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Kelly & Mancini secures successful R.I. Supreme Court appeal

Rhode Island Supreme Court

May 25, 2017

Kelly & Mancini attorney, Randall Souza, helped lead a successful appeal in R.I. Supreme Court in the case of Joanne C. Miller v. Wells Fargo Bank, N.A. et al., (No. 2016-71-Appeal). Souza served as local counsel for Seyfarth Shaw’s Boston office and co-presented the oral argument.

Read the full opion.

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Connecticut company subject to contract claim in R.I.

Demolition of restaurant in Foxwoods spurs action

Rhode Island Lawyers Weekly

May 18, 2017

By: Tom Egan

An out-of-state construction company could be sued in Rhode Island after backing out of an agreement to renovate a restaurant at Foxwoods Casino in Connecticut, a U.S. magistrate judge has ruled. The plaintiff tenant of the restaurant space contended that the out-of-state defendant’s business presence in Rhode Island was sufficient for the exercise of general jurisdiction.

Read the full article on the Rhode Island Lawyers Weekly website (subscription required)

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Apex Building Targeted For PawSox Stadium Figures In Lawsuit Between Past & Present Owners

Rhode Island Public Radio

April 26. 2017

By Ian Donnis

The former owners of the Apex Building being considered for a new PawSox ballpark in Pawtucket argue in a Superior Court lawsuit that the site’s current owner demanded $6.4 million for unnecessary environmental cleanup costs.

According to the lawsuit, Environmental Land Usage Restrictions in 2014 “resolved all prior issues that the Rhode Island Department of Environmental Management had concerning contaminated soils,” and since then, the owner of the Apex Building has “received no notices of violations, demands for cleanup, or demands from any state or federal agency for any further action to be taken at” at the Apex Building site or a nearby tire center “to address contaminated soils.”

Despite that, the former owners of the Apex Building assert in the lawsuit that the current ownership demanded last December a payment of $6.452,363 “for alleged anticipated environmental cleanup costs that have only been roughly estimated by the Defendants.” [italics in original]

“A significant portion of the purported estimates would be for work completely unnecessary pursuant to the ELUR’s, and would require” the former owners “to restore the Apex Building and Tire Center properties to a pristine condition, which they have not been in since, approximately, the latter part of the 18th Century,” according to the lawsuit.

The lawsuit was filed in January by Providence lawyer Michael A. Kelly, on behalf of Teknor Apex Company; Pawtucket Financial Corporation; Apex Warwick; and Apex Massachusetts. The defendant is Apex Development Company. Andrew Gates, the owner of the Apex Building, is head of the Apex Companies.

According to a statement released by both sides in the dispute, “The litigation is related to a long-running business dispute that involves multiple properties in Rhode Island and Massachusetts. The Apex Companies have been working with the Rhode Island Department of Environmental Management on the environmental issues that exist on the Pawtucket property, they are publicly documented, and have been discussed with the Pawtucket Red Sox.”

“This litigation is in no way impacting our ongoing negotiations with the Pawtucket Red Sox ownership group about the use of a portion of our property near downtown as a potential location for the team’s new ballpark,” the statement continues. “We look forward to continuing these conversations.”

According to the suit, Apex Development build the Apex Building in 1969. It goes on to say, “In 2000, the interests of certain ‘Apex’ entities, and the owners thereof, diverged from one another.”

(Note: Jon Fain, chairman, CEO and principal owner of Teknor Apex, is a board member of Rhode Island Public Radio.)

The PawSox have identified the Apex Building as the team’s preferred location for a new baseball stadium.

The team did not have an immediate comment on the lawsuit.

Earlier this week, the PawSox released a “park within a park” concept for the site, calling for a series of recreation uses beyond baseball. The team has yet to offer any details on what the project might cost, and how it will be paid for, although the PawSox are expected to offer a proposal before the end of the current General Assembly session.

The Raimondo administration, mindful of how a proposal for a taxpayer-funded downtown Providence stadium met with sharp public disapproval in 2015, has signaled support for what has been called a revenue-neutral approach.

Read the article on the Rhode Island Public Radio website.

