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Tompkins v. Buhrendorf

Superior Court of Rhode Island, Newport

August 2, 2019

Ralph A. Tompkins, Jr., Trust A, Plaintiff,
v.
Frederick G. Buhrendorf, in his capacity as member of The Town of Little Compton Zoning Board; Mark Sawoski, in his capacity as member of The Town of Little Compton Zoning Board; Herbert A. Case, in his capacity as member of The Town of Little Compton Zoning Board; William Ryan, in his capacity as member of The Town of Little Compton Zoning Board; Franklin Pond, in his capacity as member of The Town of Little Compton Zoning Board; The Town of Little Compton; Christopher Hall and Katrinka Hall; Defendants.

          For Plaintiff: S. Paul Ryan, Esq.

          For Defendant: Richard S. Humphrey, Esq.; Andrew Tugan, Esq.

          DECISION

          CARNES, J.

         This matter is an appeal from the Little Compton Zoning Board of Review (Zoning Board) decision sustaining the issuance of a building permit by the Town of Little Compton Building Official (Building Official). Jurisdiction is pursuant to G.L. 1956 §§ 9-30-1 and 45-24-69.

         I. Facts and Travel

         Applicants Christopher and Katrinka Hall (Halls) own the subject property located at 17B Rockbridge Drive, Little Compton, Rhode Island, 02874, Plat 47, Lot 10-5 (Lot 10-5 or Property). (Zoning Board Decision at 1). Plaintiff Ralph A. Tompkins, Jr., Trust A is the owner of neighboring property located at 9 Whistler Point Road, Little Compton, Rhode Island. (Compl. ¶ 1).

         Lot 10-5 was created in 2008 as a result of the subdivision of the Property. In May 2007, Edward and Claire Thompson, the owners of Lot 10-1, submitted a Minor Subdivision Application to the Planning Board of the Town of Little Compton (Planning Board), seeking to subdivide their 5.4 acre lot into two lots under § 2.2.2(a) of the Little Compton Subdivision Regulations, titled "Two-Lot One-Time-Only Compound[.]" See June 5, 2007 Planning Board Meeting Minutes at 2. Subdivision Regulations § 2.2.2(a) allows for "the division of land into not more than two (2) lots, without the provision of a street where one would otherwise be required." Little Compton Subdivision Regulations, Appendix C, Art. 2, § 2.2.2(a).[1] On June 5, 2007, the Planning Board unanimously approved of the One Time Only Subdivision, but this was "conditioned upon the Little Compton fire chief inspecting and approving the travel way marked on plan as Lane for Travel and that it leads to a public street[.]" (June 5, 2007 Planning Board Meeting Minutes at 2). On July 23, 2008, the Planning Board gave the final approval for the subdivision of Lot 10-1 and the approved subdivision plan was recorded in the Town Plan Book at Book 16, Page 36. No appeal was taken within the twenty days following the Planning Board's final approval. (Zoning Board Decision at 3); see Little Compton Subdivision Regulations, Appendix C, Art. 8, § 8.11.3.[2]

         On August 8, 2017, the Halls purchased the Property for $355, 000. Although the Property had exchanged hands several times prior, it was still vacant at the time the Halls took possession of it in 2017. Before applying for the building permit, the Halls made certain improvements to the Property's right of way as required by the approved subdivision plan prior to obtaining a building permit. (Zoning Board Decision at 3).[3] The Halls further prepared architectural and engineering plans for their home and submitted them to the Town for review. On November 1, 2017, the Halls filed their building permit application to construct a residence and a garage on the Property. (Zoning Board Decision at 1). Building Official Daniel P. Joubert, Sr. approved and issued the building permit on November 7, 2017. Id. at 2.

         On November 30, 2017, the Plaintiff timely appealed the issuance of the building permit. (Zoning Board Decision at 1).[4] Therein, the Plaintiff claimed the building permit should not have been issued because the Property did not have the 175 feet of "minimum street frontage" pursuant to § 14-4.1 of the Little Compton Zoning Ordinances. In a memorandum submitted to the Town Solicitor shortly thereafter, the Plaintiff's attorney, Paul Ryan, further explained that the different definitions of a "street" found in Little Compton's Zoning Ordinances[5] and Subdivision Regulations[6] conflicted with each other as well as the mandatory definitions found in the Rhode Island Zoning Enabling Act of 1991 §§ 45-24-27 et seq., and the Rhode Island Land Development and Subdivision Review Enabling Act of 1992, §§ 45-23-25 et seq. (Subdivision Review Enabling Act). As a result, Mr. Ryan asserted that Lot 10-5's private right of way, created as part of Subdivision Regulations § 2.2.2(a), does not constitute a street.

