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In 1984, Robert Lamoureux purchased an oceanfront parcel of land on Ocean Road in Narragansett, Rhode Island, described by The Surfrider foundation as "a diamond on the necklace that is Rhode Island’s beautiful coastline." Lamoureux subdivided the land into two parcels, one of which was adjacent to a parcel of land owned by New York Businessman Saul Nulman. In 2006, the Nulman family created the Rose Nulman Park Foundation to "preserve and maintain" the property for use as a public park, free of charge and under the name "Rose Nulman Park," in honor of Nulman’s late mother. Under these terms, the foundation was prohibited from disposing of the land unless they ensured that the property was permanently maintained and preserved for its designated use as a public park. If the terms were violated, the trust imposed a $1.5 million penalty payable to New York Presbyterian Hospital.
The adjacent Lamoureux property, located at 1444 Ocean Road, was developed under a separate entity known as The Four Twenty Corporation. The company hired Craig Richard Carrigan, a registered professional engineer, to prepare a site plan, paying him $30,000 for his engineering services. Carrigan’s plan was subsequently used in connection with the issuance of building permits and thereon, included a note informing the viewer that the boundary lines conformed to the Class III survey standards as adopted by the Rhode Island Registration of Professional Land Surveyors. A Class III survey is defined as a "data accumulation survey," which "measure[s] and show[s] the relative positions or locations of physical features to a stated graphical scale … "This definition includes the caveat that "[t]o the extent that property lines are reflected on such plans, they are to be regarded as pictorial only, unless such boundaries are also certified to a Class I, Class II, or Class V standard."
Four Twenty proceeded to build a magnificent 2,400 square foot, three bedroom residence with a septic system and a sweeping driveway, all in reliance on Carrigan’s plans. When the project was completed, Four Twenty entered into a purchase and sale agreement to sell the property for $1.9 million. Before completion of the transaction, the buyer commissioned Richard S. Lipsitz, a Professional Land Surveyor and the president of Waterman Engineering Company to perform an independent survey of the property. Lipsitz performed a Class I survey to verify the location of the property lines and to ensure the marketability of the property. Upon completion, Lipsitz’ informed the buyer that the home was built on the wrong lot and was instead, located entirely on the Nulman Trust Property. The buyer naturally terminated the purchase agreement.
In early 2011, Carol Nulman, on behalf of the trust, learned that the structure had been built on the protected trust property. She informed Lamoureux that the land was not for sale and that the new home would have to be removed. The trust subsequently filed a lawsuit in the Washington County Superior Court on March 11, 2011, asserting that the structure constituted a "continuing trespass" on its property while concurrently seeking a mandatory injunction ordering Lamoureux to remove all improvements and to return the Nulman property to its original condition. A preliminary injunction hearing was held on June 21, 2012.
After examining the surveys, everyone agreed with Lipsitz’ conclusions which, in addition to rejecting Carrigan’s work, concluded that the structure encroached upon 133,000 square feet of the Nulman property, or about six percent of the land. Arguing that the encroachments were diminutive, the owners asserted that the encroachments were not enough to impair the use of the property as a public park.
Faced with the prospects of removing everything and relocating the house to another lot, Lamoureux pled hardship, stressing that it would cost him between $300,000 and $400,000 to move the building assuming, of course, he could obtain the necessary permits. In spite of the evident hardships associated with removing the building, the court ordered Lamoureux to remove everything. Much to his chagrin, the dispute escalated in late 2013 after the Rhode Island Chapter of the Surfrider Foundation joined the suit as amicus curia (friend of the court), to support continued public access to the beach and to discourage a relocation due to the potential impacts on the surrounding environment comprised of sensitive waterfront habitat. Amongst their varied legal points, the foundation pointed out:
The first questionable decision for a professional real estate developer is found in the fact that Defendant Lamoureux retained a professional engineering firm, Carrigan Engineering, to perform critical survey, site design and permitting work without requiring the firm to demonstrate proof of professional liability insurance. Given Appellant Lamoureux’s "experience" as a developer, the value of the lot and the cost of construction (in excess of $620,000), one would think that he would have been more careful in making certain that his contractors were properly insured. Although the presence of professional liability insurance would not have prevented the continuing trespass from happening, it would have provided the basis for an alternative remedy at law to make the Appellants financially whole that would not involve a coercive taking of property dedicated to public use and enjoyment If there was proper malpractice insurance in place, there is little doubt that no one would be looking to a park or a private charitable foundation to unwillingly give up their property to account for the Appellants’ negligence.
… Lamoureux knew or should have known that surveys come in different degrees of accuracy. . . Lamoureux should have known that the survey work to be performed by Carrigan needed to meet applicable state standards for a boundary line survey. The Class III survey performed by Carrigan Engineering did not meet these state standards. The Court should find it unacceptable that both a professional property developer and a professional engineering firm cut corners on critical information like a site survey that would serve as a foundation to the whole property development process. It is in precisely this type of circumstance–where professionals fail to take reasonable steps to ascertain a property boundary–that the courts have recognized that mandatory injunctive relief is appropriate without consideration of the relative convenience of the hardship involved. What might be an "innocent mistake" for an individual property owner building his own home for the first time, is not the case for those in the business of property development who should reasonably be held to a higher standard of knowledge and care.
