The agendas referenced only ‘pavement improvements.’ They failed to reference — and seemingly hoped to disguise — that the Town Council would be considering the highly controversial proposed roundabout.”

Clements' Marketplace, in complaint against the town and RIDOT

PORTSMOUTH — Clements’ Marketplace has filed suit against the Town of Portsmouth and the R.I. Department of Transportation (RIDOT) over a planned roundabout in front of the store as part of major improvements to East Main Road.

The complaint was submitted to Newport County Superior Court on Dec. 15, 2023, just four days after the Town Council voted 4-2 “to respond in the affirmative” to a RIDOT proposal to construct a roundabout at the intersection of East Main Road and Turnpike Avenue. 

READ THE FULL COMPLAINT HERE

Listed as plaintiffs are Clements’ Marketplace, Inc., Clements Properties, LLC, and Tracy Clements Anthony, the store’s owner. They’re represented by the law firm of Partridge Snow & Hahn.

The defendants are the Town of Portsmouth, RIDOT, RIDOT Director Peter Alviti, Jr., and all seven members of the Town Council: Kevin Aguiar, Len Katzman, Daniela Abbott, David Gleason, Keith Hamilton, Charles Levesque, and J. Mark Ryan.

Aguiar, the council president, recused himself from any discussions or voting on the East Main Road improvements as he’s employed by a company that often works with RIDOT. Gleason and Hamilton voted against the roundabout on Dec. 11.

In its complaint, Clements’ requests a jury trial to seek the following relief:

• Declaring the Dec. 11 vote to approve a roundabout in front of Clements’ Marketplace is null and void;

• Declaring that the town and RIDOT violated the Access to Public Records Act (APRA);

• Declaring that any takings of private property in the Town Center District at the junction of East Main Road and Turnpike Avenue in Portsmouth are economic development takings subject to the requirements of the Business Protection Act;

• Enjoining the town and RIDOT from proceeding to issue a request for proposals (RFP) for the installation of a roundabout in front of Clements’ Marketplace;

• Awarding plaintiffs reasonable attorneys’ fees and costs; and

• Awarding such further and other relief as may be appropriate and authorized by law.

‘Taking of property’

Anthony has raised concerns over RIDOT “taking” her property, and said the rotary will hurt businesses like hers. She’s also said the state has not done enough to engage her in the process.

“Not just a few businesses will be hurt with a project of this magnitude, and many will feel the negative effects. A lot of them are very nervous about it,” Anthony told the Town Council on Nov. 30, 2023. That’s when the council originally voted 5-1 to request more information from RIDOT as well as a meeting with transportation officials within two weeks in order to acquire more information about the project. Abbott, who strongly supported the roundabout, cast the dissenting vote. 

After the Nov. 30 vote, according to the lawsuit, RIDOT Director Alviti “issued an ultimatum” to Town Administrator Richard Rainer, Jr. 

“As reported by the town administrator, Director Alviti threatened that if the town did not approve the roundabout plan, the entire East Main Road project ‘will be stopped’ and ‘will not happen soon,’” the complaint states. Rainer, in a memo to the council, said the project would be entirely re-scoped and it would be inserted “lower in the queue” and readdressed at a later date, the complaint says.

The council reversed course on Dec. 11, when it voted 4-2 to side with RIDOT on the roundabout.

Records, meetings complaint

A large chunk of Clements’ suit focuses on allegations that the town and Town Council violated the Open Meetings Act, and that both the town and RIDOT violated the APRA law.

According to the complaint, a Jan. 10, 2022 council meeting agenda did not adequately inform the public of the nature of the business to be discussed or acted upon.

During that meeting, the council voted 6-0 (Aguiar recusing himself) to agree to RIDOT’s “fast-tracking” an East Main Road resurfacing job by bundling several paving projects together so they could start sooner. The action was made possible after an influx of new federal funding through the Infrastructure Investment and Jobs Act (IIJA), which was signed into law by President Joe Biden on Nov. 15, 2021.

In a story about that meeting, The Portsmouth Times reported that multiple roundabouts were originally envisioned for the so-called Town Center project which was conceived in 2003. Under RIDOT’s new plan, however, there would be only one: at the Turnpike Avenue intersection in front of Clements’ Marketplace.

Clements’ also alleges that the agenda language for council meetings on Nov. 27 and 30, 2023 were inadequate under the law. “The agendas referenced only ‘pavement improvements.’ They failed to reference — and seemingly hoped to disguise — that the Town Council would be considering the highly controversial proposed roundabout,” the suit alleges.

Under the complaint, the plaintiffs also claim the public has been denied access to RIDOT’s “100 percent complete” roundabout plans that were provided to the council. “The 100% complete roundabout plans provided to the Town Council for its approval at the Dec. 11, 2023 Town Council meeting are public records. Defendants’ refusal to give plaintiffs access to the plans provided to the Town Council violated APRA,” the suit states.

Business Protection Act

Finally, the complaint alleges that all defendants violated the Business Protection Act. 

“The takings of private property that will be required for the installation of a roundabout in front of Clements’ Marketplace constitute economic development takings covered by the Business Protection Act,” according to the suit. The complaint also alleges, “As demonstrated by the state’s December 2020 Safety Assessment of East Main Road, traffic safety is not a significant basis for installing a roundabout in front of Clements’ Marketplace.”

Charles St. Martin, RIDOT’s chief of public affairs, said the department had no comment on the suit, noting that the state attorney general’s office is overseeing the matter.

Town Solicitor Kevin Gavin did not return an e-mailed request for comment before The Portsmouth Times’ print deadline.