         The Little Compton Zoning Board of Review, acting as the Board of Appeals, held a hearing for the Plaintiff's appeal on January 17, 2018. (Tr. at 2, Jan. 17, 2018.) At the outset of the hearing, the Halls' attorney, Gerald Petros, moved to dismiss this appeal because the Zoning Board could not deny the issuance of the building permit on the basis that the Plaintiff provided. Id. at 4. Since the Property was created through the subdivision of Lot 10-1 as permitted by Subdivision Regulations § 2.2.2(a), providing for the creation of a two-lot subdivision "without the provision of a street where one would otherwise be required[, ]" Mr. Petros explained that the Property did not require 175 feet of street frontage as required by § 14-4.1 of the Little Compton Zoning Ordinances. Id. at 4-5. Because no appeal was taken within the twenty days following the Planning Board's final approval of the subdivision on July 23, 2008, Mr. Petros asserted that the Planning Board's 2008 decision was no longer challengeable or appealable as of August 13, 2008. Id. at 6. Mr. Petros further explained that the Halls had already made the improvements to the Property necessary to obtain a permit and had put down the foundation before the Plaintiff's appeal was filed. Id. at 7. Additionally, Mr. Petros contended that the Zoning Board did not otherwise have the authority to assess the validity of Subdivision Regulations § 2.2.2(a), and therefore could not deny the issuance of the building permit on this basis. Id. at 8-9. Mr. Petros asserted that any potential challenge to the validity of Subdivision Regulations § 2.2.2(a) could not be used to retroactively challenge the Planning Board's approval of this subdivision from ten years ago. Id. at 9-10.

         The Plaintiff's attorney, Paul Ryan, argued that Subdivision Regulation § 2.2.2(a) is not in compliance with state law because it creates a lot with no lawful "frontage" abutting a "street." Id. at 13-14. More specifically, Mr. Ryan claimed that the Property's private right of way, created as part of Subdivision Regulations § 2.2.2(a), does not constitute a "street" under the § 14-10(98) of the Little Compton Zoning Ordinances or the Subdivision Review Enabling Act. Id. However, when asked directly, Mr. Ryan conceded that the essence of the appeal was the argument that Subdivision Regulations § 2.2.2(a) is invalid for it conflicts with the Zoning Ordinance and the Subdivision Review Enabling Act. Id. at 20. Although he further conceded that no one appealed the Planning Board's approval of this subdivision in 2008, Mr. Ryan argued that the building permit itself was "the real notice of what had happened with this subdivision." Id. at 15-18. In support of this argument, Mr. Ryan points to the fact that the Property remained vacant for the ten years following the approval of the subdivision. Id. at 18.

         In response to Mr. Ryan's acknowledgment that the sole basis of this appeal was to challenge the validity of Subdivision Regulations § 2.2.2(a), Mr. Petros argued the purpose of this appeal was an attempt to collaterally attack the Planning Board's original approval of the subdivision in 2008. Id. at 21. Mr. Petros explained that the Zoning Board should not reconsider the Planning Board's 2008 approval of the subdivision as part of the instant appeal because the Zoning Board has no role in determining the legality of the Subdivision Regulations. Id. at 21-22. At one point before the Board of Appeals, Mr. Petros stated that the actual posting of the Planning Board's decision was the legal notice required under the Planning Board Regulations in 2008 and, therefore, the question of personal knowledge or actual knowledge of the subdivision was not the standard to apply. Id. at 22. Mr. Petros claimed that the instant building permit appeal is effectively an appeal of the Planning Board's approval of the subdivision in 2008 because the Plaintiff raised no issues relating to the substance of the building permit. Id. at 23.

         After brief deliberation, the Board of Appeals granted Mr. Petros's oral motion to dismiss the appeal because the Plaintiff's sole argument pertained to the legality of what happened before the Planning Board in 2008 and not the building permit at issue on this appeal. Id. at 25-28.

         On February 8, 2018, the Board of Appeals issued its written decision, recorded in the Little Compton Land Evidence Records at Book 317, Page 309. The Decision states:

"The Appellants only challenge is that the Building Official should not have issued the building permit because the Property does not have 175' of frontage on a 'street.'
"The Building Official correctly and properly issued the Building Permit because the 2008 subdivision approval that created the Property provides for and approves access to the Property. In fact, Appendix C Article 2.2.2.a of the Code specifically permits subdivision 'without the provision of a street where one would otherwise be required.'
"The Building Official correctly and properly issued the Building Permit for the Property because the Halls' application met all of the necessary requirements for a building permit." (Zoning Board Decision at 2).

         The Zoning Board further found that "[t]he frontage and access issues raised in the Appeal are the same issues that the Planning Board considered and decided in their July 23, 2008 subdivision approval." Id. at 3. The Decision further states "Appendix C Article 8.11.3 of the Code requires that an appeal of a Planning Board decision be appealed to the Board within 20 days after that Planning Board decision is posted and recorded." Id. Having determined that "[t]he time for any challenge to the Planning Board's decision that created the subdivision/buildable lot expired in August of 2008[, ]" the Zoning Board found it did "not have jurisdiction to reconsider or review the July 23, 2008 Planning Board decision because the Appeal is untimely." Id. The Decision further states:

"The Board recognizes that "[Subdivision Regulation § 2.2.2(a)] is in accord with the remainder of the Code, The Town Comprehensive Plan, the Rhode Island Zoning Enabling Act and the Rhode Island Land Development and Subdivision Review Enabling Act of 1992.
"The Board presumes that any Regulation enacted by the Planning Board is valid and enforceable. D'Angelo v. Knights of Columbus Bldg. Ass'n, [89 R.I. 76');">89 R.I. 76, ...

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