Wright v. Town of New Shoreham Zoning Board of Review, C.A. No. WC 2009-0011 (R.I. Super 8/6/2009)
| Decision Date | 06 August 2009 |
| Docket Number | C.A. No. WC 2009-0011. |
| Parties | LORNA WRIGHT, Executrix of the Estate of Dorothy Hutchinson, and DONNA STEPHEN v. TOWN OF NEW SHOREHAM ZONING BOARD OF REVIEW |
| Court | Rhode Island Superior Court |
Appellants Lorna Wright, Executrix of the Estate of Dorothy Hutchinson, and Donna Stephen bring this appeal from a decision of the Town of New Shoreham Zoning Board of Review ("the Board"). The challenged decision upheld a Notice of Violation issued to Appellants on the ground that the transfer of certain real property constituted an illegal subdivision. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.
In January 2008, the Estate of Dorothy Hutchinson held title to certain real property, identified as Lot 11 on Town of New Shoreham Tax Assessor's Plat 37, but also identified by deed as "three adjoining lots or parcels of land" (hereinafter "the Property").1 In order to distribute the Property among those who stood to inherit from Dorothy Hutchinson, Appellants submitted an application to the Town Planning Board seeking to subdivide the Property into three parcels. On January 14, 2008, Appellants withdrew their application.
On January 16, 2008, the Estate of Dorothy Hutchinson purported to transfer title to two of the three lots2 that allegedly comprise the Property. Lot 1, a 4.22 acre parcel with approximately 400 feet of frontage on Center Road, was conveyed to Lorna Wright and Donna Stephen as tenants in common. Lot 2, a 4.59 acre parcel with some frontage on Cooneymus Road3 and access by private roadway, was conveyed to Brian Wright. Lot 3, a 1.09 acre parcel with approximately 600 feet of frontage on Center Road and Cooneymus Road, remained in the Estate of Dorothy Hutchinson. These lots were set off from one another by a series of non-continuous stone walls.
On February 13, 2008, Marc Tillson, the Building Official of the Town of New Shoreham, issued a Notice of Violation to Appellants on the ground that the transfer of Lots 1 and 2 constituted an illegal subdivision of the Property. Appellants appealed the Notice of Violation to the Board.
On April 28, 2008 and July 28, 2008, the Board held hearings regarding the propriety of the Notice of Violation. At these hearings, a variety of witnesses testified.
The Building Official testified that he had not researched the title to the Property but had instead relied on the Tax Assessor's designation of the Property as a single lot in issuing the Notice of Violation. (Apr. 28, 2008 Tr. at 5-9.)
Attorney Elliot Taubman testified that he had been a real estate attorney working exclusively in New Shoreham since 1973. (Apr. 28, 2008 Tr. at 15-16.) Attorney Taubman testified that he had conducted a title review on the Property. Id. at 17-18. He testified that the first recorded deed to the Property was from 1958 and that this deed purported to convey a "certain tract of land consisting of three adjoining lots or parcels of land lying West of the New State Highway . . . ." Id. at 17-19, Ex. E. He testified that the second recorded deed to the Property was from 1982 and that this deed contained an identical description. Id. at 20-22, Ex. F. He testified that, although the "three adjoining lots" were not separately described by metes and bounds, these lots could be determined by reference to stone walls on the Property. Id. at 20-28. He testified that not only did local customs and usages inform a finding that these stone walls bounded the three distinct lots, but also the 1967 Zoning Ordinance of the Town of New Shoreham ("the 1967 Ordinance") provided at Article VI, § 2 that "[a]ll lots, tracts and parcels of land which prior to the adoption of this ordinance have been enclosed within stone walls or fences shall be considered a duly lot of record as if they were recorded in the office of the Town Clerk of the Town of New Shoreham." Id. (emphasis in 1967 Ordinance). Attorney Taubman concluded his testimony with the opinion that both custom and the 1967 Ordinance dictate that the Property is comprised of three distinct lots of record. Id. at 36.
Stephen Pinch testified that he had been a registered land surveyor in Rhode Island since 1995. (Jul. 28, 2008 Tr. at 26.) Mr. Pinch testified that he was familiar with using stone walls to conduct surveying work. Id. at 28. He testified that he had prepared a plan showing the stone walls that define the three lots. Id. at 27, Ex. J. He testified that, although the stone walls on the Property contained some breaks, most if not all stone walls contain some breaks. Id. at 28. He testified that he is able to determine bounds by reference to non-continuous stone walls, and that he did so in order to determine the bounds of the lots that comprise the Property. Id. He testified that he had reviewed maps from the United States Geodetic Survey and New Shoreham Town Hall. Id. at 30. He testified that these maps both showed the stone walls as continuous and demonstrated that the walls were fifty to one hundred years old. Id.
