Taylor v. Marshall

• Decision Date: 15 August 1977
• Docket Number: No. 76-200-A,76-200-A
• Citation: 376 A.2d 712,119 R.I. 171
• Parties: Reginald B. TAYLOR et al. v. Joseph F. MARSHALL et al. ppeal.
• Court: Rhode Island Supreme Court

Page 712

376 A.2d 712

119 R.I. 171

Reginald B. TAYLOR et al. v. Joseph F. MARSHALL et al.

No. 76-200-Appeal.

Supreme Court of Rhode Island.

Aug. 15, 1977.

Sheffield & Harvey, W. Ward Harvey, Newport, for plaintiffs.

Leary & Holland, Jeremiah R. Leary, Tiverton, for defendants.

OPINION

PAOLINO, Justice.

The plaintiffs brought this petition for declaratory judgment pursuant to the provisions of G.L.1956 (1969 Reenactment) ch. 30 of title 9, our Uniform Declaratory Judgments Act. They request a declaration by the Superior Court that (1) the proposed sale and conveyance of a certain parcel of real estate is not a "subdivision" as defined either in G.L.1956 (1970 Reenactment) § 45-23-1, or under the rules and regulations of the Planning Board of the Town of Portsmouth and particularly section II, subsection 2-1 thereof; (2) that Glen Farm Road, a private right-of-way, is a "street" within the meaning of § 45-23-1, as well as within the meaning of the rules and regulations of said planning board, particularly subsection 2-1 thereof; and (3) that the defendants in their capacities as members of the Portsmouth planning board have no jurisdiction over the proposed sale and conveyance.

After a hearing before a justice of the Superior Court a judgment was entered declaring (1) that defendants had no jurisdiction over the proposed sale and conveyance; (2) that therefore it was not necessary, required or proper for plaintiffs to apply to the planning board or pursue other administrative remedies; (3) that the Superior Court had jurisdiction under the Uniform Declaratory Judgments Act and particularly § 9-30-2 thereof, to hear and determine the instant cause; (4) that the proposed sale and conveyance was not a "subdivision" as defined in § 45-23-1 or under the Portsmouth planning board's rules and regulations, particularly subsection 2-1 thereof; and (5) that Glen Farm Road, also known as Glen Farm Access Road, is a "street" within the meaning of § 45-23-1 as well as within the meaning of the board's rules and regulations, particularly subsection 2-1 thereof. The defendants thereupon filed the instant appeal. ¹

The petition for declaratory judgment was heard upon the following agreed statement of facts. Reginald B. Taylor, one of the plaintiffs, is the owner of several hundred acres of farmland and residential property in the town of Portsmouth located in large part between Sandy Point Avenue and Glen Street. There is a private road or right-of-way 50 feet in width, macadamized and paved in the middle portion to a width of 16 feet with asphalt, originally constructed in 1923, and running through plaintiff Taylor's farmland from Glen Street on the north to Sandy Point Avenue on the south, and referred to as Glen Farm Road. The public has no rights in this road and the only persons having any rights in it are plaintiffs and owners of other parcels of land bounding on the road who have perpetual rights-of-way over it on foot and by vehicle and for transmission of electric, water and telephone service and have acquired their respective properties from time to time from plaintiff Taylor and his ancestors in title.

On May 22, 1975, Taylor entered into a binding contract to sell to plaintiffs Robert B. Rafferty and Judith M. Rafferty a parcel of land with the buildings thereon containing 3.426 acres of land abutting on said Glen Farm Road for a distance of about 540 feet and also bounding on other contiguous land of Taylor. The parcel in question is located in a rural residential area and contains a colonial-style residence at least 200 years old in which the Raffertys have lived as tenants of Taylor since September 1970.

Pursuant to G.L.1956 (1970 Reenactment) ch. 23 of title 45, the town of Portsmouth enacted an "Ordinance for Subdivision of Land" which authorizes the existing planning board of the town to adopt rules and regulations as therein set forth. The board did adopt "Rules and Regulations Regarding the Platting or other Subdivision of Land." Subsection 2-1 of section II (Definitions) provides in part that:

" 'subdivision' shall mean the division of a * * * parcel of land into two or more lots * * * for the purpose * * * of * * * sale. However, it does not include any division of land into lots * * * of one acre or more when no street is required to serve any of the parcels created by the subdivision."

