Gary M. Morse v. Michael R. Minardi, in his capacity as the Town of Barrington Tax Assessor ( 2019 )

June 3, 2019
Supreme Court
No. 2018-121-Appeal.
(PC 14-1949)
No. 2018-211-Appeal.
(PM 14-1950)
Gary M. Morse :
v. :
Michael R. Minardi, in his capacity as the :
Town of Barrington Tax Assessor, et al.
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2018-121-Appeal.
(PC 14-1949)
No. 2018-211-Appeal.
(PM 14-1950)
Gary M. Morse :
v. :
Michael R. Minardi, in his capacity as the :
Town of Barrington Tax Assessor, et al.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Indeglia, for the Court. In these actions challenging the assessment of alleged
illegal taxes, the plaintiff, Gary M. Morse (Morse), appeals pro se from judgments entered in favor
of the defendants, various officials of the Town of Barrington, Rhode Island (Barrington);
Sweetbriar, LP (Sweetbriar); and East Bay Community Development Corporation (East Bay)
(collectively defendants). This matter came before the Court on May 1, 2019, pursuant to an order
directing the parties to appear and show cause why the issues raised should not be summarily
decided. After considering the arguments set forth in the parties’ memoranda and at oral argument,
we are convinced that cause has not been shown. Thus, further argument or briefing is not required
to decide this matter. For the reasons outlined below, we affirm the judgment of the Superior
Court in the declaratory judgment action and deny and dismiss the appeal in the tax appeal action.
-1-
I
Facts and Travel
These appeals involve the real estate taxes on several properties and property owners.
Morse is the owner of property located at 2 Westwood Lane in Barrington. Sweetbriar is the owner
of a low and moderate income housing development, which is located on Washington Road and
Bay Spring Avenue in Barrington (the Sweetbriar development).1 East Bay is currently the owner
of the Palmer Pointe housing project, located at Sowams Road in Barrington (the Palmer Pointe
project).
This controversy’s roots formed in August 2003, when East Bay applied to the Barrington
Zoning Board of Review (the board) for a comprehensive permit to develop fifty units of low or
moderate income housing in Barrington. East Bay Community Development Corporation v.
Zoning Board of Review of Town of Barrington, 901 A.2d 1136, 1141 (R.I. 2006). East Bay’s
application went before the board, which denied the application in May 2004, reasoning, inter alia,
that the project did not conform to Barrington’s comprehensive plan. Id. at 1141-42. East Bay
appealed the board’s decision to the State Housing Appeals Board (SHAB) pursuant to
G.L. 1956 § 45-53-5. Id. at 1143. The SHAB reversed the board’s decision because it “was not
consistent with local needs and did not weigh the state’s need for low and moderate income
housing against some of the other concerns that were raised in opposition to the proposal.” Id.
Barrington appealed to this Court, and we affirmed SHAB’s decision. Id. at 1140-41.
On December 2, 2008, after final plan approval for the Sweetbriar development was
granted, the Barrington town council granted Sweetbriar a tax of 8 percent of gross rental income,
1
East Bay, which had developed the Sweetbriar development that is involved in the present
controversy, later sold that development to Sweetbriar.
-2-
pursuant to G.L. 1956 §§ 44-5-12(a)2 and 44-5-13.11.3 Subsequently, East Bay filed an application
with Barrington in March 2013 to develop another low and moderate income housing development
in Barrington, known as Palmer Pointe. In August 2013, Barrington granted comprehensive
permits for the Palmer Pointe project.
However, Morse was unhappy with the tax assessments that the Sweetbriar development
had received; he was also concerned that Barrington was considering applying the same
assessment formula to the Palmer Pointe project. Arguing that the Barrington tax assessor had
overtaxed his property for the 2012 tax year, as a result of under taxing the Sweetbriar
development, on September 4, 2013, Morse filed an appeal to the Barrington tax assessor, pursuant
to § 44-5-26. The Barrington tax assessor denied Morse’s tax appeal on October 19, 2013. Morse
2
General Laws 1956 § 44-5-12 states, in pertinent part:
“(a) All real property subject to taxation shall be assessed at its full
and fair cash value, or at a uniform percentage of its value, not to
exceed one hundred percent (100%), to be determined by the
assessors in each town or city; provided, that:
“(1) Any residential property encumbered by a covenant
recorded in the land records in favor of a governmental unit
or Rhode Island housing and mortgage finance corporation
restricting either or both the rents that may be charged or the
incomes of the occupants shall be assessed and taxed in
accordance with § 44-5-13.11 * * *.”
3
Section 44-5-13.11 provides:
“Any residential property that has been issued an occupancy permit
on or after January 1, 1995, after substantial rehabilitation as defined
by the U.S. Department of Housing and Urban Development and is
encumbered by a covenant recorded in the land records in favor of
a governmental unit or Rhode Island housing and mortgage finance
corporation restricting either or both the rents that may be charged
to tenants of the property or the incomes of the occupants of the
property, is subject to a tax that equals eight percent (8%) of the
property’s previous years’ gross scheduled rental income or a lesser
percentage as determined by each municipality.”
-3-
then appealed that denial to the Barrington Tax Board of Review. On February 26, 2014, the
Barrington Tax Board of Review denied Morse’s appeal; the denial was recorded on March 20,
2014. Subsequently, on April 18, 2014, Morse timely filed a complaint in the Superior Court
appealing his assessment pursuant to §§ 44-5-26 and 44-5-27 (the tax appeal action). On the same
day, Morse filed a separate declaratory-judgment action in the Superior Court (the declaratory-
judgment action) against the same defendants as in the tax appeal action in addition to East Bay,
as developer of the Palmer Pointe project.
Morse filed amended complaints in each action on June 20, 2014. In Morse’s amended
complaint for the tax appeal action, he asserted that Barrington had unlawfully taxed the
Sweetbriar development at the lower 8 percent of gross rental income rate under § 44-5-13.11
instead of the tax rate for the total valuation of the property. Morse asserted that Sweetbriar was
not entitled to the lower tax rate because the property had not undergone “substantial
rehabilitation” as required by § 44-5-13.11. He argued that this was so because the Sweetbriar
development was a newly-constructed complex, and § 44-5-13.11, he contended, applied only to
preexisting buildings. Morse also alleged that the “unlawful” lower tax rate for the Sweetbriar
development resulted in his paying proportionally higher taxes on his property, in order to sustain
Barrington’s budget. Morse claimed that the tax on the Sweetbriar development violated the
Rhode Island Constitution. In conclusion, he asked the Superior Court to set aside the allegedly
disproportionate tax increase that had been imposed on his property.
In Morse’s amended complaint in the declaratory-judgment action, he sought a declaration
that Barrington’s interpretation of §§ 44-5-12(a) and 44-5-13.11 violated the “fair and equal
distribution of burdens” clause under article 1, section 2 of the Rhode Island Constitution. He also
sought a declaration that the lower tax rate for the Sweetbriar development exceeded Barrington’s
-4-
authority under article 13, section 5 of the Rhode Island Constitution. Finally, Morse requested
that the Superior Court set aside the higher tax levy on his property and enjoin Barrington from
assessing the Sweetbriar development at the modified rate.
The hearing justice consolidated the two actions for hearing; and, on July 30, 2015, the
parties submitted stipulated facts and exhibits to the Superior Court. Subsequently, the parties
submitted memoranda addressing the issue of standing and their respective interpretations of
§§ 44-5-12 and 44-5-13.11. In their joint memorandum, defendants contended that both the tax
appeal action and the declaratory-judgment action should be dismissed primarily because Morse
lacked standing to bring either claim.
A hearing was held on January 29, 2016. At that hearing, Morse explained that he had
filed the two Superior Court actions because he believed that he might have an easier time meeting
the standing requirements on public policy grounds with the declaratory-judgment action than with
the tax appeal action. Morse averred, however, that under § 44-5-26 he had standing to pursue his
tax appeal as a “person aggrieved * * * by [an] assessment of taxes[.]” He then argued that the
issue before the Superior Court had sufficiently high public importance for him to pursue the
declaratory-judgment action, even if he had not suffered a particularized injury.
Sweetbriar and East Bay responded that the political arena provided the proper recourse
for Morse to voice his opposition to the Sweetbriar development and the Palmer Pointe project.
They maintained that Morse did not have standing and that the matter was not of such significant
public interest as to warrant the court’s relaxing the standing requirements. They also averred that
-5-
Morse’s interpretation of § 44-5-13.11 was erroneous and that the statute applies to both new
construction and preexisting low and moderate income housing.4
Barrington added that § 44-5-12(a) specifically allows residential properties encumbered
by a low-to-moderate-income restriction to be taxed in accordance with the provisions of
§ 44-5-13.11. However, Barrington firmly agreed with Sweetbriar and East Bay that Morse did
not have standing to pursue his claims.
On December 18, 2017, the hearing justice issued a bench decision in which he addressed
the issue of standing only. He noted that, for a taxpayer to have standing, he or she must have a
personal stake in the controversy beyond that of the public at large. The hearing justice found that
Morse’s alleged increased tax burden was the same injury that any other Barrington taxpayer could
claim and, thus, he had no particularized injury. Therefore, the hearing justice ruled that Morse
lacked standing to bring either action. He also found that the matter was not of such great public
importance for the court to overlook the traditional standing requirements. Without addressing the
merits of either action, the hearing justice dismissed Morse’s claims.
