A waist-high granite post erected by the Coastal Resource Management Council in 1991, denotes that portion of Clipper Way as a public right-of-way. Richard Silver constructed a stone wall around the road.
The letter, presented to Town Council members last Wednesday by William A. Dorry of Shapiro, Dorry, Masterson, claims that actions by the Town of Bristol “violated the Silvers’ constitutional rights to procedural due process and substantive process.”
Since July 2008, Richard and Jane Silver and the Town of Bristol have been caught up in a legal battle over whether a portion of Clipper Way is a public right-of-way. The strip of land passes by the front of the Silvers home at 56 Clipper Way, and leads straight to the water.
“It’s the town’s position that it’s a public right-of-way,” said Andy Teitz, the town’s legal counsel. “All we’re seeking to do is put about a 4-foot wide path and clear the growth and underbrush. It was a pass people used to use to go down to the water.”
The Silvers bought their 2,300 square-foot, four-bedroom home in 1996 for $350,000. The property is located in Hopeworth Estates, a subdivision which plats were mapped out and recorded with the Town of Bristol in 1952. In that plat map, it showed the street going all the way to the water, Mr. Teitz said. The Rhode Island Coastal Resource Management Council designated that area of Clipper Way as a public access in 1991, which resulted in the CRMC’s right to improve the area.
“The Silvers are claiming that based on an 1886 deed, that the subdivision and (the use of Clipper Way) since then, is moot,” Mr. Teitz said.
Shortly after filing a grievance with the court, the Silvers discovered that the property was never dedicated as public right of way by the property owner, as required by law.
“They are stating that Wardwell, who owned the land, had a right to half the road and not the whole road,” Mr. Teitz explained of the 1886 deed. “So when Rego took ownership, he essentially didn’t have the right to donate the whole road.”
Because of that defect, “the Town of Bristol’s subdivision process, as related to Clipper Way and the subsequent CRMC administrative proceeding were fatally flawed,” Mr. Dorry states in the letter.
Mr. Dorry further argues that when the CRMC sought to declare the road as a public right-of-way, proper notice of the hearing was not given to the abutters — those who owned 56 Clipper Way before the Silvers, and the owners of 1 Viking Drive, Gary and Joyce Lincoln. Ms. Lincoln still resides in the home. They are also listed as plaintiffs in the case.
That argument is hardly valid, explained Mr. Teitz. According to transcripts from the hearing, Mr. Lincoln did attend and even spoke.
“If you show up to a hearing, you waive any right of complaint about not getting a notice,” said Mr. Teitz.
In his letter, Mr. Dorry alleges that the Town of Bristol conspired with the CRMC to “take certain actions in violation of the substantive and procedural due process rights of the Silvers,” and applied “different standards to the Silvers and the property,” as opposed to other homeowners in town.
“The letter, I think, is crystal clear,” said Richard Silver. “The bottom line is, if we did not have a case, it would not have gone on for five years. That’s all I can really say.”
Should the Silvers be successful, that would mean that their home would be in violation of a zoning ordinance regarding property frontage, Mr. Teitz said.
The Town of Bristol has also offered several settlement options, including the Silvers’ and the Lincolns’ right to use the property at their discretion. Should they die or sell the home, however, the property would again be declared a public right-of-way.
“This is nothing more than a land-grab,” he said. “(The Town of Bristol) is just seeking to establish that we can put this path through. It’s absolutely outrageous that (the Silvers) claim to seek financial damages from us, when they’re the ones who sued the town in the first place.”
Councillors voted to filed the presentment letter with the town’s insurance company, until a court decision can determine who the legal owner is.