NORTH KINGSTOWN – A couple who previously lived next to the 413-foot wind turbine in the North Kingstown Green subdivision off Ten Rod Road before moving to North Carolina are asking a judge to seize $223,025 worth of assets from the turbine’s owner, as part of an ongoing civil lawsuit.
According to Washington County Superior Court records, Scott and Nicole Newcombe, who now live in Mooresville, N.C., asked Judge Kristen E. Rodgers to issue a writ of attachment against Wind Energy Development LLC and the company’s president and owner, Mark DePasquale.
DePasquale is the Newcombes’ former neighbor whose home at 42 Thornton Way is located directly next to the turbine, which was erected in October 2012.
A writ of attachment is essentially a court order that freezes the assets of a person or company in order to ensure that a judgment of the court is upheld. In this case, the Newcombes are seeking $223,025 in order to ensure there is enough money to pay them should they win their case.
Rogers has not yet ruled on the couple’s request.
Brian LaPlante, a lawyer for the Newcombes, declined comment, citing the ongoing case. Steven Boyajian, a lawyer for DePasquale and his company, did not return a message seeking comment.
The Newcombes had staunchly opposed the controversial wind turbine until June 2011 – when DePasquale paid them $15,000 as part of a confidential settlement agreement in which the couple agreed not to publicly or privately disparage the project.
They also agreed not to return any inquiries from the media about the turbine, or provide written or spoken comments about the turbine to any local, state or federal regulatory body, according to a signed copy of the confidential settlement agreement submitted in court documents.
Under the terms of the agreement with the Newcombes, DePasquale agreed to purchase the couple’s home for $612,500 if they decided to move. If the Newcombes were able to sell the house on their own for less than the $612,500 figure, DePasquale would pay the difference as long as it was under $150,000.
According to town property records, the Newcombes bought the house for $575,000 in 2009. The 2013 assessed value is $522,700.
In DePasquale’s deposition, which is included in court documents, he said the agreement to buy the house for more than the selling price was “obscene,” but agreed to the settlement in order to resolve the issue.
The settlement agreement stipulated that if the Newcombes did decide to move, he would buy the house only after receiving federal grant money related to the turbine project, or 180 days after the turbine became operational – which occurred March 1, 2013.
According to the court record, DePasquale acknowledged receiving about $1.2 million in federal grant money for the project in October 2013 and said that money has already been spent. During a Jan. 7, 2014 deposition, Wind Energy Development’s Chief Financial Officer Benjamin Kaplan said there weren’t any budgets that included earmarking a portion of the federal grant money to purchase the Newcombes’ home.
LaPlante, the Newcombes’ attorney, has argued the writ of attachment is necessary because DePasquale is in “serious financial distress” – pointing to about $125,000 in unpaid legal fees he is asking the Newcombes pay as part of the ongoing legal battle.
The current lawsuit stems from a disagreement between both parties over an alleged breach of the confidential agreement.
According to court documents, a woman who was a friend of the Newcombes contacted Phillips Post Road Realty last year and said her sister was interested in purchasing the Newcombes’ property. She mentioned the Newcombes spoke of their displeasure with the turbine and their fight against the project.
A Realtor contacted the listing agent for the property, who said DePasquale was supposed to be buying the parcel back from the Newcombes; the listing agent later called back the Realtor and said he wasn’t supposed to have mentioned that fact.
All of the parties involved in those conversations have been issued subpoenas to be deposed.
In the lawsuit, LaPlante argued the Newcombes “have suffered and will continue to suffer severe and substantial damages” and the settlement agreement was a “valid, binding and enforceable contract.” They asked for the court to issue a declaratory judgment and award punitive damages.
Boyajian, however, argued the Newcombes broke the terms of the contract when they discussed the terms of the settlement, the turbine and their displeasure with it with a potential buyer. He said DePasquale has “suffered damages including the loss of a potential purchase of the property,” and asked Judge Rodgers to dismiss the case and order the Newcombes to pay legal costs associated with defending the lawsuit.
LaPlante has asked for Rodgers to issue a summary judgment in the case, and argued that the alleged breach – which the Newcombes deny occurred – did not interfere with the construction and operation of the turbine. He also argued that DePasquale has not lost any money over the alleged breach.
DePasquale’s lawyers argue it is difficult to quantify any losses associated with “bad publicity” from the dispute with the neighbors. In his deposition, DePasquale said he has been appearing before the Westerly Town Council seeking permission to build two wind turbines in that town, and that the council continues to make reference to the North Kingstown turbine and the controversy that surrounded it.
Rodgers denied the requests from both lawyers for a ruling. The case has been assigned for trial, but no date has been set.
Hundreds of residents attended more than a dozen town meetings in 2011 on both the North Kingstown Green turbine proposal and another proposed turbine closer to the Exeter town line. The majority of those residents voiced their staunch opposition to both turbines.
Among their fears, opponents said the turbine could fall on a home and kill or injure someone; that their property values would be diminished; and the flicker of light and sound could affect the quality of their lives and their health.
Since that time, the Town Council has placed a moratorium on the construction of all wind turbines in North Kingstown.