On December 20, 2017, orders entered in both cases dismissing plaintiff’s claims; final
judgment entered in favor of defendants in both actions on that same day. Morse filed a timely
notice of appeal in the declaratory-judgment action on January 8, 2018. However, he filed an
untimely notice of appeal in the tax appeal action on July 12, 2018.
4
Thirteen years earlier, the board had requested and received an opinion letter from the Rhode
Island Housing Authority (RIHA) on the application of §§ 44-5-12 and 44-5-13.11 to newly-
constructed low and moderate income housing. In that letter, which is dated November 18, 2003,
RIHA opined that it interpreted §§ 44-5-12 and 44-5-13.11 to apply to newly-constructed buildings
in addition to preexisting buildings.
-6-
II
Standard of Review
“This case was tried upon a set of stipulated facts. Review of the trial justice’s decision in
these cases is narrowly defined.” Hudson v. GEICO Insurance Agency, Inc., 161 A.3d 1150, 1153
(R.I. 2017) (quoting Delbonis Sand & Gravel Co. v. Town of Richmond, 909 A.2d 922, 925 (R.I.
2006)). “The trial court does not play a fact-finding role, but is limited to applying the law to the
agreed-upon facts.” Id. (brackets omitted) (quoting Delbonis Sand & Gravel Co., 909 A.2d at 925).
“Questions of law and statutory interpretation are reviewed de novo by this Court.” Id. (brackets
omitted) (quoting Hagenberg v. Avedisian, 879 A.2d 436, 441 (R.I. 2005)).
We have stated that “[t]he issue of whether plaintiff had standing to bring [his] appeal is a
mixed question of law and fact.” Cummings v. Shorey, 761 A.2d 680, 684 (R.I. 2000). “A [hearing]
justice’s findings on mixed questions of law and fact are generally entitled to the same deference
as the justice’s findings of fact.” Id. (quoting Palazollo v. State, 746 A.2d 707, 711 (R.I. 2000)).
“But, when those mixed questions of law and fact impact constitutional matters, we shall review
the findings de novo * * *.” Id. (quoting Palazollo, 746 A.2d at 711).
III
Discussion
On appeal, Morse contends that he has standing in both cases because he has been forced
to pay a higher amount on his taxes because of Sweetbriar’s favorable tax treatment under
§§ 44-5-12 and 44-5-13.11. He also argues that the hearing justice erred in declining to address
the merits of his claims. However, as an initial matter, we hold that the declaratory-judgment
action did not set forth a cognizable claim. During this term, in Bluedog Capital Partners, LLC v.
Murphy, No. 2017-138-Appeal, 2019 WL 1962075 (R.I. May 1, 2019), we stated “that the taxing
-7-
statutes provide the exclusive relief to any person aggrieved by any assessment of taxes against
him by any city or town.” Bluedog Capital Partners, LLC, 2019 WL 1962075, at *4 (emphasis
added) (quoting Lehigh Cement Co. v. Quinn, 173 A.3d 1272, 1278 (R.I. 2017)). Under this rule,
a person challenging an assessment of taxes may not maintain a cause of action for declaratory
relief. See id. at *5. Thus, Morse was confined to bringing a tax appeal action under the provisions
of §§ 44-5-26 and 44-5-27. Accordingly, we affirm the judgment of the Superior Court in the
declaratory-judgment action.5
Turning now to the tax appeal action, we note that Morse filed a notice of appeal from the
judgment in that case on July 12, 2018, well after the twenty-day deadline set forth in Article I,
Rule 4(a) of the Supreme Court Rules of Appellate Procedure.6 See Malinou v. Seattle Savings
Bank, 970 A.2d 6, 10 (R.I. 2009) (“In accordance with Article I, Rule 4(a) * * * a notice of appeal
must be filed ‘within twenty (20) days of the date of the entry of the judgment.’”). When Morse
filed a timely notice of appeal from the judgment in the declaratory-judgment action on January 8,
2018, he listed the case numbers for both the tax appeal action and the declaratory-judgment action
on the notice and he requested the transcript in the tax appeal action at that time. However, those
endeavors do not negate the fact that his notice of appeal in the tax appeal action was not timely
5
“In so doing, we follow ‘our precedent of affirming the orders and judgments of a trial court
when there are other valid reasons to support the order or judgment appealed from.’” Summit
Insurance Company v. Stricklett, 199 A.3d 523, 524 n.1 (R.I. 2019) (brackets and deletion omitted)
(quoting McGovern v. Bank of America, N.A., 91 A.3d 853, 861 (R.I. 2014)).