No other testimony forms the basis for either the Board's Decision or this appeal.
On December 29, 2008, the Board issued a decision rejecting the appeal and upholding the Notice of Violation ("the Decision"). The Decision rested on twenty-seven findings of fact, presented here in their entirety (all punctuation and capitalization reflect the original):
1. The Notice of Violation addresses the recording of two deeds on the Land Evidence Records of the Town of New Shoreham on January 16, 2008 which divided, and changed the ownership, of Tax Assessors Play 16 Lot 11 into three separate Lots, all of which were originally included within the area encompassed by Lot 11. (Building Official's Exhibit 1 and Appellants' Exhibit G and Exhibit H)
2. The thrust of the Notice of Violation is that the creation of three Lots by the owners, from one, was an illegal subdivision in violation of state law (Rhode Island General Laws Title 45 chapter 23) and the Town's Land Development and Subdivision Regulations and Zoning Ordinance, which requires Planning Board approval of any subdivision of property and that any subdivision comply with the Zoning Ordinance.
3. The Hutchinson family acquired the subject property by a single deed, from George A. Hull and his wife Mary J. Hull to Henry G. Hutchinson, dated May 31, 1958 (Exhibit E).
4. The subject property was later conveyed by Henry G. Hutchinson to himself and to his wife, Dorothy Hutchinson, by deed, dated December 15, 1982. (Exhibit F) This deed contains the same description as the 1958 deed from Hull to Hutchinson.
5. There are no descriptions, on record in the land evidence records for the Town of New Shoreham pertaining to the subject property, prior to 1958.
6. At the time of the 1958 conveyance of the subject property to Henry Hutchinson, the Town of New Shoreham did not have a Zoning Ordinance.
7. On June 5th 1967 the Town of New Shoreham enacted its first zoning ordinance.
8. The 1967 zoning ordinance zoned Lot 11 as in the Residential Zone A.
9. The 1967 Zoning Ordinance required that all lots in the Residential A Zone have a minimum Lot Size of 80,000 sq feet of land and a Minimum Street Frontage of 200 feet.
10. Section 2 of Article IV of the 1967 Zoning Ordinance states that "All lots, tracts, and parcels of land which prior to the adoption of this ordinance have been enclosed within stone walls or fences shall be considered a duly lot of record as if they were recorded in the office of the Town Clerk of the Town of New Shoreham."
11. The Appellants' are relying upon this portion of Section 2 of Article IV of the 1967 Zoning Ordinance to support their appeal.
12. Section 2 of Article IV of the 1967 Zoning Ordinance also contained a merger provision for abutting substandard lots held in same ownership.
13. Article IV, Section 2, was repealed by the Town of New Shoreham on May 1, 1972, prior to the 1982 deed of conveyance from Henry Hutchinson to Dorothy Hutchinson, and himself.
14. The Appellants presented the testimony of Attorney Taubman to support their appeal. I do not find his testimony to be credible. To accept his testimony you have to accept a concept that lots exist because people think they exist. For example, if you put a fence around your garden to keep the deer out, and called it your garden lot, it became a legal building lot.
15. The appellants presented no evidence that the owners of Lot 11 had taken any action in reliance upon the newly enacted 1967 Zoning Ordinance, between the time it was enacted and the time Section 2 was repealed.
16. It is of note, although the Appellants argue that it is not legally binding, that no evidence was presented to show that, at any time was the property ever identified upon the Tax Assessor's maps, or records, as anything more than one lot. The owners of the property have never paid taxes on more than one lot.
17. Mr. Pinch, the Appellants' land surveyor testified that he found no evidence that three lots were actually enclosed within stone walls or fences as of June 5, 1967, or any time subsequent thereto. Indeed, Mr. Pinch references the stone walls on his survey as only "existing stonewalls as possible boundaries" (Exhibit J).
18. On the subdivision plan, submitted as Appellants Exhibit J, the interior stone walls do not meet and do not enclose any entire area of proposed Lots 1, 2 or 3.
19. Neither Lot 1 or lot 2 have now, or at any time have had, street frontage of 200 feet.
20. Section 102 of the Zoning Ordinance, in effect as of January 16, 2008, defines a lot as "[a] parcel of land whose boundaries have been established by some legal instrument such as a recorded deed or recorded map and which is recognized as a separate legal entity for purposes of transfer of title.
21. The Appellant, Lorna M Wright, Executrix, filed an application in December of 2006 for a three Lot subdivision for Plat 16, Lot 11 (Building Official Exhibit...
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