While either one of these occurrences might be describable as a mistake, the two of them together clearly rise to a level of negligent conduct by two professionals in their respective fields (real estate development & engineering and site planning). For this reason, any loss resulting from that lack of care should be borne by the Appellants and not by the Rose Nulman Park Foundation.
After consideration of the various arguments, the court issued a written decision about the "unfortunate situation," on September 11, 2012, acknowledging that despite the fact the defendants had relied on Carrigan’s plans, their reliance did not shift their responsibility for the trespass. The defendants filed a notice of appeal on November 2, 2012 and by a consent order entered in the following month, the Superior Court judgment
was stayed pending another appeal before the State Supreme Court which, not surprisingly, upheld the lower court rulings. The court recognized that Lamoureux’s reliance on the Carrigan plans was "utterly reasonable," and as such, he had the "clean hands" which could have made a balancing of the equities possible. The court’s decision was though tempered by the points raised by Surfrider, finding it "curious" that Lamoureux, as someone who, according to his own testimony, has been developing real estate for approximately forty years, was "entirely unaware" of the different classes of surveys. In addition, the court reasoned, given the expenditure of the $30,000 fee for Carrigan’s engineering plans, why hadn’t he questioned the caveat that the work complied only with a Class III survey.
Although not unsympathetic to Lamoureux’s plight, the court was "convinced" that it would be unjust to transfer title to a portion of the Nulman property, ruling that it was similarly innocent and that they should not be forced to give up any of its property. The court stated that the Nulman Trust was similarly "put to the inconvenience of protecting its right to its property as a consequence of wanting to ensure that the public would always be able to enjoy the property in its natural state. If the court found for Lamoureux, it would have constituted a judicial taking of property for private benefit. "[T]he duty of the courts is to protect rights, and innocent complainants cannot be required to suffer the loss of their rights because of the expense to the wrongdoer."
Following the court ruling, Four Twenty sought permission from the state’s Coastal Resources Management Council to relocate the house nineteen feet closer to protected wetlands. Another group, known as "Save The Bay" appealed that decision to the Superior Court. Judge William E. Carnes Jr. denied the request noting that the group lacked standing to challenge the decision as they constituted an "ambiguously defined group" who "might" be hurt by the decision. In his ruling, Carnes wrote, "On rare occasions, this Court has overlooked the question of standing and proceeded to determine the merits of a case because of a substantial public interest in having a matter resolved … this is not such a rare occasion. Moving a house over 19 feet is not a matter of substantial public interest." Save The Bay has not yet decided if they will appeal that decision.
According to Lipsitz, who was also the Secretary for the state’s Board of Registration for Professional Land Surveyors, "We’ve been telling people for years that sooner or later somebody was going to be harmed. It’s not going to be a little piece of a fence or a swing set or somebody’s shed that’s across a property line. It’s going to be a big one, and this was a big one. Carrigan isn’t a surveyor and never was a surveyor," Lipsitz said. "If you’ve seen the plan that was approved here it looks like a survey," Lipsitz said. "Except there was not a survey and it wasn’t done by a surveyor. I wish I could get $30,000 to do a lot survey–I would have retired a long time ago. It makes it look like the surveyor just screwed up and that’s not what happened here." Lipsitz believes Carrigan’s initial plans may have been confusing and drafted in a manner that could have been interpreted by officials as both a survey and a development proposal. In spite of the oversight by the city, they were not found culpable in their actions.
The case raised a lot of questions regarding the role of the various classes of surveys permitted in Rhode Island. The Class III survey, commonly referred to elsewhere as a "paper survey," a "record boundary plat," or "compilation plat," are historically problematic and commonly lead to eventual problems. They are a disservice to the public no matter what type of disclaimer is placed on them as they still appear to be surveys and consequently, decisions are made based upon them. Indeed, most people are unfamiliar with the various types of surveys and whenever a plat map depicts boundary lines, as was done in this case, they naturally believe they are what they appear to depict–boundary lines. In this case, the problem was exacerbated because the map was prepared by a Civil Engineer and not a Land Surveyor. Still, it is the Professional Land Surveyor who gets the bad rap as the media continues to refer to engineering errors such as this as being survey related when they are not. They are civil engineering errors and clearly, Civil Engineers have no business conducting boundary line surveys.
For more information regarding the Rhode Island Standards, see: http://www.bdp.state.ri.us/documents/surveyors/ProceduralTechnicalStandards.pdf
Special thanks to Mark Freel, Attorney at Law, Edward J. OBrien, PLS, and Robert Dahn, PLS for their contribution to this article.
Michael Pallamary, PS, is the author of several books and numerous articles. He is a frequent lecturer at conferences and seminars and he teaches real property to attorneys and other members of the legal profession. He has been in the surveying profession since 1971.
A 2.359Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE