The strange case of the vanishing park After acquiring a parcel on Federal Hill for $262K, the City of Providence sold it three years later for a mere $6000 BY STEVEN STYCOS

SEEKING TO PRESERVE a vacant lot on Federal Hill from high-density development, the City of Providence purchased it for $261,741 in 1997 and converted the land into a park for quiet walks. But a mere three years later, Providence sold the park to Harold R. Smith of West Warwick at a tax sale for $6164.

"A mistake was made — that’s for sure," says Thomas Deller, Providence’s director of planning and development.

City Council President John J. Lombardi, whose ward includes the park, quips, "In Italian, we’d call it ‘La comedia.’ " He blames the city’s Law Department.

Led by Filomena Lupo, a longtime neighborhood activist, and backed by the Conservation Law Foundation and the West Broadway Neighborhood Association, the park’s neighbors are fighting to restore the property to the city. They say proper notice of the sale was not given, that Smith technically bought a lot that no longer exists, and that Smith’s lawyer misrepresented the property to Superior Court Judge Stephen Fortunato.

These may be compelling arguments, but Smith has a strong factor in his favor: last summer, the Rhode Island Supreme Court ruled that the property is rightfully his.

The bizarre story of Franciscan Park begins in the 1990s when a developer proposed to build dense residential housing on Plat 35, Lot 553, a parcel of land between Bell and Grove streets, just off Broadway near Route 10. Lupo, whose backyard abuts the property, and other neighbors fought the proposal. As a result, the city purchased the land from Cheryl Guisti in May 1997. To facilitate the deal, Lot 553 was subdivided. The City of Providence purchased the bulk of the land, 92,676 square feet, for $261,741. Three smaller pieces, totaling 13,519 square feet, were sold to abutting property owners for $38,259. The Board of Trustees of Bell Street Chapel, a Unitarian Universalist church, used its additional land for a parking lot, while Lupo, and Robert and Marjoie Maiello, bought small backyard buffers between their houses and the soon-to-be-constructed park.

After building a circular asphalt walk that ambles underneath imitation antique streetlights, the city installed a few benches and deposited some trash barrels. The neighborhood welcomed its new green space and named it Franciscan Park.

But unbeknownst to the neighbors, the park’s possible demise was already underway. In 1997, Guisti owed $6142 in taxes on the property, a detail customarily resolved at a real estate closing. Three years later, she was notified that Lot 553 would be put up for tax sale if she did not pay the taxes. No longer owning the property, Guisti did not respond, and on May 18, 2000, the tax collector sold a tax lien on the city’s three-year-old park to Harold Smith, doing business as Title Investments. Vincent A. "Buddy" Cianci Jr. was the mayor at the time of the transaction.

Under state law, those who purchase a tax lien must wait one year before petitioning the Superior Court to gain ownership at a right of redemption hearing. So it wasn’t until August 2001 that Smith petitioned the court.

He also commissioned a title search that identified the city as an owner, but not Bell Street Chapel, Lupo, or Maiello, so only the city was notified. It responded to Smith’s petition noncommittally, saying it "reserves the right to redeem the premises should it appear redemption be in the best interest of the City."

At an October 2001 hearing before Superior Court Judge Stephen Fortunato, Richard Riendeau, a lawyer for the City of Providence, argued that the tax sale should be void because the city cannot owe itself money. The tax collector made an error by placing the property on the tax sale list, Riendeau concluded. But Fortunato ruled that it was legally too late to raise that argument.

Fortunato, however, was curious. "What is this piece of property and where is it located?" he asked, according to the hearing transcript.

"I believe it is a parcel on Grove Street in Providence on [sic] the Federal Hill area," Riendeau responded.

"I believe it is a vacant lot, Judge," Smith’s lawyer, Douglas Smith, added helpfully.

Fortunato then went on to other issues, finally asking Riendeau whether he planned to give Smith a check and redeem the property that day. When Riendeau hedged, Fortunato concluded the hearing, stating, "The City here has sat on its hands and slept on its rights. The Petition to Foreclose the Right of Redemption is granted."

At no time during the hearing were the words "park" or "open space" mentioned, according to the transcript. In an interview, Lupo contends that Smith’s characterization of the property as a vacant lot was dishonest. "There’s no way they didn’t know it was a park," she says. In court papers, she goes farther, saying that if the court was not misled, "they would have been shocked and judgment [for Smith] would not have been entered."

Harold Smith, Douglas Smith, and Riendeau didn’t return phone calls from the Phoenix.

The City of Providence appealed, and the state Supreme Court upheld Fortunato’s ruling in June 2003. In an unsigned opinion, the justices declared, "It is apparent from the record before this court that the city failed to file an answer setting forth its ownership interest in the property and failed to make a valid offer to redeem." The decision gives no indication that the justices knew the property was a city park.

With his legal battles apparently behind him, Smith marketed the property in summer 2003 by placing an advertisement in the Providence Journal. Steven Meresi, president of the Federal Hill Community Coalition, a neighborhood association, spotted the ad and notified Lupo that her backyard was for sale. Around the same time, council president Lombardi says, he first learned of the problem.

Apparently cognizant that the three abutters didn’t receive notification of how their land had been transferred to him, Smith then offered to "give back" the three small parcels to Lupo, the Bell Street Chapel, and the third parcel’s new owner, Providence lawyer Paul Jabour, for no charge. The chapel accepted the offer, relates Richard Philbrick, treasurer of the Board of Trustees of Bell Street Chapel.

But Lupo said no deal. "I’m one of those people who thinks your rights come first, number one," she says, "and number two, I think it should all be thrown out and the park should go back to being a park."

Lupo has filed suit in Superior Court to nullify the transfer. Having exhausted its legal options, the city hopes Lupo’s suit will also nullify the transfer of the park and it is paying for her lawyer, according to Deller. The Conservation Law Foundation and the West Broadway Neighborhood Association are also seeking to file an amicus brief to support the return of the property to the city and the abutters, according to their lawyer, Deming Sherman.

Lupo’s principal argument is that since she was never notified of the tax sale or the right of redemption petition, both are invalid. She also argues that because Lot 553 was subdivided in 1997, it no longer existed at the time of the tax sale in 2000. And finally, in legal documents, she states that Douglas Smith, while appearing before Fortunato, misrepresented the property as a vacant lot.

The bigger question, adds Sherman, is whether the city can sell its own property at a tax sale. "It’s preposterous," he remarks.

So far, the ongoing dispute doesn’t appear to have had an impact on the park or access to it.

In court papers, Smith responds to Lupo’s suit by saying that thanks to the Supreme Court decision, the case is over. It is "self evident" he adds, that he is not seeking Lupo’s parcel.

Lombardi places the blame for the entire mess on the Law Department. Going back to the Cianci administration and continuing with the mayoralty of David N. Cicilline, he says, "I’ve always had a problem with the solicitor’s office."

To illustrate his view that the Law Department is sometimes delinquent in completing assignments, Lombardi notes how, when he served as interim mayor toward the end of 2002, he wanted the city to start an inner-city boxing program. Concerned with liability issues, he asked the Law Department to investigate, he says, but received no answer. Then 15 months later, he says, he placed the item on the council’s agenda this month and received an opinion within 24 hours.

Responding to a telephone message left for City Solicitor Joseph Fernandez, Cicilline spokeswoman Karen Southern says it wouldn’t be appropriate for the city to comment while litigation in the park case is ongoing.

Meanwhile, Superior Court Judge Allen Rubine is scheduled to take up the case of Franciscan Park on April 16.

Steven Stycos can be reached at stycos1@yahoo.com.