MacBain v. Town of Portsmouth Zoning Board of Review
| Decision Date | 03 April 2014 |
| Docket Number | C.A. NC-2009-0430 |
| Parties | DAVID MACBAIN, MARY ELIZABETH MACBAIN, THOMAS WHITTINGTON and JUDY A. WHITTINGTON v. TOWN OF PORTSMOUTH ZONING BOARD OF REVIEW, ET AL. |
| Court | Rhode Island Superior Court |
Newport County Superior Court
For Plaintiff: Lynne Barry Dolan, Esq.
For Defendant: Vernon L. Gorton, Esq., Donato Andre D'Andrea Esq.
DECISION
This matter arises before the Court on appeal from a decision of the Portsmouth Zoning Board of Review (the Board). In that decision, the Board upheld the issuance of a building permit to Michael and Maureen Antonellis (the Antonellises) for the construction of a single-family home on property identified as Lot 30A (Lot 30A or the Lot) on Portsmouth Tax Assessor Plat 40. Plaintiffs David and Mary E. MacBain (the MacBains) who own abutting property to the north, and Plaintiffs Thomas and Judy A. Whittington (the Whittingtons, collectively Plaintiffs), who own abutting property to the south, filed a Complaint against the Board and the Antonellises (collectively, Defendants) seeking a reversal of the Board decision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
The Antonellises own Lot 30A, which is located on Prospect Lane in Portsmouth, Rhode Island in an R-20 Zoning District. The property, which is 11, 800 square feet in area and which has 54.5 feet of frontage, does not conform to requirements of the Zoning Ordinance, which mandate that lots in R-20 districts have a minimum lot area of 20, 000 feet and minimum frontage of 110 feet. The parties do not dispute that the Lot fails to meet minimum dimensional requirements for size and frontage. Rather, Plaintiffs argue that Lot 30A is not a legal non-conforming lot of record under the Portsmouth Zoning Ordinance (Zoning Ordinance).
Prior to August 3, 1959, the Town of Portsmouth (Portsmouth or the Town) had no land use regulations, and all lots were legal buildable lots. Although the Town had previously enacted an ordinance on April 1, 1958, establishing the Planning Board (the 1958 Ordinance), that ordinance carefully circumscribed the powers granted under it. The 1958 Ordinance specifically enumerated the Planning Board's power and limited the Planning Board's authority to control platting or subdivision of land to instances in which it was directed to do so by the Town Council. Under the 1958 Ordinance, the Planning Board did not have direct authority over subdivision and platting.
On August 3, 1959, the Town enacted a new ordinance (the 1959 Ordinance), which authorized the Planning Board to restrict the subdivision of land. Although the 1959 Ordinance authorized the Planning Board to control the subdivision and platting of land, that control could only be exercised through the enactment of rules and regulations. Further, the 1959 Ordinance provided that before any rules or regulations enacted under it would have effect, those rules and regulations had to be submitted to the Town Council and be subject to a public hearing, preceded by three weeks of advertisement. The 1959 Ordinance did not contain any immediate restrictions on the right of any person to subdivide his or her property. Accordingly, although the enabling ordinance was adopted on August 3, 1959, the first date on which the Planning Board's rules or regulations were effective in restricting an individual's right to subdivide land was August 28, 1959.
Approximately six years later, in 1965, Portsmouth adopted its first comprehensive Zoning Ordinance (the 1965 Ordinance). The 1965 Ordinance stated, in pertinent part, that it would not "prevent or be construed to prevent the continuance of the use of any building or improvement for any purpose to which such building or improvement or land is lawfully devoted at the time of enactment of this Ordinance." The 1965 Ordinance further provided that "a dwelling is permitted on . . . any plat duly recorded in the records of Land Evidence of the Town of Portsmouth prior to the passage of this Ordinance even though said lot may have been less than the required area and/or frontage." The 1965 Ordinance did not make any reference to August 3, 1959—the date on which the 1959 Ordinance was enacted—or August 28, 1959—the date on which the first regulations under the 1959 Ordinance took effect.
