Ralph A. Tompkins, Jr., Trust A, Plaintiff,
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.
Plaintiff: S. Paul Ryan, Esq.
Defendant: Richard S. Humphrey, Esq.; Andrew Tugan, Esq.
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.
Facts and Travel
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).
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). 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.
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). 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.
November 30, 2017, the Plaintiff timely appealed the issuance
of the building permit. (Zoning Board Decision at
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 and Subdivision Regulations 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
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.
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.
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.
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
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
"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).
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, ...