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Cocci v. Town of South Kingstown

Superior Court of Rhode Island

January 13, 2017

MICHAEL COCCI AND BRENDA COCCI
v.
THE TOWN OF SOUTH KINGSTOWN THROUGH ITS ZONING BOARD OF REVIEW AND ITS MEMBERS, ROBERT L. TOTH, IGOR RUNGE, ROBERT JOHN CAGNETTA, STEPHANIE ANN OSBORN AND ERNEST D. GEORGE, JR., AND CLIFFORD J. FANTEL AND DONNA FANTEL

         Washington County Superior Court

          For Plaintiff: Paul Demarco, Esq.

          For Defendant: John F. Kenyon, Esq. Leonard L. Bergersen, Esq. Michael A. Ursillo, Esq. Nancy Letendre, Esq.

          DECISION

          MATOS, J.

         Before this Court is Michael Cocci and Brenda Cocci's (collectively, the Plaintiffs) appeal of a decision of the Town of South Kingstown Zoning Board of Review, acting as the Planning Board of Appeal (the Board of Appeals). The Board of Appeals' decision overturned a decision of the South Kingstown Planning Board (the Planning Board). The Board of Appeals' decision permitted Clifford J. and Donna Fantel's proposed two-lot subdivision of an existing residential compound lot. For the reasons stated herein, this Court reverses and remands the decision of the Board of Appeals.

         I Facts and Travel

         Defendant Clifford J. Fantel (Fantel) and the late Bernard Singleton (Singleton) developed the Broad Hill Residential Compound (the Compound); the Compound consisted of nine lots. The final plan for the Compound was recorded in 1994. Singleton and Fantel wrote and recorded a Declaration of Conditions, Restrictions and Limitations that was to apply to each lot in the Compound. See South Kingstown Land Evidence Records Book 538, Pages 61-68 (the Declaration). The Declaration states:

"it is the desire and intention of said Bernard H. Singleton and Clifford J. Fantel to impose certain protective conditions, restrictions and limitations upon each and all of the lots of said plat as recorded.
"NOW, THEREFORE, said Bernard H. Singleton and Clifford J. Fantel do for themselves, their successors and assigns, hereby declare and covenant that the conditions, restrictions and limitations hereinafter set forth shall run with the said land and be binding on the said Bernard H. Singleton and Clifford J. Fantel and all parties and persons claiming by, through or under them and binding upon all owners of any lot on said plat and the heirs and assigns of said owners." (Declaration at 1.)

         Section 17 of the Declaration states that "[n]o lot shall be further subdivided." Id. at 4. Contemporaneous with the filing of the Declaration, a second declaration was filed which included the binding acknowledgement that "[n]o further development of the tract or lots therein shall be permitted except by application therefor to the Planning Board of the Town of South Kingstown under the provisions of the Subdivision Regulations in effect at the time of such application." Warranty Deed, dated Feb. 23, 1999. This acknowledgement was required to be made and recorded pursuant to the Subdivision Regulations. (Planning Board decision at 2, ¶ 5.)

         On January 19, 1994, after the final plan for the Compound and the Declaration were recorded, a consent document was executed by Mr. Fantel and Mr. Singleton. (Broad Hill Association LP Consent.) The consent document purported to reserve the right,

"subject to the approval of the Planning Board of the Town of South Kingstown, to amend the plans of the plats entitled 'REVISED FINAL PLAN for Broad Hill'*** in any way or manner, including but not limited to, the right to change the location, size and elevation of streets, utilities, lot lines and boundaries, and/or the number of lots and the boundaries thereof within the two sections of the Broad Hill Residential Compounds; and to that end, pursuant to the reserved powers of the Declaration and Paragraph 3 of the Statements as to Residential Compounds annexed thereto, with regard to any and all lots which as of date hereof are still under ownership of the Developer and Declarant, hereby waives Paragraph Seventeen (17) of the Declaration. . ." Id.

         The Broad Hill Association LP Consent was never recorded. See Planning Board decision, Nov. 12, 2009 (Planning Board decision).

         All nine lots within the Compound were transferred from Mr. Singleton and Mr. Fantel to new owners. Mr. Fantel and his wife became the owner of Lot 6, and the Plaintiffs became the owners of Lot 8. Compl. at ¶¶ 1, 3. In May 2006, the Fantels applied for a minor subdivision of Lot 6. The application for the minor subdivision was not complete until 2009 when the Fantels amended their application to include Planning Board relief from section 17 of the Declaration as a condition of final approval. Therefore, the Planning Board reviewed the Fantels' application as an application for a minor subdivision and an amendment to the Compound's 1993 final plan approval.

         The Planning Board held a public hearing regarding the Fantels' application on August 11, 2009. (Planning Board decision.) At the hearing, three of the Compound's lot owners- Michael Cocci, Brian Crosby, and John Santini-testified in opposition to the Fantels' requested subdivision. Id. at 2-3, ¶ 9. Each lot owner that testified asserted that his decision to purchase his lot was based in part on the fact that he was aware that the lots in the Compound could not be further subdivided. Id. A representative from the home owner's association, Paul DeMarco, also spoke in opposition to the application. Id.

         The Planning Board denied the Fantels' application holding that the Broad Hill Association LP Consent document has no legal effect on the Declaration because the Broad Hill Association LP Consent document has not been recorded. Therefore, the Fantels were not free from the restriction ...


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