McConnell v. Wilson

• Decision Date: 21 June 1988
• Docket Number: No. 87-301-A,87-301-A
• Citation: 543 A.2d 249
• Parties: Raymond V. McCONNELL et al. v. Elizabeth WILSON, in her capacity as Town Clerk of the Town of South Kingstown. ppeal.
• Court: Rhode Island Supreme Court

Page 249

543 A.2d 249

Raymond V. McCONNELL et al. v. Elizabeth WILSON, in her capacity as Town Clerk of the Town of South Kingstown.

No. 87-301-Appeal.

Supreme Court of Rhode Island.

June 21, 1988.

Stephen A. Fanning, Jr., Timothy T. More, Edwards & Angell, Providence, for plaintiff.

Robert Gates, Gardner, Sawyer, Gates & Sloan, Providence, for defendant.

OPINION

FAY, Chief Judge.

The town clerk of South Kingstown appeals the Superior Court justice's issuance of a writ of mandamus that directed her to record the plaintiffs' condominium declaration for a parking condominium. We affirm.

The plaintiffs, Raymond and Marilynn McConnell (the McConnells), own several parcels of land near Charlestown Beach in South Kingstown. They plan to make a parcel located on the northwesterly side of Charlestown Beach into a parking condominium. The plaintiffs also own an adjacent lot on which a summertime retail store called the Red Store is located. In the past the parcel at issue was used as a parking lot for the Red Store and for beachgoers. Although this area is zoned residential, these parcels have pre-existing nonconforming commercial-use status.

Pursuant to the McConnells' proposed condominium declaration, the forty-seven purchasers will own a fee-simple interest in a portion of the airspace above the land. Each of the forty-seven airspaces will be designated as a unit, and each unit shall be used to park one vehicle. The common areas, which include the land, will be owned by the purchasers as tenants in common.

On November 10, 1986, plaintiffs attempted to file the condominium declaration and plat plan pursuant to the Rhode Island Condominium Act (the Condominium Act). General Laws 1956 (1984 Reenactment) § 34-36.1-2.01. The town clerk refused to record these documents because plaintiffs did not secure the South Kingstown planning board's approval. The town believed that this conversion was a subdivision of real estate. Pursuant to G.L. 1956 (1980 Reenactment) § 45-23-7 proposed subdivision plans must be submitted to the local planning board for approval prior to filing.

On January 29, 1987, plaintiffs brought this suit in Washington County for a writ of mandamus directing Elizabeth Wilson (Wilson), town clerk of South Kingstown, to record the condominium declaration and plat plan. The Superior Court justice granted the requested writ. In his written opinion, the justice held that § 34-36.1-1.06 of the Condominium Act prohibits local authorities from discriminating against condominiums. The justice stated that the proposed condominium was neither a subdivision of real property nor a use that could be regulated pursuant to town zoning ordinances. Consequently, he ordered the clerk to accept and file the condominium documents.

In support of her appeal Wilson reasserts the town's argument that this condominium proposal is a subdivision of real estate under § 45-23-1 and that, therefore, the writ of mandamus improperly issued. We do not agree with this argument.

In a recent case we asserted that the state's Condominium Ownership Act, predecessor to the Condominium Act presently at issue, indicates that the term "condominium" refers to a specific type of ownership. ¹ Town of Westerly v. Waldo, 524 A.2d 1117, 1119 (R.I. 1987). The Condominium Act defines "condominium" as "real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners." Section 34-36.1-1.03(7). The statute further provides that a unit is "a physical portion of the condominium designated for separate ownership or occupancy * * *." Section 34-36.1-1.03(25). Finally, the term real estate is defined as "any leasehold or other estate or interest in, over, or under land, including * * * [s]paces that may be filled with air * * *." (Emphasis added.) Section 34-36.1-1.03(21). This court is convinced that the McConnells' proposed parking condominium satisfies the Condominium Act's definition of condominium. The purchasers will own a fee interest in their airspace unit and an undivided interest in all the common areas with the other purchasers as tenants in common.

Since we have determined that the McConnells' proposal fits the Condominium Act's definition of condominium, we must now determine whether the town of South Kingstown may regulate the proposal as a subdivision. In Waldo, 524 A.2d at 1118-19, we considered the closely related issue of whether a municipality could regulate the conversion of a hotel into a condominium. In that case, the town of Westerly sought to enjoin the conversion arguing that absent a special exception the hotel condominiums did not constitute a permitted use under the existing zoning ordinance. Id. at 1118. We noted that § 34-36-38 "distinctly indicates that a zoning ordinance 'may not prohibit the condominium form of ownership or impose any requirement upon a condominium which would not be imposed upon a physically identical development under a different form of ownership' * * *." Id. at 1119. Consequently we concluded that the Waldo condominium conversion was not a use subject to town zoning authority but was merely a change in the form of the property's ownership. Id. at 1120.

Although the Waldo decision pertains only to zoning ordinances, the Condominium Act also provides that zoning, subdivision, building code, or other real estate use law, ordinance, or regulation, may not prohibit the condominium form of ownership or impose any requirement thereupon that it would not impose upon a physically identical development under a different form of ownership. Section 34-36.1-1.06.

The comments following § 34-36.1-1.06 specify that this section was designed to prohibit discrimination against condominiums by local law-making authorities. ² Id. at comment 1. Consequently the town's argument must fail.

The conversion of the McConnells' lot is a mere change in the form of its ownership and not a subdivision of land. Because this parking area was not subject to subdivision requirements before its conversion, it cannot be subject to these requirements afterward. To require such compliance would amount to blatant discrimination against the condominium form of ownership and would fly in the face of express legislative...