Duffy v. Milder

• Citation: 896 A.2d 27
• Decision Date: 14 April 2006
• Docket Number: No. 2004-256-Appeal, 2004-257-Appeal.,2004-256-Appeal, 2004-257-Appeal.
• Parties: Robert M. DUFFY et al. v. Larry MILDER et al. Larry Milder et al. v. East Greenwich Town Council et al.
• Court: Rhode Island Supreme Court

Page 27

896 A.2d 27

Robert M. DUFFY et al. v. Larry MILDER et al.

Larry Milder et al. v. East Greenwich Town Council et al.

No. 2004-256-Appeal, 2004-257-Appeal.

Supreme Court of Rhode Island.

April 14, 2006.

COPYRIGHT MATERIAL OMITTED

Matthew Oliverio, Providence, for Robert M. Duffy.

W. Mark Russo, Providence, for Larry Milder.

Raymond Marcaccio, Providence, for East Greenwich Preserve Condominium.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice FLAHERTY, for the Court.

We are called upon in this case to determine the rights of neighbors at war over the keeping of horses. This story begins in 1954, when the Poncelet family became engaged in various equestrian activities at their family farm, located on a large tract of land in the Town of East Greenwich, designated as assessor's plat 10F, lot Nos. 24 and 28. Those activities included riding, training, and breeding horses.

By 1997, however, perhaps consistent with the town's gradual evolution from an agricultural to a suburban environment, the Poncelets were disposed to part with the farm. They found willing buyers in James and Paula Malm, who purchased lots Nos. 24 and 28 with the intent to alter the property from its pastoral use to condominiums. The Malms began the long and arduous process of obtaining the necessary permits and approvals attendant to such a development. Eventually, they garnered, subject to several conditions (some in contention here), permission to construct a condominium project, designated as the East Greenwich Preserve.

In July 1998, in conjunction with their proposal to develop their property, the Malms successfully petitioned the town to rezone lot No. 24 and a portion of lot No. 28 from Residential (R-30) and Farming (F) to Commercial Limited (CL). In January 1999, the Town Council again changed the zone of the property to Planned Development Residential or PDR-30.¹

The legislative largesse of the Town Council did not come without strings attached. Those strings included a requirement that the Malms grant an easement in the so-called "corral" area of lot No. 24, consisting of about 2.7 acres.² The easement provides

"the grantors [the Malms], their successors and/or assigns (1) the right to install underground utilities through said conservation area; (2) the right to construct and/or maintain perimeter fencing and the right to maintain said area by cutting the grass and removal of brush and dead and/or dying trees thereby permitting the area to be maintained in substantially the same manner in which it has been maintained; (3) to allow the grazing of horses and/or similar animals; (4) to allow the area to be used for passive recreational purposes by the owner(s) of the `Charing Hall' Manor House and the owners of those condominium units located within the `East Greenwich Preserve[,]' [sic] a condominium development located on Division Street in the Town of East Greenwich, County of Kent, State of Rhode Island, and their successor and/or assigns."

It is also evident from the record that the corral area, a local landmark of sorts, was a pleasing vista that the town wished to preserve as a reminder of its more bucolic past. To further this aim, the town also required the Malms to enter into a conditional easement/agreement, which delineated responsibilities for maintaining the corral area.³

In due time, the condominium project was completed on lot No. 28. Thereafter, the Malms sold lot No. 24 and its single-family residence to Larry Milder and Lisa Milder, who, it seems, had an avid interest in grazing animals and riding horses. Before they closed on the property, the Malms gave the Milders assurances that they could keep horses there, and they secured a zoning certificate from Donald Dailey, a municipal zoning official.⁴ The certificate said that although the property was zoned PDR-30, and horses were not permitted in that zone, "the keeping of horses on this lot is currently considered a lawfully nonconforming and permitted use and shall be allowed to continue until such time as an overt action for discontinuation is conducted by the property owner." In addition, the Malms obtained a building permit allowing the construction of a barn on the property for "storage purposes only."

It was not long before the Milders began to conduct extensive equestrian and related agricultural activities on lot No. 24. They petitioned the Town Council for permission to install an internal grazing management system as well as a riding area, but the Town Council unanimously denied their request. Despite this rebuff, the Milders grazed approximately sixteen animals, including llamas, alpacas, goats, and horses. They also erected internal fences across the open space easement area and removed topsoil to install a riding ring, jumps, and posts. The Milders used the barn, which the town had permitted for "storage purposes only," as a stable where they boarded numerous horses.

