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Supreme Court No. 2010-261-Appeal. (NC 05-125)

Edward P. Reynolds et al. v. Town of Jamestown et al.

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Holly Swett, Intervenor.

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NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222-3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.

Supreme Court No. 2010-261-Appeal. (NC 05-125)

Edward P. Reynolds et al. v. Town of Jamestown et al.

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Holly Swett, Intervenor.

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Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. OPINION Justice Goldberg, for the Court. This case came before the Supreme Court on May 2, 2012, after a justice of the Superior Court granted a declaratory judgment in favor of the plaintiffs, Edward P. Reynolds (Reynolds), Nancy E.R. Wharton (Wharton), and Ellen C. Reynolds (Ellen Reynolds) (collectively, plaintiffs). The defendants, Louise Sellon (Sellon), Lisa Barsumian (Barsumian), and Thomas Farrell (Farrell), and the intervenor, Holly Swett (Swett) (collectively, defendants), appealed the trial justices determination that the 1966 property division that created the disputed lot in this case was proper.1 On appeal, the defendants contend that the lot resulting from the property division constituted an illegal subdivision because it lacked adequate street access. After careful consideration of the parties arguments, we affirm the judgment of the Superior Court.

1

We note that the Town of Jamestown (town) originally was a defendant in the case, but did not file an appeal; however, the town did file a counter-statement of the case pursuant to Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure. -1-

Facts and Travel Lot 733 (Lot 733, the Lot, or subject lot) on Assessors Plat 9 is situated on Narragansett Bay in Jamestown and is owned by plaintiffs.2 The property was once part of a larger parcel, referred to as "Old Lot 297." By deed dated May 31, 1966, Old Lot 297 was divided into Lot 733 and the current Lot 297, owned by defendants Farrell and Barsumian.3 Lot 733 is bordered on the east by the bay, on the north by Lot 297, on the south by Lot 300, which is owned by intervenor Swett, and on the west by Lot 299, which is owned by defendant Sellon. Lot 733 is an undeveloped parcel that is situated between the bay and Lot 299, which lot fronts on Walcott Avenue, a public road. The subject lot has no frontage on any road; however, there are two preexisting and contiguous rights-of-way of different widths that provide Lot 733 with access to Walcott Avenue. The first right-of-way is approximately twenty feet wide and 263 feet long and runs along the border between Lots 299 and 300. It begins at Walcott Avenue and leads to the second right-of-way, which is approximately twelve feet wide and sixty-six feet long and connects the first right-of-way to Lot 733. When Lot 733 was conveyed to plaintiffs, the grant included the right to access Walcott Avenue by these rights-of-way; and, when Lots 299 and 300 were transferred to their present owners--defendant, Sellon, and the intervenor, Swett--the conveyances were made subject to plaintiffs right to use the rights-of-way. Significantly, both rights-of-way existed in 1966 when Lot 733 was created, and they largely were, and remain, unimproved. Notably, in creating Lot 733, no additional new access was necessary.

2

Reynolds father purchased Lot 733 in 1976 and both Reynolds name and his fathers name were on the deed until 2000, when Reynolds father passed away. Thereafter, Reynolds owned the property with his two sisters, Wharton and Ellen Reynolds.
3

Appended to the Courts opinion is a graphical depiction of the area before and after the land division. -2-

In 1990, Reynolds first began exploring the possibility of building on Lot 733. In 2003, the zoning enforcement officer for the town, Frederick Brown (Brown), advised that building on Lot 733 would require seeking relief from frontage requirements.4 The plaintiffs requested that Brown issue a zoning certificate, but he declined to do so. Browns refusal was based on his belief that Lot 733 resulted from an illegal subdivision in contravention of the town zoning and subdivision regulations in force in 1966.5 On July 19, 2004, Brown wrote to plaintiffs explaining that when Lot 733 was created, the town subdivision regulations required that a subdivision of land must provide for a street. Brown concluded that the 1966 subdivision did not conform to the subdivision regulation because the resulting lot "was created without street frontage when the same was required." The plaintiffs appealed Browns decision to the zoning board, but the board dismissed their appeal. On March 18, 2005, plaintiffs filed suit in the Superior Court requesting that the zoning boards decision be overturned and that the court declare that Lot 733 was a lawful lot, created in accordance with the regulations in effect in May 1966. The plaintiffs contended that the creation of Lot 733 did not constitute a subdivision as defined in the regulation because "no street was necessary when the lot was divided because the two rights-of-way were already laid out, and legal, valid enforceable means of access to the lot existed as of its division in [19]66." The defendants responded that provision for a street should have been made in 1966 when the Lot was created because the contiguous rights-of-way--amounting to an unimproved private
4

Frontage is defined as that portion of land that abuts a street or highway or lies between a buildings front and a street or highway. Blacks Law Dictionary 739 (9th ed. 2009).
5

Jamestown regulations in effect in 1966 defined subdivision as: "the division of a lot, tract or parcel of land into two or more lots, sites or other divisions of land in such a manner as to require provision for a street, for the purpose, whether immediate or future, of sale or of building development." The Jamestown subdivision regulation mirrored the state regulations encapsulated in P.L. 1945, ch. 1631,

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