County Superior Court
Plaintiff: Paul Demarco, Esq.
Defendant: John F. Kenyon, Esq. Leonard L. Bergersen, Esq.
Michael A. Ursillo, Esq. Nancy Letendre, Esq.
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
Facts and Travel
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
"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.)
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.)
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.
Broad Hill Association LP Consent was never recorded.
See Planning Board decision, Nov. 12, 2009 (Planning
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.
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.
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