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A legal battle that had its start nine years ago when a Buttonwoods resident posted 'no trespassing' signs on what neighbors have treated as common property for 150 years has ended with a Rhode Island Supreme Court ruling in favor of the Buttonwoods Beach Association.
In an opinion issued last week, Chief Justice Paul Suttell upholds the ruling of the Superior Court Justice Jeffery Lanphear that Judith and David Clark do not own the waterfront lot in front of their home through adverse possession.
In 2009, the Clarks bought a residence and a carriage house with an address on Promenade Avenue, and another property and residence with an address on Cooper Avenue. The Clarks demolished the residence on Cooper Avenue, later building a garage to create a courtyard open space, which they merged with 243 Promenade Ave.
This left them a brick walkway beginning at the base of the front porch of the home on Promenade Avenue that leads to a sidewalk and resumes across a paved roadway, continuing through a hedge to a grassy area. Beyond that there is a concrete patio bordering a seawall, the beach and Greenwich Bay.
According to court documents, the Clarks posted four 'private property' and 'no trespassing' signs at various points on the waterfront lot in July 2011 after they had seen strangers fishing off the seawall and asked them to leave. They called the police and were advised they were exposing themselves to liability by not having any 'no trespassing/private property' signs posted.
In an interview Monday, Judith Clark said the people fishing had built a campfire on the property and were not simply crossing the area.
Later, Susan Phipps, a neighbor and then president of the BBA, sent the Clarks an email stating that the waterfront lot did not belong to them and instructed them to remove the 'private property' signs.
It might have ended there, but it didn't.
The Clarks believed they owned the waterfront lot.
Three years later, the Clarks filed a complaint in Kent County Superior Court against the BBA, claiming ownership of the entire waterfront lot by adverse possession and acquiescence by the association. During a six-day, non-jury trial in the fall of 2016, Lanphear heard testimony from six prior owners of 243 Promenade Ave. who testified that they cared for and made improvements to the waterfront property. One said she was aware it was common property belonging to the BBA, while others said they believed to have ownership.
Clark grew up in Buttonwoods. At the time, she said it was basically a summer community of small houses, many of them in various stages of disrepair, earning the name of 'the haunted village.' She said that started to change in the 1980s. She said Buttonwoods is 'precious' and she wants to see it preserved.
In 2009, she and her husband were living in Exeter. She said her desire to be near the water brought her back to the neighborhood. She said when they bought the properties, she was told that the waterfront was part of the deal. She said they later learned that they owned the water-side half of the lot and that the rest along Promenade was BBA property.
As the dispute heated up, Clark said she received anonymous threats, that the 'no trespassing' signs were vandalized and that a gate was ripped out, later to be found on the beach. Clark then offered to buy the BBA half of the lot, which the city assessed at $11,000, for $33,000. She reasons the BBA would be better off selling much of the property its owns to abutting property owners as they would be 'better stewards' and it would resolve title issues that make land sales difficult.
When the BBA turned down the offer to buy the land, the Clarks sought to resolve the issue by adverse possession. When Lanphear found in favor of the BBA, the Clarks appealed to the Rhode Island Supreme Court.
Mark McKenney, an attorney who grew up in Buttonwoods and was involved in the legal fight, said Saturday he couldn't 'be more pleased' by the ruling. McKenney said ever since Buttonwoods was platted 150 years ago, it has provided a unique environment where homes on relatively small lots share open space. When platted, he said 80-foot-wide roads were planned, meaning that they literally run next to the front door of some homes. The roads aren't paved to 80 feet and homeowners care for association land as if it is theirs.
'We grew up on Beach Park Avenue,' McKenney said relating that as a boy he questioned his father why 'we had to mow it if we don't own it?'
In the case of Promenade Avenue, McKenney points out the road as shown on the plat map extends east beyond its paved portion to the peninsula point and is part of the 'common' land belonging to the Buttonwoods Beach Association. Further, he questions how the road could be considered private property when city utilities – sewer and water lines – run down it.
He explained that the BBA land is taxed by the city, but because the BBA has no funds, it 'leases' the land to the Buttonwoods Fire District, which has the power to tax the landowners for the services it provides including the maintenance of roads, tennis courts and the meeting hall known as the casino.
As the fire district funded the legal battle, Clark notes the taxes they were paying the district were in part being used against them without their consent.
McKenney put the association's cost for the legal battle at more than $100,000. If anything, he is hopeful it has established the legitimacy of the common land ownership of the BBA and serves as a reminder to prospective purchasers in Old Buttonwoods to carefully understand what they would be buying.
As for the argument property owners would make better stewards of the property, he reasons property owners are already doing that and there is no need for them to own the land.
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Association President Peter Dorsey is pleased that the legal battle is over. He said it's his hope to move on.
'This is not something to gloat about,' he said.
He said the legal battle in a close-knit neighborhood has been 'emotional,' adding, 'Hopefully time heals all wounds.'