Subsection 2-2 of the regulations provides that "street" includes:

"street, avenue, highway, boulevard, parkway, road, lane, alley and other ways."

In order to finance the purchase of this property, the Raffertys applied to a bank for a mortgage loan. The bank required a title examination which resulted in the bank requiring the Raffertys to obtain from the planning board an approval of the proposed transfer of title or a declaration from the board that approval was not required. Since neither was granted, plaintiffs, instead of appealing to the zoning board of review under § 45-23-16, brought the instant petition for declaratory judgment under § 9-30-2. In paragraphs seven and eight of their complaint plaintiffs make the following allegations:

"7. Because of said Certificate of Title and because the plaintiffs Rafferty had been advised indirectly and informally by members of the said Planning Board that its approval was necessary, the plaintiffs Rafferty through their attorney requested of the Planning Board among other things a statement that it had no jurisdiction.

"At an informal hearing on said request on April 16, 1975 said Board affirmed its jurisdiction and informed the plaintiffs Rafferty through their attorney that a new plat and petition in conformity with the Planning Board Rules and Regulations must be filed and advertised, and hearings held thereof and that if done the petition for approval as a subdivision would be denied and the plaintiffs Rafferty would then have as their only remedy an appeal to the Zoning Board of Review of said Town of Portsmouth.

"8. On the factual and legal situation herein set forth said Planning Board has no jurisdiction over the proposed conveyance as a subdivision or otherwise either under the enabling statute or under its own Rules and Regulations and to require the plaintiffs to proceed with the filing of a new petition and plat with the attendant inconvenience and expense and with the certainty of disapproval by said Board and where the Board has no jurisdiction is a useless and futile procedure."

The parties further agreed that the sole issue in this case is whether or not the proposed conveyance is a "subdivision" within the purview of the enabling statute and the planning board's rules and regulations. They also agreed that the answer to this question in turn hinges on whether or not Glen Farm Road is a "street" as defined in the enabling act and in the rules and regulations.

The following persons appeared as witnesses at the hearing in the Superior Court.

Joseph Carvalho, the town's director of public works, testified for the board. His testimony is in substance as follows. He is familiar with the Glen Farm Road and has been since he was a little boy. The road is paved, varies in width from 16 feet to 12 feet, winds through a wooded area and is limited to its present width in some areas by a ravine. There is an outer gate of stone piers that are 15 feet apart and an inner gate also of stone piers that are 11 to 12 feet apart. Over the ravine there is a bridge, but two vehicles could not pass on it and the new hook and ladder firetruck would be "taking quite a gamble" to go over the Glen Farm Road because of the narrowness and sharp bends. Fifteen miles per hour was his estimate of the safe speed. The road was originally built for beautification and to serve the residents of the house in which the Raffertys now live and which they wish to purchase. There have been no accidents on the Glen Farm Road as far as he knows. On cross-examination he testified that firetrucks were able to get into the farm to put out a fire in a barn with no trouble in 1944.

Edward D. Fisher, the manager of Taylor's farm, testified that there are no plans to subdivide or develop the farm; that the road was paved around 1924 and has since been resurfaced several times; that the house is of no use to the farming operation; and that there is a second road which runs east/west on the south side of the house which is mostly paved and leads to the East Main Road.

After carefully analyzing the testimony and other evidence before him the trial justice found that the proposed sale and conveyance was not a "subdivision" within the meaning of § 45-23-1 or under the rules and regulations of the planning board, particularly subsection 2-1 thereof; that the Glen Farm Road, a private right-of-way on which the subject property bounds on two sides, is a street within the definition of the statute as well as within the definition set forth in the rules and regulations above referred to, particularly subsection 2-2. He therefore concluded that defendant planning board had no jurisdiction over the proposed sale and conveyance, that is, to approve or disapprove the sale, and that it was not incumbent upon plaintiffs to exhaust any administrative remedies before seeking relief in the Superior Court under the Uniform Declaratory Judgments Act. A judgment incorporating his decision was duly entered from which defendants filed the instant appeal.

In urging reversal, defendants disagree completely with the findings of fact and conclusions of law of the trial justice. They contend that the proposed sale and conveyance is a subdivision within the meaning of § 45-23-1 and the board's rules and regulations and that Glen Farm Road is not a street within the meaning of the statute and the board's rules and regulations. Additionally they argue that plaintiffs should have exhausted their administrative remedies before seeking relief under the Uniform Declaratory Judgments Act.

I

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