team.


[1] The Zoning Board is a quasi-judicial body. It is supposed to be removed from politics, which is why, by law, members are appointed, not elected. It is supposed to follow the rule of law and base its decisions on the evidence presented before it. In order to present evidence before the Zoning Board – to have “standing” - you need to be an “aggrieved party” which is defined under law to include abutters (owners of property within 200 feet of the site). Our town lawyers are supposed to know the law and how to establish that the town has "standing" in a legal proceeding. So far, they've drawn not one but two judicial rebukes for their arguments about the town’s standing in the Whalerock case.