Right of Way
The poet Robert Frost once wrote that `good fences make for good neighbors.' But two fences blocking a longstanding right of way to the water have caused a controversy in an East Providence neighborhood that has dragged on for more than three years. This week Jim Hummel takes a look at the right-of-way issue, which has roots in the Rhode Island Constitution.
To see Tabatha Glavin's lawsuit against the city of East Providence, click HERE (pdf).
When Joel Simmons looks out his back window in Riverside, this is what he sees: the Providence River in the distance - with Crescent Beach below, a short walk away.
Simmons: ``When we bought this piece of property, before we even made an offer on it, we looked at who owned what here and where all the rights of ways were to the beach. That's one of the reasons we moved here - to have access to the shore.''
Duval: ``The beaches are open and public above mean high tide, but how do you get there?''
Liza Duval lives next door to Simmons on White Avenue, where the houses are packed in tightly.
The tradeoff: a beautiful water view and a beach within reach. Duval has lived here the past three decades and is very aware of rights of way to the water - something guaranteed in the Rhode Island Constitution and closely monitored by the state's Coastal Resources Management Council.
In the fall of 2009 Duval saw her new neighbor put up two fences - blocking what for years had been recognized as a right of way down to Crescent Beach - even though it hadn't been used for a long time.
Duval: ``It was like `Oh my gosh.' ``I thought they didn't know it was a right of way - so I got my map and I went and showed them that it was a right of way. I was thinking I was saving them the expense and the drag of putting up a fence that had to be taken down.''
``Tabitha Glavin, 61 White Avenue..."
Duval says she got a chilly reception from the owner, Tabitha Glavin, a retired Providence Police officer who bought the house at 61 White Avenue in 2009 for $300,000.
Duval: ``Well, it used to be a right of way and nobody uses it anyway and what are you jealous that I didn't haven't that much land that I could take over? She was very in your face and hostile.''
Glavin put up two fences, a solid fence near the street and a picket fence closer to the water - saying it was for safety purposes because of a steep drop-off. When it was clear Glavin had no intention of taking the fences down, Duval and Simmons went to city officials. The city engineer Eric Skadberg eventually determined it was a city right of way. That was three years ago.
Duval: And a stake went right up in the middle of the right of way - a surveying state - with ROW on it. So I was like, oh great it's a right of way.''
Hummel: ``The city put that there.''
Duval: ``The city put that - one of the surveyors put that there.''
Hummel: ``So in your mind it's been settled by the city at that point.''
Duval: ``Right, right. It's a right of way.''
Hummel: ``Then what happens?''
Duval: ``Nothing, the stake disappears the fence is still there and nothing happens.''
The city's legal counsel at the time disagreed with the city engineer and allowed Glavin to keep the fences up until some agreement could be reached - instead of ordering her to take them down pending a settlement. In late 2011 - a month after the city council held an informal hearing on the issue - Glavin sued the city; then went to court to get a restraining order keeping the fence in place.
But the judge's order said the restraining order would have to be renewed every three months unless, an agreement was reached. That was a year ago.
City Solicitor Orlando Andreoni tells the Hummel Report he has informally continued the agreement with Glavin's lawyer allowing the fences to remain up for nearly a year. Meanwhile the case has gone nowhere. Andreoni said the two sides have not communicated since September - and he added that the city is going to ask to be dismissed as a defendant. With the fences in place, Glavin has no incentive to push the lawsuit.
That leaves Simmons and Duval wondering who's looking out for them - and their neighbors.
Simmons: ``I think the biggest thing for me is that our city officials, whether they be the city manager, the city council, employees, they've all dropped the ball. Nobody has cared enough to follow through and make any kind of decisions.''
Hummel: ``Are you more frustrated with the homeowners, or with the city at this point?''
Duval: ``About equal. I mean the homeowners, I'm now convinced, knew when they bought the property that that was a right of way and had plans from the beginning to put their fence up.
It's just baffling that it's gone this far without being resolved. Did the city really blow it, or does the homeowner know somebody? What is driving this?''
Glavin's lawyer would not allow us to interview Glavin for this story, saying it is her firm's policy not to comment on pending litigation. She pointed to her lawsuit, which claims that the right of way was never recorded in city records.
When we pushed Glavin's lawyer to speak with her client, the lawyer, Lorelei Flanagan warned that if we identified Glavin - a retired police officer - and where she lived, it could put her in danger - even though she filed a public lawsuit with her address included - and gave it at a city council meeting.
Duval says her husband cleared debris about halfway up the right of way back in 2011 - only to find that it had been placed back in the same place a short time later.
Duval: ``The only reason there' so much interest in it, is because they blocked it. If they hadn't put their fences up; if they'd taken them down right away, there would be no issue.''
Hummel: ``Do you have any concern that it would go the other way, that in a court of law they would say you know this really isn't a right of way, it wasn't recorded - all of the arguments they make here. Do you have any concern that those are going to prevail?''
Simmons: ``I honestly don't think they will prevail. Time and time again there's been many people that have tried this before - it doesn't work; there isn't a judge in this state that's going to rule in favor of them, the homeowners at this point. It's something that's enshrined in our constitution. Those right of ways are there and they belong to the people of Rhode Island.''
Duval and Simmons are hoping a new city council - and a new city solicitor - will take a fresh look at a dispute that is now going into its fourth year.
Duval: ``They didn't think anybody would notice.
They didn't think anybody would care 'cause nobody used the right of way. And I think it's still surprising them that we're still fighting it. I think they just assumed that nobody would care enough to fight it and they'd have the bigger yard. It's a simple issue: it's a right of way. How did it get to January of (2013) without it being resolved?''
Hummel: ``Has the city let you down?''
Duval: ``Yeah, I get the feeling if the city solicitor doesn't change or become involved in this, it's in litigation, it's in the discovery period, it's up to the city as the defendant to go to the courts and say we're ready for trail, set a date.''
In East Providence, Jim Hummel for The Hummel Report.