In 1980, Portsmouth enacted a comprehensive revision of its Zoning Ordinance (the 1980 Ordinance). That reenactment, like the 1965 Ordinance, stated that no provision in the 1980 Ordinance "shall prevent or be construed to prevent the continuance of the use of any building or improvement for any purpose to which such building or improvement or land is lawfully devoted at the time of enactment of this Ordinance." The 1980 Ordinance also defined a "lot" as the "whole area of a single parcel of land undivided by a street, under one ownership, with ascertainable boundaries established by deed or deeds of record or a segment of land ownership, defined by lot boundary lines on a land division plan duly approved by the Planning Board under the subdivision control statute."
In 1994, Portsmouth again enacted a comprehensive revision of its Zoning Ordinance.[1]The 1994 amendments to the Zoning Ordinance (the 1994 Ordinance) include a table of dates delineating the status of particular substandard lots as "of record" or not, based on the effective dates of the various Zoning Ordinances. Specifically, the 1994 Ordinance provides that a substandard lot of record is one:
The 1994 Ordinance further provides that a substandard lot of record may be considered buildable for single-family residential purposes regardless of the lot frontage or lot area. Although the 1994 Ordinance defines a substandard lot of record as one which was created by deed or plat recorded prior to August 3, 1959, the regulations did not actually come into effect until August 28, 1959.
Lot 30A was recorded on August 25, 1959 by William Macomber (Macomber). In relation to the Zoning Ordinances outlined above, Lot 30A was recorded three days before August 28, 1959—the first date on which the Planning Board's rules or regulations were effective in restricting an individual's right to subdivide land—but three weeks after August 3, 1959—the date listed in the 1994 Ordinance as determining whether a particular lot is a non-conforming lot of record. In the original recordation, Lot 30A was registered as a plat of land belonging to the Heirs of Isaac Macomber of Portsmouth, Rhode Island. The plan recording Lot 30A identifies the property as being bounded on the east by the Sakonnet River, on the north by the land now owned by the MacBains, and on the South by land now owned by the Whittingtons.
Shortly after Macomber recorded the deed, on September 2, 1959, at a special meeting of the Town Council, the Town Solicitor opined that the plats filed between August 3, 1959 and August 28, 1959 were not legal. Accordingly, at the September 2, 1959 meeting, the Town Solicitor stated that the plats were to be returned to the parties that had filed them. Macomber made a formal request that his plat be accepted. Although the minutes denote that that request was denied, the plat was never returned to Macomber. The recorded plat remains in the Land Evidence Records.
Subsequently, the property was transferred a number of times. On June 2, 1973, the remaining heirs of Isaac Macomber conveyed the Lot to Elizabeth Smiley and recorded the deed in Volume 76 of the Portsmouth Land Evidence Records. On April 17, 1976, the heirs of Elizabeth Smiley conveyed the subject Lot to Foster and Vivian Comstock, which deed was also recorded. Foster and Vivian Comstock conveyed the land to Lawrence and Alison Comstock on April 17, 1976 and recorded the quitclaim deed. On February 2, 2000, Lawrence and Alison Comstock conveyed the subject Lot to Roaring Fork Valley Limited, which deed was recorded. Roaring Fork Valley conveyed the Lot to Joseph M. Furtado, Inc. by warranty deed on July 22, 2002, and recorded the deed. Joseph M. Furtado, Inc. conveyed the subject Lot back to Roaring Fork Valley on August 1, 2002. Finally, Roaring Fork Valley conveyed the Lot to the Antonellises on April 22, 2003. Between its creation in 1959 and the Antonellises' acquisition of the property on April 22, 2003, the property had been transferred at least seven times.
Shortly after acquiring the deed in April 2003, the Antonellises sought permits to construct a home on Lot 30A and filed applications with the Rhode Island Coastal Resource Management Council (CRMC) for the required CRMC Assent. In May 2005, the Zoning Officer forwarded a letter to CRMC that the Antonellises' plans conformed with the Zoning Ordinance. Plaintiffs appealed the issuance of the letter to the Superior Court, arguing that Lot 30A was not lawfully created and that it was therefore ineligible for permits. The Superior Court denied the appeal on the grounds that the issuance of such a letter was not an appealable action.
The Plaintiffs also opposed the application for CRMC Assent. After lengthy hearings in November 2006, CRMC issued an Assent. Plaintiffs appealed the issuance of Assent to the Rhode Island Superior Court. On January 30, 2008, this Court issued a decision denying Plaintiffs' appeal and affirming the issuance of the CRMC Assent. Plaintiffs sought review of that...
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