The Shelter Harbor Conservation Soc'y Inc. v. Rogers

• Decision Date: 17 June 2011
• Docket Number: No. 2010–16–Appeal.,2010–16–Appeal.
• Parties: The SHELTER HARBOR CONSERVATION SOCIETY, INC.v.Charles A. ROGERS et al.
• Court: Rhode Island Supreme Court

21 A.3d 337

The SHELTER HARBOR CONSERVATION SOCIETY, INC.

v.Charles A. ROGERS et al.

No. 2010–16–Appeal.

Supreme Court of Rhode Island.

June 17, 2011.

Adam M. Ramos, Esq., Providence, for Plaintiff.Robert G. Flanders, Jr., Esq., Providence, for Defendant Rogers.Michelle A. Buck, Esq., for Defendant Town of Westerly.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

The plaintiff, The Shelter Harbor Conservation Society, Inc. (the Society or plaintiff), appeals from a Superior Court judgment granting Charles A. and Nancy L. Rogers's (the Rogerses or defendants) motion for summary judgment. The Society argues that a genuine issue of material fact exists about whether the defendants' lots had merged under the zoning ordinance of Westerly, Rhode Island. Specifically, the plaintiff contends that the evidence contained divergent interpretations of the map depicting the Rogerses' lots, and the trial justice therefore improperly weighed the evidence at the summary-judgment stage when she granted the motion consistently with one of these interpretations in concluding that the lots had not merged into one. The Society maintains that a trial on the merits is necessary to resolve this issue. Additionally, the plaintiff argues that the trial justice erred when she stayed its attempts to obtain discovery from the Rogerses and their attorney. This case came before the Supreme Court for oral argument on March 29, 2011, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. Subsequent to our consideration of the parties' submitted memoranda and oral arguments, we are satisfied that cause has not been shown, and we proceed to decide the appeal at this time. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel

The defendants, who are married, are the owners of certain property in Westerly, Rhode Island (Westerly or the town). Specifically, they own the property designated as assessor's plat No. 135, lot Nos. 66, 66–A, and 66–B. The lots in question are contiguous and are located on Wagner Road. The Society, a Rhode Island corporation, owns property in the same subdivision.

These lots are reflected on a map entitled “Map of Bungalow Sites called Musicolony Property of Dr. Franklin D. Lawson, in the Town of Westerly, Rhode Island” (map).¹ This map was recorded in the Westerly land evidence records in 1912. The map shows lot Nos. 66, 66–A, and 66–B enclosed by solid lines and each labeled with four numbers inside these solid lines. Lot No. 66 contains the numbers 1, 2, 3, and 4; lot No. 66–A contains the numbers 5, 6, 7, and 8; and lot No. 66–B contains the numbers 9, 10, 11, and 12.

On or about June 1, 1984, the Rogers Profit Sharing Plan (the plan) acquired these lots. On June 20, 1985, the plan transferred lots 5, 6, 7, and 9 comprising lot No. 66–A to defendants as tenants by the entirety.² On January 31, 2002, the plan transferred lots 1, 2, 3, 4, 9, 10, 11, and 12, representing lot Nos. 66 and 66–B, to the Rogerses as tenants by the entirety. On March 27, 2003, corrective warranty deeds were recorded to reflect that lot No. 66 was transferred to Charles A. Rogers and lot No. 66–B to Nancy L. Rogers, rather than to the pair as tenants by the entirety.

Lot Nos. 66, 66–A, and 66–B each total 10,000 square feet and are undeveloped. On September 26, 2003, the Rogerses submitted three requests to the town for zoning certificates designating lot Nos. 66, 66–A, and 66–B as building lots for single-family residences. The town zoning official issued the certificates on that same day.

On August 8, 2007, the Society filed a complaint for declaratory judgment and injunctive relief against the Rogerses and the town zoning official, building official, and finance director. The plaintiff alleged that the twelve individual lots merged under the Town of Westerly Zoning Ordinance when the lots came under common ownership either in 1984 when the plan acquired the property or in 2002 when lot Nos. 66 and 66–B were transferred to the Rogerses as tenants by the entirety.³ Once that occurred, plaintiff claims, the lots became one 30,000–square–foot lot that could not later be divided without the procurement of further relief, such as planning-board approval and a dimensional variance from the zoning board. Therefore, the Society alleged that the corrective warranty deeds and the zoning certificates were null and void because they were issued after the merger and in violation of Westerly's subdivision regulations. Accordingly, plaintiff sought a declaration that the issued zoning certificates were invalid, that the property merged into one 30,000–square–foot lot, that the zoning official's approval of the certificates was void, and that the property could not be subdivided without the appropriate approval and zoning relief. Further, the Society requested that the Superior Court restrain the Rogerses from selling the lots while the litigation was pending and to restrain the building official from issuing building permits for the three lots.