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Glocester drops lawsuit against resident

The Valley Breeze

April 26, 2017
By Jackie Roman
GLOCESTER – The town of Glocester has dropped its lawsuit against one of its residents for allegedly using a pool permit as a pretext for running an earth removal operation despite several cease and desist notices.

After submitting a consent order on April 21, the two parties are now trying to come to a resolution outside of the courts.

The decision comes after a years-long debate with abutters of Grenga’s Hazelwood Road property, officials of the Glocester Building and Zoning department, and an investigation by the Department of Environmental Management.

Robert Kelman is one of the neighbors who complained about the sounds of heavy construction equipment piercing the air.

He described hearing the sound of hydraulic hammers before 7 a.m. with little rest until nightfall.

According to Kelman and Town Solicitor Timothy Kane, several abutters in the area submitted complaints about what they suspected was an illegal gravel operation.

The Valley Breeze & Observer tried to obtain records of these complaints from the Glocester Police Department, DEM, and various town officials but did not receive any documentation before press time.
On Sept. 23, 2016 Grenga received a cease and desist letter signed by building inspector Ken Johnson, according to court records.

The noise continued.

On Oct. 13 of that year, Grenga obtained a building permit from the town to remove soil and excavate for an in-ground 20 x 40 pool.

When Grenga wasn’t done building his pool by Jan. 31, 2017, he was issued another cease and desist letter by Johnson.

By Feb. 13 of this year town officials felt they had exhausted all other options – the town of Glocester filed a complaint against Robert and Shana Grenga, as well as a motion for the temporary abatement of earth removal.

In the counterclaim put together by the Grenga’s lawyer, it is argued that “counterclaim plaintiffs have, weather permitting, been removing soil and excavating in order to install their in-ground pool.” In the document filed Feb. 20, it also claims there is still “substantial work to be done.”

The Grengas also argued that the town’s zoning ordinance happens to allow “certain types of earth work, extraction, quarrying, removal of any soil.” And because of the town’s actions, they asked for damages in an unnamed amount.

According to records obtained from the Providence County Courthouse, the town acknowledged that Glocester residents are allowed to remove soil for the installation of an in-ground pool. However, the town still believes “that counterclaim plaintiffs have exceeded limits of excavation necessary to construct an in-ground pool.”

Now Grenga’s attorney, John Mancini of Mancini & Kelly, said Grenga is ready to move forward and comply with the conditions of his new soil and erosion plan.

“It’s our position that we don’t believe there’s been any violation here,” Mancini said.

The new plan went before the Conservation Commission on April 6 and the Planning Board on April 10.

The planning board passed a motion that approved Grenga’s plan under eight conditions: A wetlands permit must be obtained from the DEM; the plan must follow principals outlined in the town’s erosion and sediment control ordinance; the work is not to exceed 90 consecutive days; all deficiencies in the plan identified by the town engineer and planning board must be addressed; size of trucks is limited to tri-axle; hydraulic hammer use is limited; work is limited to completion of pool area; and there must be a defined maximum number of truck trips.

Now it is up to the town engineer to review this information and provide a final recommendation.

Read the article on The Valley Breeze website.

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Right of first refusal not assignable

Rhode Island Lawyers Weekly

April 17, 2017

By: Tom Egan

A Superior Court judge has decided that a right of first refusal established in a company’s shareholder agreement could not be enforced after a shareholder conveyed his stock to his wife. The wife argued that she acquired by assignment her husband’s first refusal right because there was no clause in the shareholder agreement preventing such an …

Read the article in full (subscription required).

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Under review: 28-house plan off Diamond Hill Road

The Valley Breeze

April 12, 2017
By SANDY SEOANE, Valley Breeze Staff Writer

WOONSOCKET – A 7.5 acre open field between Diamond Hill Road and Morin Street could soon be converted into a neighborhood with 28 single-family homes according to a proposal that unanimously won master plan approval from the city Planning Board this week.

The proposal for the subdivision, submitted by Woonsocket-based developer John Laquerre, would see the houses lining a new street dubbed “Theresa Marie Avenue,” which would run from Diamond Hill Road to Morin Street. The properties in the new “Sapphire Estates” would be sold for around $400,000 each, according to Planning Director N. David Bouley.