6
Although Barrington seemed to concede at oral argument that the appeal was properly before this
Court, we have consistently stated that “[o]ur appellate jurisdiction may not properly be invoked
when an appeal is filed more than twenty days subsequent to the entry of the judgment of which
review is being sought.” Iozzi v. City of Cranston, 52 A.3d 585, 588 (R.I. 2012) (quoting Wachovia
Bank v. Hershberger, 911 A.2d 278, 280 (R.I. 2006) (mem.)). Thus, because “[t]he filing of a
timely notice of appeal is the ‘sole sine qua non of the taking of the appeal[,]’” Pawtucket
Redevelopment Agency v. Brown, 106 A.3d 893, 900 (R.I. 2014) (quoting State v. Hallenbeck, 878
A.2d 992, 1020 (R.I. 2005)), Barrington could not confer jurisdiction on this Court to hear the
appeal where none existed.
-8-
filed. “It is well settled that causes of action may be consolidated for judicial economy when the
actions involve common law and facts, but that the consolidated matter does not merge into a
single cause of action.” Malinou v. Neri, 197 A.3d 1282, 1286 (R.I. 2018). “Instead, the causes of
action ‘remain distinct throughout trial and in the event of an appeal, a notice of appeal must be
filed for each action.’” Id. (quoting In re Estate of Ross, 131 A.3d 158, 159 n.2 (R.I. 2016)).
Therefore, that appeal is not properly before this Court.
Nevertheless, even if we assume, arguendo, that Morse had timely filed an appeal in the
tax appeal action, his claim would still fail for want of standing. This Court has held that “[a]t its
core, inquiries into standing consider whether the party seeking relief has alleged such a personal
stake in the outcome of the controversy as to ensure concrete adverseness that sharpens the
presentation of the issues.” Warfel v. Town of New Shoreham, 178 A.3d 988, 991 (R.I. 2018)
(deletions omitted) (quoting 1112 Charles, L.P. v. Fornel Entertainment, Inc., 159 A.3d 619, 625
(R.I. 2017)). “The party asserting standing must have an injury in fact that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. (deletions omitted)
(quoting 1112 Charles, L.P., 159 A.3d at 625). “We have also held that a taxpayer has standing if
the individual has a ‘personal stake beyond that shared by all other members of the public at large
or the taxpayers of the town.’” Cummings, 761 A.2d at 684 (quoting West Warwick School
Committee v. Souliere, 626 A.2d 1280, 1284 (R.I. 1993)).
In this case, Morse has not shown that he has a “personal stake beyond that shared by all
other members of the public at large or the taxpayers of the town.” Cummings, 761 A.2d at 684
(quoting West Warwick School Committee, 626 A.2d at 1284). Morse is not challenging his own
taxes; instead, he argues that an illegal application of §§ 44-5-12 and 44-5-13.11 in favor of
Sweetbriar has led to an increase in the taxes levied on his own real property. Any way that Morse
-9-
may try to frame the issue, he does not bear this burden alone. While his proportion of the alleged
increased taxes may have been higher because of the assessed value of his property, all taxpayers
of Barrington necessarily bear some share of the effect of the decrease in Sweetbriar’s tax burden.
Accordingly, it does not appear that the hearing justice erred in determining that Morse lacked
standing to challenge Barrington’s application of §§ 44-5-12 and 44-5-13.11 to the Sweetbriar
development and the Palmer Pointe project.7
IV
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court in the declaratory-
judgment action and deny and dismiss the appeal in the tax appeal action. We remand the papers
to the Superior Court.
7
We have stated that “on rare occasions this Court has overlooked the standing requirement to
determine the merits of a case of substantial public interest.” Warfel v. Town of New Shoreham,
178 A.3d 988, 991-92 (R.I. 2018) (brackets omitted) (emphasis in original) (quoting Burns v.
Sundlun, 617 A.2d 114, 116 (R.I. 1992)). Nonetheless, because Morse has failed to raise that
argument on appeal, we deem the issue waived.
- 10 -
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Gary M. Morse v Michael R. Minardi, in his capacity
Title of Case
as the Town of Barrington Tax Assessor, et al.
No. 2018-121-Appeal.
(PC 14-1949)
Case Number
No. 2018-211-Appeal.
(PM 14-1950)
Date Opinion Filed June 3, 2019
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Gilbert V. Indelgia
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Luis M. Matos
For Plaintiff:
Gary M. Morse, Pro Se
For Defendants:
Attorney(s) on Appeal
Anthony De Sisto, Esq.
Amy H. Goins, Esq.
Michael A. Ursillo, Esq.
Peter F. Skwirz, Esq.
SU‐CMS‐02A (revised June 2016)