In response, defendants, pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, filed a motion to dismiss plaintiff's complaint on October 2, 2007, on the grounds that the Society lacked standing to enforce Westerly's zoning ordinance, specifically, its merger provision, and that the complaint did not demonstrate that plaintiff had been injured in fact. In response, the Society argued that it was entitled to relief because the lots had merged by operation of law, and the Rogerses' failure to pursue the proper zoning and subdivision procedures “denied it of its right to notice and an opportunity to be heard.” The motion was heard before a trial justice of the Superior Court on January 22, 2008, and an order granting the motion was entered on January 24, 2008. A final judgment was entered that same day from which plaintiff promptly filed a notice of appeal.

The case was then mediated in this Court while the appeal was pending and was resolved by agreement of the Rogerses to “waive any defense they might otherwise have to the claims * * * on the grounds that the plaintiff lacks standing or that the claims are not ripe for adjudication.” ⁴ Accordingly, an order from this Court was filed on October 23, 2008, vacating the judgment that dismissed the complaint. The “case [was] remanded to Washington County Superior Court for a determination on the merits of the parties' claims and defenses in that action.”

In their answer, filed on December 10, 2008, and in their subsequent motion for summary judgment, filed on February 6, 2009, the Rogerses denied plaintiff's allegation that the lots had merged into one 30,000–square–foot lot. Rather, they asserted that lot Nos. 66, 66–A, and 66–B “constitute three buildable residential lots,” and the zoning certificates properly were issued. The Rogerses asserted as affirmative defenses that plaintiff's claims were barred because the merger provision of Westerly's zoning ordinance was not enacted until after the lots were transferred in 1984 and does not apply retroactively; that plaintiff's claims were barred because the lots met “the minimum dimensional and area requirements of the least restrictive zoning district” and therefore were excepted from the merger provision; ⁵ and that plaintiff's claims were barred because the transfer of lot Nos. 66 and 66–B to the Rogerses as tenants by the entirety was an error as the result of a mutual mistake that was “rectified by filing corrective deeds.” Therefore, they brought a counterclaim against the Society and a third-party complaint against the town for a declaratory judgment dismissing the Society's claims, declaring that lot Nos. 66, 66–A, and 66–B did not merge into one lot, and declaring that the Rogerses may seek and obtain building permits to construct one single-family residence on each of these lots. In an answer to the counterclaim, the Society argued in its defense that the Rogerses had no right to obtain building permits, that the doctrine of mutual mistake was unavailable to the Rogerses against the Society as a third party, and that the corrective deeds were of no avail because they could not alter the grantees nor “the date of transfer.”

The plaintiff moved to deny or continue defendants' motion for summary judgment on March 6, 2009, “because the parties have not yet engaged in discovery sufficient to enable [the Society] to present by affidavit, deposition or interrogatory answers facts essential for * * * opposition to the [m]otion.” The Society requested a continuance under Rule 56(f) of the Superior Court Rules of Civil Procedure to afford plaintiff the opportunity to depose the Rogerses and their attorney, as well as certain town officials “[a]s to the defenses raised by the Rogers[es].” On March 11, 2009, plaintiff sent deposition notices to defendants and their attorney. In response, defendants moved for a protective order canceling the deposition notices.

Before deciding these pending motions, the trial justice first undertook to determine whether the merger provision applied to the lots in question. She stayed the notices of deposition sent by plaintiff to the Rogerses and their attorney. However, plaintiff was permitted to obtain discovery from the town about the applicability of the merger provision.

Accordingly, plaintiff deposed Elizabeth Rasmussen, the town zoning official, and Marilyn Shellman, the town planning official, “regarding factual questions that inform the answer to the question of whether the [m]erger [o]rdinance applies to [lot Nos. 66, 66–A, and 66–B].” Ms. Rasmussen agreed with “the position that the subject property consists of three 10,000 square foot lots regardless of the individual numerations 1 through 12 on them” because they were “protected from the...