Land for the project abuts homes along Coolidge Avenue, Morin Street, Ruth Street and Morris Street according to a master plan for the project put together for Laquerre by Nyberg and Associates. Bouley noted that abutters have been notified of the proposal, and will receive a second notification before the plan receives final approval.

The project first came before the Planning Board at their Feb. 7 meeting, with a presentation by Joelle Rocha of Kelly and Mancini, PC. Laquerre said his intended market for the homes is retired individuals and working class families, describing the proposed buildings as high end raised ranches with peaks, architectural shingles and sprinkler systems, according to minutes from the meeting. The investor, who lives in a home on St. Louis Avenue, said that utilities for the development would be underground, and stone walls would surround the area, comparing his vision to newer homes along Dike Street.

The majority of vegetation in the area would be cleared, but a small buffer would remain between lots.

In addition to the entrances to Sapphire Estates on Diamond Hill Road and Morin Street, properties could be accessed from the east by Wilcox Street.

During a pre-application review of the plan, two abutters expressed concern about low water pressure in the area. Bouley noted that the developer’s next step is a hydraulic analysis, and that he may need to connect to a high pressure area.

“Much of the area has low water pressure,” Bouley said.

On April 6, the Northern Rhode Island Board of Realtors submitted a letter of support for the project, along with another proposal currently before the planning board, which would see 72 single-level duplex units built just off Mendon Road.

“The Sapphire Estates development of 28 single family units in East Woonsocket will likely fill a needed market in Woonsocket of young professionals or new families,” the letter states. “This project would increase the homeowner to renter ratio, which is currently at 35:65.”

As part of the unanimous approval on April 4, planners asked that the developer increase the size of the proposed Theresa Marie Avenue, and add sidewalks.

Several stages of planning and approval are still required before work on Sapphire Estates can begin. The developer will still need to present more detailed plans, including a wetlands application, and will require a zoning variance for a utility easement.

Half an acre on the westerly side of the property is wetlands, but plans state that the project would be consistent with the rest of the densely populated neighborhood.

Laquerre could not be reached for comment, but property records show that he’s been involved in a number of real estate transactions in the city over the past several decades.

Another developer, meanwhile, hopes to build two to three bedroom, 1,750 square-foot duplexes along with a private 24-foot-wide roadway in a different undeveloped area in East Woonsocket. The project for that 50 acre property, known as Holley Springs, was actually approved by the City Council years ago, according to attorney Michael Kelly, who is representing investor Raymond Bourque, but stalled due to “market issues.” It was revisited in 2000-2003 and has since been revised to include 77, rather than 100 units.

A condo association would be responsible for the maintenance of the private roadway, as well as a road extension to be built on Cheryl Ann Drive, and and the development would include two cul-de-sacs. The units would be priced between $300,000 and $340,000, according to Kelly.

Letters regarding both projects from NRIBR note that 90 percent of housing in Woonsocket was built before 1978, and 50 percent before 1939.

“The projected development will increase property values in East Woonsocket and bring in individuals with disposable income higher than the average income in Woonsocket, to spend in local businesses,” states the communication, signed by former City Councilor Garrett Mancieri, who serves as chairman of the Government Affairs Committee, and Mary Baron, president of NRIBR.

The Holley Springs project will need to come back before the board for master plan approval.

Read the article on The Valley Breeze website.

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R.I. Developers Want Faster Approval for Subdivisions

ecoRI News
March 20, 2017

Videos and text by TIM FAULKNER/ecoRI News

PROVIDENCE — Rhode Island builders want to again loosen restrictions on construction to help accelerate development.

The latest development-friendly bill (H5475) speeds up the process for dividing parcels of land into smaller lots for building single-family homes.

The legislation changes state land subdivision laws by cutting the application certification time from 60 days to 25. It also requires a planning board to render a decision within 90 days, down from 120. A recording of a decision must be done within 20 days, down from 35. Failure to meet these deadlines would result in a refund of half the application fee.

Local developers claim Rhode Island has longer application times than New York, San Francisco and Boston.

“It’s at the point of being egregious,” Robert Baldwin, owner of R.B. Homes Inc. of Lincoln, said during at March 2 House hearing for the bill.

“Developers from out of town are flabbergasted by how long this time takes,” real-estate attorney Joelle Rocha said.

