2010-05-20 / Front Page

Waterfront subdivision in 1966 was legal, court rules

By Phil Zahodiakin

Barring an appeal by the town of Jamestown, a parcel of rare waterfront land on the East Passage will soon come to market because of a recent court decision that concluded that the property was subdivided legally.

The half-acre lot, which does not have an address, lies off Walcott Avenue (Assessor’s Plat 9, Lot 733). The lot was created by a 1966 subdivision, which was deemed illegal by the town around the time that the three heirs to the property tried to sell it.

“The town would not agree that the lot was legal under its 1966 regulations, so we had to sue,” local attorney Peter Brockmann, who represented the property owners, told the Press. “Eventually, some of the neighbors got involved and joined the side of the town in opposing us.”

Brockmann filed his suit in March 2005 in Newport Superior Court. On May 7 of this year, Judge Stephen Nugent ruled that the parcel at issue was a legal subdivision under Jamestown’s 1966 zoning regulations.

Brockmann, who said that “the town fought us every step of the way,” pointed out that “the appeal period won’t expire for another three weeks, so it remains to be seen whether the town and/or the neighbors will appeal the decision.”

Without a court ruling that the 1966 subdivision was legal, “the property wouldn’t be worth a heck of a lot because it would have been very difficult to develop it,” Brockmann said.

But now that the court has upheld the legality of the subdivision, “the value of the lot is considerable,” Brockmann added. “It’s a beautiful lot – one of the few waterfront lots left in that part of town. A half-acre with 100 feet of frontage on the Bay could be worth a million dollars or more.”

The lot, which may not be subdivided any further, does not have any frontage on Walcott Avenue – and that was one of the key issues raised by the town.

According to Brockmann, a Jamestown fire department official testified that it would be difficult for emergency vehicles to reach the lot – and that this lack of direct access could put the health and safety of the neighborhood, along with the residents of a dwelling built on the lot, in jeopardy.

That is just one of the reasons, the town contended, that the owner of the property should have sought Planning Commission permission to subdivide the property.

Brockmann explained that, in 1966, the property was owned by Jamestown resident Joseph Smith, who lived in a turn-of-the-century house on the northern half of the land. In the mid-1970s, Smith sold the house and the vacant lot to Charles Reynolds, whose access to the house and adjoining lot was afforded by separate easements established in 1886 – and “no one disputes that the easements exist,” he said.

Nevertheless, the town maintained that the 1966 division of the property was a subdivision under the regulations in place at the time.

Brockmann argued that the divided land didn’t constitute a subdivision because the Rhode Island Supreme Court has previously held that a land division isn’t technically a subdivision unless it requires a new street.

“Our argument,” Brockmann said, “was that we didn’t need a new street because there was access to the lot by way of a legal easement – and that we didn’t need a street because we essentially had a private road [to the lot].”

Brockman also argued that, under the very broad definition of “street” in 1966, “the easement qualified as a street, even though it wasn’t improved – and the court agreed.”

When asked why the town issued plat and lot numbers to a vacant lot whose creation wasn’t sanctioned by the Planning Commission, Brockmann said, “It’s not that uncommon. Just because the town accepts a deed and gives [the associated land] a plat and lot number does not necessarily make it a legal lot, which has been a consistent opinion from Rhode Island courts.”

Now that a court has ruled that the lot was established by a legal subdivision, “it should clear the way for someone to build a home on the lot, which will ultimately be given a Walcott Avenue address,” Brockmann said. “My clients have been paying taxes on the lot as if it were a legal, buildable lot, although the town recently agreed to abate the taxes somewhat. But now someone can build a house on the lot and it will generate even greater taxes for the town.”

Nugent did not file his decision – which he read aloud from the bench – with the Newport Superior Court. Brockmann said the court will issue a transcript of Nugent’s statement, which was not available as of presstime.

Town Solicitor Peter Ruggiero, who represented Jamestown in the most recent phase of the litigation, declined to comment on the decision or to say if the town would file an appeal.

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