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Moser v. Zoning Board of Review of Town of Little Compton

Superior Court of Rhode Island

August 5, 2015

ALBIN MOSER and EILEEN MOSER, Individually and as Trustee of the Eileen M. Moser Trust
v.
ZONING BOARD OF REVIEW OF THE TOWN OF LITTLE COMPTON, By and Through Its Members, and DIANE SOUZA, As Trustee of the Diane D. Souza Revocable Trust

Newport County Superior Court

For Plaintiff: Albin S. Moser, Esq.

For Defendant: Thomas M. Bergeron, Esq.; Richard S. Humphrey, Esq.; Kurt T. Kalberer II, Esq.

DECISION

STONE, J.

Albin Moser (Mr. Moser) and Eileen Moser (Mrs. Moser), individually and in her capacity as Trustee of the Eileen M. Moser Trust (jointly, Plaintiffs), appeal from a decision of the Zoning Board of Review of the Town of Little Compton (the Zoning Board). That decision-dated July 29, 2014-dismissed, for lack of jurisdiction, Plaintiffs' appeal that sought to reverse the Town Building Official, William L. Moore's (Building Official), determination that Defendant Diane Souza (Ms. Souza) did not need a building permit to erect an accessory building (a shed).

This Court has jurisdiction over this matter pursuant to G.L. 1956 § 45-24-69. For the reasons that follow, this Court remands the decision to the Zoning Board.

I

Facts and Travel

Ms. Souza is the Trustee of the Diane D. Souza Revocable Trust that holds the real estate located at 21 Ocean Drive, within the subdivision of Indian Rock Acres in the Town of Little Compton, Rhode Island, which is designated as Assessor's Plat No. 33, Lot 180 (Subject Property). (Zoning Board Hr'g Tr. (Tr.) 3, July 16, 2014.) The Plaintiffs reside at 15 Old Barn Road, also within the Indian Rock Acres subdivision in the Town of Little Compton (the Moser Property). The Moser Property is held by the Eileen M. Moser Trust, of which Mrs. Moser is the Trustee and Mr. and Mrs. Moser are the present beneficiaries.

Beginning in 2012, Ms. Souza undertook major renovations on the Subject Property, including the demolition of a previously existing dwelling and the construction of the now existing residence. In a letter dated June 17, 2013 (2013 Letter), the Building Official informed Ms. Souza that she had reached the maximum lot coverage of ten percent allowed under the Little Compton Town Code (Code) § 14-4.1. Id. at 36. Consequently, the Building Official informed her that nothing could be added to or increased in size on the Subject Property without prior approval of the Zoning Board, namely, that no other structures could be erected. Id.

In November of 2013, Ms. Souza applied for a building permit to build a shed that was ninety-six square feet in size on the Subject Property. Upon review of the application, the Building Official advised that a building permit would not in fact be required and that Ms. Souza could commence the construction of the shed.[1] Id. Ms. Souza went ahead and built the shed. Id. at 37.

On April 16, 2014, after observing that construction had commenced on the Subject Property, Plaintiffs sent a letter to the Building Official communicating their concerns that the Subject Property was already at or beyond its maximum lot coverage under the Code. Id. at 4. Plaintiffs were concerned that Ms. Souza had commenced construction of a shed without any prior approval from the Zoning Board. On May 9, 2014, after the Building Official failed to respond to Plaintiffs' letter within the fifteen days required by § 45-24-54 of the Rhode Island General Laws[2], Plaintiffs filed an appeal of the Building Official's determination that Ms. Souza did not need a building permit with the Zoning Board. Id.

On July 16, 2014, a properly advertised hearing was held before the Zoning Board (the Hearing). Id. at 1. During the Hearing, but before reaching the merits of the appeal, the Zoning Board directed the parties present to address whether Plaintiffs had standing to appeal the determination of the Building Official to the Zoning Board. Id. at 8. More specifically, the Zoning Board requested that the parties argue and present evidence of whether Plaintiffs were "aggrieved parties" as required under § 14-9.7(a) of the Code.[3] Id.

Albin S. Moser (Attorney Moser), acting in his capacity as counsel, argued before the Zoning Board on the Plaintiffs' behalf. Id. at 3. He argued that although the Plaintiffs are not within the 200-feet radius set in § 14-10(b)(6) of the Code (which would give them automatic standing), they are nevertheless proximate to the Subject Property and qualify as aggrieved parties who have standing to appeal the Building Official's determination that no building permit is required. Id. at 7-8. Attorney Moser cited to Rhode Island Supreme Court precedent that recognized that a homeowner who lived within a street or two of the land at issue, and who was in the same established residential district, was an "aggrieved party." Id. at 9.[4] He insisted that because Plaintiffs were only one street removed and part of the same plan/subdivision (Indian Rock Acres), they have standing to appeal. Id. at 9. Attorney Moser pointed to several facts that he believed created an injury necessary to have standing, including: the partial blocking of their view of the ocean; the cluttered appearance of the Subject Property; the effect the cluttered and "overcrowd[ed]" appearance of the Subject Property had on the character of the neighborhood; the effect that said cluttering and "overcrowding" of the Subject ...


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