Opponents of the bill say approval and certification times are necessary to deal with the complexities of large subdivisions. Weeks and months are required so that stakeholders and experts can assess an application. Ample time is necessary to be sure decisions comply with legal requirements and withstand court challenges.

“These decisions have to be very thorough,” said Lisa Dinerman, senior assistant city solicitor for Providence.

Dinerman called the proposed 20-day period for zoning departments to write a final decision “pennywise and pound foolish.” She said it sometimes takes 15 days just to get transcripts from a hearing.

“To put these time limits on these is very burdensome,” she said.

Dinerman and Peder Schaefer of the Rhode Island League of Cities and Towns called the refund penalty unprecedented. Schaefer said he may look into the legality of the proposed fine.

Grow Smart Rhode Island, an advocate of sustainable development, opposes the bill, saying changes to the Subdivision Review Enabling Act require vetting from a broad pool of land-use experts.

Lenny Bradley, an engineer with DiPrete Engineering in Cranston, said the refund and shortened times are necessary, because in some instances it can take almost two years to get a project approved.

“The main reason is, time is money,” Bradley said. “Rhode island is desperate to improve our economy.”

Baldwin noted that during the 1990s Rhode Island was building 3,000 units a year. In 2016, 802 permits were issued for single-family homes, according to Rhode Island Builders Association (RIBA).

Other bill opponents said the reduced application process would burden smaller communities that have fewer staff and less money to comply with the proposed regulations.

The bill is the latest by RIBA, which has in recent years successfully advanced legislation that eases building rules. Most were strongly opposed by environmentalists and open-space advocates.

In 2016, the General Assembly passed a bill that includes wetland buffers in determining buildable lot sizes. In 2013, legislation was approved to allow unbuildable steep slopes to be included in lot sizes. In 2015, a bill was signed into law that created statewide setbacks distances from wetlands. The state Department of Environmental Management is still determining the size of the setbacks.

Samuel Bell of Providence, the former chair of the Rhode Island Progressive Democrats, said the latest bill is good for the environment because it slows suburban sprawl by increasing development on smaller lots. Denser housing, Bell said, reduces carbon emissions, as homeowners in densely built neighborhoods rely less on vehicles to shop.

The bill was held for further study. A Senate version of the bill has yet to have a hearing.

Click here to read the full article and view the related videos.

 

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Providence Journal and Feroce Lawyers Battle Over Errors in Article and Corrections Promised

Thursday, March 02, 2017
GoLocalProv News Team and Kate Nagle

Lawyers representing Rhode Island businessman Giovanni Feroce, and the Chief Legal Counsel for the Providence Journal’s parent corporation, GateHouse Media, have been battling over allegations of errors in an article that was published on January 1, 2017 about Feroce and his company, BENRUS.

After the article was published, Feroce’s attorney Michael Kelly challenged the accuracy of the story and asserted that the article included 17 errors, and requested that the story, “High life crashing down on R.I. entrepreneur Giovanni Feroce,” be retracted and an apology be issued.

Much of the dispute involves a claim in the Providence Journal article that asserted that Feroce’s company was in receivership.

The company was not, and Feroce attests that the printing by the Providence Journal was not only in error, but also damaging.

“Practically, it has impacted certain timelines with capital raising, because a Google search now shows a deceiving headline and misinformation rather than a factual one. On a personal level, fortunately decades of success, commitment, charity, hard work, risk and sacrifice will ultimately shield me from lasting damage. That said, if the misleading context and outright misinformation is intended to hurt me ‘politically,” well then that needs to be seen,” said Feroce in an email to GoLocal on Tuesday.

In a letter sent from GateHouse Senior Vice President, Secretary and General Counsel Polly Grunfeld Sack to Feroce’s attorney Kelly, she denied the request for a retraction and defended the paper’s journalism, but outlined that the company would make corrections.

“Accordingly we will be publishing a correction/clarification of the minor items noted in Exhibit A but will not be publishing a full retraction nor issuing an apology,” wrote Sack.

In addition Sack wrote, “This letter sets forth our position on the matters discussed herein and should not be viewed as an admission of liability or wrongdoing or as limiting, prejudicing or waiving any of our right and remedies.”