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He urged people looking to buy property in Old Buttonwoods to spend what it takes to have a survey completed and 'know what you're buying.'
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In his decision, Suttell writes, 'As the trial justice noted in his decision, the deed to 243 Promenade Avenue refers to the 1882 plat. The eighty-foot public width represented on the 1882 plat is undisputed. Based on the findings of the trial justice, none of which are clearly wrong, there was not a ten-year period of ‘actual, open, notorious, hostile, continuous, and exclusive use of property under a claim of right' across the four predecessors in title to the Clarks.'
It might have ended there, but it didn't.
The Clarks believed they owned the waterfront lot.
Three years later, the Clarks filed a complaint in Kent County Superior Court against the BBA, claiming ownership of the entire waterfront lot by adverse possession and acquiescence by the association. During a six-day, non-jury trial in the fall of 2016, Lanphear heard testimony from six prior owners of 243 Promenade Ave. who testified that they cared for and made improvements to the waterfront property. One said she was aware it was common property belonging to the BBA, while others said they believed to have ownership.
Clark grew up in Buttonwoods. At the time, she said it was basically a summer community of small houses, many of them in various stages of disrepair, earning the name of 'the haunted village.' She said that started to change in the 1980s. She said Buttonwoods is 'precious' and she wants to see it preserved.
In 2009, she and her husband were living in Exeter. She said her desire to be near the water brought her back to the neighborhood. She said when they bought the properties, she was told that the waterfront was part of the deal. She said they later learned that they owned the water-side half of the lot and that the rest along Promenade was BBA property.
As the dispute heated up, Clark said she received anonymous threats, that the 'no trespassing' signs were vandalized and that a gate was ripped out, later to be found on the beach. Clark then offered to buy the BBA half of the lot, which the city assessed at $11,000, for $33,000. She reasons the BBA would be better off selling much of the property its owns to abutting property owners as they would be 'better stewards' and it would resolve title issues that make land sales difficult.
When the BBA turned down the offer to buy the land, the Clarks sought to resolve the issue by adverse possession. When Lanphear found in favor of the BBA, the Clarks appealed to the Rhode Island Supreme Court.
Mark McKenney, an attorney who grew up in Buttonwoods and was involved in the legal fight, said Saturday he couldn't 'be more pleased' by the ruling. McKenney said ever since Buttonwoods was platted 150 years ago, it has provided a unique environment where homes on relatively small lots share open space. When platted, he said 80-foot-wide roads were planned, meaning that they literally run next to the front door of some homes. The roads aren't paved to 80 feet and homeowners care for association land as if it is theirs.
'We grew up on Beach Park Avenue,' McKenney said relating that as a boy he questioned his father why 'we had to mow it if we don't own it?'
In the case of Promenade Avenue, McKenney points out the road as shown on the plat map extends east beyond its paved portion to the peninsula point and is part of the 'common' land belonging to the Buttonwoods Beach Association. Further, he questions how the road could be considered private property when city utilities – sewer and water lines – run down it.
He explained that the BBA land is taxed by the city, but because the BBA has no funds, it 'leases' the land to the Buttonwoods Fire District, which has the power to tax the landowners for the services it provides including the maintenance of roads, tennis courts and the meeting hall known as the casino.
As the fire district funded the legal battle, Clark notes the taxes they were paying the district were in part being used against them without their consent.
McKenney put the association's cost for the legal battle at more than $100,000. If anything, he is hopeful it has established the legitimacy of the common land ownership of the BBA and serves as a reminder to prospective purchasers in Old Buttonwoods to carefully understand what they would be buying.
As for the argument property owners would make better stewards of the property, he reasons property owners are already doing that and there is no need for them to own the land.
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Association President Peter Dorsey is pleased that the legal battle is over. He said it's his hope to move on.
'This is not something to gloat about,' he said.
He said the legal battle in a close-knit neighborhood has been 'emotional,' adding, 'Hopefully time heals all wounds.'
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He urged people looking to buy property in Old Buttonwoods to spend what it takes to have a survey completed and 'know what you're buying.'
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In his decision, Suttell writes, 'As the trial justice noted in his decision, the deed to 243 Promenade Avenue refers to the 1882 plat. The eighty-foot public width represented on the 1882 plat is undisputed. Based on the findings of the trial justice, none of which are clearly wrong, there was not a ten-year period of ‘actual, open, notorious, hostile, continuous, and exclusive use of property under a claim of right' across the four predecessors in title to the Clarks.'
During the non-jury trial in Superior Court, the Clarks reasoned that Buttonwoods is a 'private beach community' and, therefore, Promenade Avenue is not a public way.
'The trial justice did not reach the issue, neither do we. Nor did the plaintiffs raise a claim to a prescriptive easement in which exclusivity would not be a necessary element,' Suttell writes.
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Clark called the episode a 'nightmare.' She said she loves being near to the water and she has no plans on leaving.