Concerned with the intensity of the Milders' property use, including that portion restricted by the open space easement, Donald Dailey wrote a letter to the Milders, instructing them to remove the internal fences placed in the corral area, to remove the riding ring and jumping structures, and to cease horseback riding in the corral area. Alleging that the Milders had disregarded the notice, the town issued a summons, which ordered the Milders to appear before the East Greenwich Municipal Court to answer to the following charges:

"1) The internal fencing network installed inside the grazing/paddock area has not been removed. A recently installed metal gate installed in the paddock fencing has not been removed and original fencing or fencing of like-kind material has not been installed.

"2) All `jumping obstacles' and the like have not been removed from the paddock area.

"3) Horseback riding as a use in the paddock area has not been discontinued.

"4) The number of horses kept on the property exceeds the maximum number (4) allowed."⁵

The town also cited the Milders for building code violations with respect to their use of the barn for the stabling of horses.⁶

The Milders' response was to file a complaint in Superior Court against the Town Council (KC 02-873). Count 1 of their complaint sought declaratory and injunctive relief that maintaining horses and conducting equestrian activities on lot No. 24 constituted a lawful nonconforming and permitted use. Count 2 also sought declaratory and injunctive relief that such activities on the property were consistent with the open space easement. On the town's motion, the court remanded count 1 of the Milders' complaint to the East Greenwich Zoning Board of Appeals.

Shortly thereafter, abutting neighbors, Robert and Sharon Duffy, and Joseph and Kim Herbert⁷ (the Duffys) moved to intervene, and their motion was granted. They filed an answer to the Milders' complaint and also pressed a number of counterclaims. The Duffys requested injunctive relief on the grounds of nuisance, trespass, and breach of the open space easement and conditional easement/agreement. The Duffys also claimed that stabling and boarding horses on lot No. 24 violated the municipal zoning ordinance, and they requested that the court remand all issues concerning the zoning certificate to the zoning board of appeals, to which the Duffys then were appealing the issuance of that document.

On remand, after a hearing on the matter, the East Greenwich Zoning Board of Appeals denied the Duffys' appeal of the zoning certificate and upheld the zoning officer's ruling that the keeping of horses on lot No. 24 was a lawful nonconforming and permitted use. The Duffys then filed a separate complaint in Superior Court (KC 03-82), in which they appealed the zoning board's decision, pursuant to G.L. 1956 § 45-24-69. In this complaint, they further alleged that the Milders' equestrian activities violated existing zoning as well as the terms of the open space easement and conditional easement/agreement. Therefore, they asked the court to reverse the decision of the zoning board, deem the zoning certificate null and void, order the Milders to cease equestrian activities on the property, and restore the corral area to its original condition in accordance with the terms of the open space easement and conditional easement/agreement. This action was consolidated with KC 02-873. Not to be outdone, however, the Milders moved to dismiss count 1 of the Duffys' complaint, the appeal of the zoning board's decision, on grounds that the Duffys had failed to comply with the notice provisions of § 45-24-69.1.⁸ This deficiency, the Milders alleged, rendered the Duffys' appeal untimely under the limitations period imposed by § 45-24-69, and, therefore, the Superior Court had no jurisdiction to hear the matter. The court agreed and dismissed that count of the Duffy's complaint on December 8, 2003.⁹

Finally, the East Greenwich Preserve Condominium Association¹⁰ (the Association) filed a complaint against the Milders in Superior Court (KC 03-522). Its complaint requested that the court enjoin the Milders from maintaining or using horses on the property. It also asked that the Milders be restrained from preventing members of the Association from having access to the open space easement area. The Association contended that the Milders' conduct violated the express language of the open space easement, conditional easement/agreement, and restrictive and protective covenants, and constituted a nuisance. The Association moved to consolidate its complaint with the pending lawsuit involving the Milders, the Duffys, and the East Greenwich Town Council (KC 02-873), which the court granted.

The Duffys and the Association then jointly moved for summary judgment, pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. In essence, they asked the court to rule that the Milders' activities in the corral area violated the provisions of the open space...