In response to the January 31 Sack letter to Kelly, another of Feroce’s attorneys flagged again the importance of correcting the record as it relates to the company’s business health. “While we understand that the Providence Journal may have printed the erroneous information concerning the Court proceeding and characterized the same as receivership proceedings, we are requesting that you acknowledge in the correction that at no time was Mr. Feroce or any of his business entities in receivership. Of all of the issues the Mr. Feroce has with the article, the inaccurate statement concerning the receivership is the most concerning and damaging to him and his entities,” wrote Michael Mineau.

Corrections

According to the Society of Professional Journalists Code of Ethics, “Respond quickly to questions about accuracy, clarity and fairness. Acknowledge mistakes and correct them promptly and prominently. Explain corrections and clarifications carefully and clearly.”

“I am sure that Gatehouse is somewhat removed from the individual goings on of just one of their assets, so I appreciate their willingness to look at this seriously and make corrections,” said Feroce in an email to GoLocal.

“As far as timeline, I am ok with the process taking its course, however the minute they realized the court’s ‘clerical error’ and I was never in receivership, an immediate correction should have been made, without hesitation and inclusive of emphasis that such an egregious error is to be taken seriously.”

Now over a month after the letter from Sack to Kelly outlining corrections and clarification, it is unclear if the corrections have been published. According to the newspaper’s archives of stories, no corrections have been published online. When asked if the corrections had been published, Providence Journal Executive Editor Dave Butler said, “Feel free to check the paper for what we printed.”

“The Journal has reported on the numerous legal matters involving Mr. Feroce and will continue to do so based on their newsworthiness. Per our policy, we corrected some minor errors in one story. I would call your attention to a story published last Saturday which reported on complaints filed by the state against two of Mr. Feroce’s companies for failing to provide workers’ compensation insurance. We are simply reporting on actions taken by officials. I would suggest rather than relying on letters from his attorney that you examine the actual legal documents,” said Butler. He responded to questions emailed to Sack.

As referenced in Butler’s quote, the Providence Journal wrote another story on February 24, “R.I. charges 2 Feroce companies failed to carry workers’ comp.”

Feroce said that this story is also flawed. “I will say the reporter’s follow up piece again smells of politics and could have included basic information such as pursuant to R.I. Gen Laws §28-29-2, members of a RI limited liability company are not employees under the R.I. Workers’ Compensation Act. Everyone I work with at BENRUS is a shareholder and she clearly knows that from my interview in December,” said Feroce.

Both articles were written by Amanda Milkovits, Journal Staff Writer.

EDITOR’S NOTE: Butler affirmed to GoLocal on Thursday morning that the following corrections have been added to the January 1, 2017 story published by the Providence Journal. These corrections are some but not all of the corrections discussed by lawyers for Feroce and GateHouse’s counsel. They are as follows:

CORRECTION: The June 2015 BENRUS-sponsored golf tournament was at The Preserve in Richmond, Rhode Island. An earlier version of this story misidentified the location.

CORRECTIONS: Because of a clerical error now acknowledged by Superior Court, the original version of this story inaccurately called one of the law suits against Giovanni Feroce a receivership proceeding. Also, in a letter to The Journal, Feroce said Thomas McGovern was his business manager, not his chief operating officer; his company, BENRUS, did not lose a half of a million dollars on a golf tournament because he sponsored the event for “marketing and advertising exposure;” and that a BENRUS store in Rochester was open more than a year, not only a few months. The original version of the story inaccurately said Feroce believes his company will be worth $100 million in five years – not $1 billion– and that he met Alex & Ani owner Carolyn Rafaelian at a URI reunion in 2009, not 2010.

Read the article on GoLocal Prov.

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Town abandons road extension despite subdivision’s approval: $800,000 settlement

Rhode Island Lawyers Weekly

November 7, 2016

The plaintiff gardening nursery was headquartered in Middletown with another location in Portsmouth. The plaintiff received Planning Board approval for a subdivision at the Portsmouth location, conditioned upon the use of the Heidi Drive Extension as a second means of egress. Despite knowing about the approval and over the plaintiff’s objection, the town of Portsmouth abandoned the …

Click here to read the full article (subscription required).