Burchard v. Buhrendorf

• Decision Date: 06 May 2009
• Docket Number: C.A. NC-2007-0284
• Parties: JOHN C. BURCHARD, JR. v. FREDERICK BUHRENDORF, FRANKLIN H. POND, EUGENE PAULLI, GRAEME BELL, III, and JANE P. CABOT, in their capacities as members of the ZONING BOARD OF REVIEW OF THE TOWN LITTLE COMPTON and the ZONING BOARD OF REVIEW OF THE TOWN OF LITTLE COMPTON
• Court: Superior Court of Rhode Island

JOHN C. BURCHARD, JR.
v.
FREDERICK BUHRENDORF, FRANKLIN H. POND, EUGENE PAULLI, GRAEME BELL, III, and JANE P. CABOT, in their capacities as members of the ZONING BOARD OF REVIEW OF THE TOWN LITTLE COMPTON and the ZONING BOARD OF REVIEW OF THE TOWN OF LITTLE COMPTON

C.A. No. NC-2007-0284

Superior Court of Rhode Island

May 6, 2009

DECISION

CLIFTON, J.

Before the Court is an appeal from a decision of the Zoning Board of Review of Little Compton ("Zoning Board") brought by Appellant John C. Burchard, Jr. ("Appellant"). The Zoning Board denied the Appellant's request for a building permit to reconstruct a fire-damaged three-family house (the "Barn"). Appellant seeks reversal of the Board's decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I

Facts and Travel

The subject property (the "Property") is owned by Appellant and is located at 64 Meetinghouse Lane, Little Compton, Rhode Island in a single-family residential district. (Tr. at 4, 13.) The Property is depicted as Lot 27-3 on Plat 19 of the Little Compton Tax Assessor's records and is a legal nonconforming lot. (Tr. at 4, 41.) The Appellant's mother, Ellen Burchard ("Mrs. Burchard"), was the previous owner of the Property. In 1997, Appellant acquired ownership of the Property and Barn. (Appellant's Application to Zoning Board of Review.)

From 1958 until 1974, Mrs. Burchard utilized the Barn as a theater called the "Carriage House Theater" ("the Company"). (Tr. at 12.) During the years of 1958 until 1974, the Barn also served as a residence for approximately fifteen to twenty actors and actresses performing at the Company. (Tr. at 17.) The Company entered into a contract with the actors and actresses living in the Barn that stipulated the rules and regulations associated with their residency. (Tr. at 21.) Although no monetary rent was required, housing in the Barn served as the actors' and actresses' job compensation. The residential portion of the Barn was comprised of sleeping quarters located on the second floor, one kitchen located on the first floor, and three bathrooms with one on the first floor and two on the second floor. (Tr. at 19.)

In 1974, the Company ceased operation, and Mrs. Burchard converted the Barn's living space into three apartments without obtaining a building permit, special permit, or variance. (Tr. at 27.) After renovations, the Barn contained a total of four bedrooms, three kitchens, and additional bathrooms. (Tr. at 42.) These apartments were rented continuously until November 18, 2005. Id.

On August 4, 1992, the then building official for the Town of Little Compton ("the Town"), George Flanagan ("Flanagan"), wrote a letter ("the Letter") to Mrs. Burchard after the property was inspected following the addition of a sun deck and new room. (Tr. at 37.) This letter informed Mrs. Burchard that during the inspection, Flanagan discovered that the Barn was being used as "three separate apartments with seven total bedrooms rather than one apartment with four bedrooms as listed in the tax assessor's records." (Letter attached to Zoning Board's Decision.) Further, the letter also stated that the use of the Barn as a three-unit apartment complex in a single-family residential zone necessitated a variance. Id. The Letter stated in pertinent part, "[t]o change the approved, four-bedroom, single-family, Carriage House to a three unit apartment complex with a total of seven bedrooms would have required a variance from the Town." Id. The Letter went on to explain that because no variance was ever applied for or obtained, Mrs. Burchard was required to either discontinue her use of the Barn as apartments or obtain the necessary variance. Id. Mrs. Burchard failed to comply with the letter's requirements, and the Town of Little Compton never took enforcement action. Additionally, the Barn has always been listed as a single-family residence by the Tax Assessor's Office. (Tr. at 37-8.)

On November 18, 2005, a fire "badly damaged" the Barn and virtually "totaled" the structure's interior. (Tr. at 6.) Appellant subsequently applied for a Building Permit to repair the damage caused to the Barn by the 2005 fire. Upon reconstruction, Appellant planned to continue the Barn's prior use as a three-unit apartment complex. On March 26, 2007, the Little Compton Building Official, Michael Mello ("Mello"), denied Appellant's application for a Building Permit to "repair [the] fire damaged three-family house." Thus, on March 30, 2007, Appellant submitted an application to the Zoning Board for relief from Section 14-9.3(a) of the Zoning Ordinance. Appellant sought reversal of the Building Official's denial of Appellant's request for a Building Permit.

On May 16, 2007, the matter was heard at an advertised hearing ("the Hearing") before the Zoning Board. The Notice of Public Hearing (the "Notice") appeared in the Sakonnet Times on April 19, 2007 and stated:

Notice of a Public Hearing is hereby given upon the petition of [Appellant], who is Appealing the decision of Little Compton Building Official, Michael Mello to deny him a Building Permit dated March 26, 2007 to "Repair fire damaged 3 family house" at 64 Meetinghouse Lane, Tax Assessors Plat 19, Lot 273. Hearing is set for 7:00 P.M. on May 16, 2007 at the Town Hall, 40 Commons, Little Compton Rhode Island. Any person having a legal interest may appear and be heard, per order of the Little Compton Zoning Board of Review. See Notice; see also Tr. at 3-4

Separate notice was sent by first class mail to all property owners within two hundred feet of the Property. (Tr. at 4.)

At the Hearing, Appellant testified that from the time the Company began in 1958 until the 2005 fire, the Barn was used as a multi-family dwelling. Appellant asserted that the Barn had served as a residence for multiple unrelated people since 1958, despite not being divided into three separate apartments until 1974. (Tr. at 19.) Appellant went on to testify that prior to 1974, the Company required Barn residents to sign leases, evidencing their status as lessees. (Tr. at 21.) Appellant's attorney stated that the use of the Barn as a three-unit apartment complex was, "a natural evolution of a legal nonconforming use that predated the enactment of zoning, which was May of 1968." (Tr. at 43.)

Myron Simmons, a general contractor in the Town of Little Compton for forty-three years, also testified at the Hearing. (Tr. at 5-10). Mr. Simmons explained that he worked on the Barn for Mrs. Burchard and her late husband, John Burchard, Senior in the spring of either 1967, 1968, or 1969. (Tr. at 8.) Mr. Simmons described the work he performed on the first and second floors of the Barn. (Tr. at 9.) Mr. Simmons also testified that while he remembered that actors lived upstairs at the time, he could not remember how many beds or cots were located on the second floor. Id. Additionally, Michael Mello, the Little Compton Building Official, also testified at the Hearing. (Tr. at 36). Mr. Mello passed around the Flanagan Letter stating that the Barn was "always listed as a single-family residence in the Tax Assessor's file." (Tr. at 37.) When questioned by Zoning Board member, Graeme Bell about this statement's authenticity, Appellant confirmed that he had recent knowledge of the Barn's single-family tax status. (Tr. at 38.)

Based on the testimony and evidence before it, the Zoning Board unanimously voted to deny Appellant's request for an appeal from the Building Official's denial of Appellant's request for a building permit. A written decision was filed on May 25, 2007. The instant appeal followed.

Before this Court, Appellant argues (1) that the decision of the Zoning Board is null and void because the public Notice of the Hearing was defective; (2) that the Zoning Board erred in relying on the 1992 Letter from the Town's Building Official due to the defenses of Laches and Estoppel; and (3) that the Barn's use never changed from a multi-person residential to single-family residential use, and therefore, a variance is not necessary.

II

Standard of Review

The standard by which the Superior Court reviews a zoning board's decision is codified in § 45-24-69(d):

The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced

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