“I’m not tearing it down. No way,” said William McLaughlin, who built the shed some years ago, lives next door, and has been fighting with the town about if for about seven years.
“I’m going to file bankruptcy, and the town can only tear down the portion that’s in violation.”
The shed has been the subject of a zoning dispute for almost seven years. On Friday, May 9, Newport County Superior Court Bennett R. Gallo, issued the tear-down-or-remove-it order, that gave Mr. McLaughlin 90 days to do the job.
The clock started ticking May 10, and runs out on Thursday, August 7. The tear-down court order was one-page long, and was announced June 30 to the town council by Town Solicitor Andrew Teitz.
The order leaves little wiggle room for Mr. McLaughlin. In the words of the judge, Mr. McLaughlin must “either move or remove the structure” within 90 days, or “be adjudged in contempt and subject to a fine of $200.00 per day for each day thereafter that the structure remains out of compliance.”
Mr. McLaughlin already got something of a reprieve on the timing. The May 9 court order was based on an earlier order dated April 7 to the same effect, the judge said, but due to come confusion about hearing dates, the effective date was changed to require a tear-down or move in August. When the earlier court order of April 7 was entered, Mr. Teitz told the council back then, his law firm had requested fines of $500 per day, but the judge imposed the $200 figure.The town will have to act if Mr. McLaughlin fails to tear the shed down.
“The town only has one option, and that’s to go back to court,” Mr. Teitz has said. He said the town could ask the court to collect the fines, or to start contempt-of-court proceedings. Or down the road — if fines are imposed and they remain unpaid and liens are imposed — to seek a sale of the property to satisfy the liens.
That’s a lot of ‘ifs’.”
“I don’t see the town coming in to knock the building down,” Mr. Teitz said.
The origins of the dispute
Judge Gallo’s tear-down order came after Mr. McLaughlin appealed a decision by Tiverton’s Zoning Board of Review (ZBR) to the court. The ZBR had denied Mr. McLaughlin’s request for a variance. Mr. McLaughlin had asked the ZBR for a variance after a mistake had been made in building the shed too close to a neighbor’s property.
That’s the nub of the dispute, and it began some years ago. Mr. McLaughlin initially constructed the building based on his understanding of a survey of his property. He was given a building permit, and later a certificate of occupancy, by the town building inspector.
But the problem was that backfill from his building, but not the structure itself, encroached on a neighbor’s property. The ensuing wrangle lead to two more surveys, one commissioned by the town. But the building had been completed by the time the multiple surveys led to a conclusion that the interpretation of the original survey had been in error.
Mr. McLaughlin concedes his building is too close to the property line of his neighbor to the south. There’s a 30-foot setback required, he says, and his building is 14 feet too close to the neighbor’s property at the front corner of the building. What this all boils down to, by Mr. McLaughlin’s reckoning, is that there’s about 22 feet at the front corner of the building closest to the neighbor that’s in violation.
Mr. McLaughlin claims neither the town, nor the Department of Environmental Management (DEM), both of whom weighed in on wetlands and drainage issues, contested the location of the structure or the survey upon which the location was founded. Mr. McLaughlin says the town is prevented from objecting now about the location, since it didn’t complain before the building was constructed. He says the town is “estopped” from objecting now to what it didn’t object to before.
“If the town had knowledge there was something going on here, they should have taken action to stop me, but they didn’t prior to completion of the building, and that’s estoppel,” he said.“The building is all on my property,” he said, “just a little too close to the property lines by an honest mistake. The town issued me a building permit, gave me an occupancy permit and took my money for all the permits, and then taxed me on the building. They are bound to that fact that they gave me no reasons to think there was a problem prior to late 2008 [by which time the building had already been built.] It was a straightforward, honest mistake. ”
The request for a variance
Finding himself with a shed already up and built, Mr. McLaughlin then sought a variance from the Zoning Board of Review (ZBR), which denied his request. The reasons were, it said, that the building was on less than the required setback, that the building is a commercial structure located in a residential area, and that it was Mr. McLaughlin’s own error in building where he did.
Mr. McLaughlin appealed to the court, and the case worked its way through the court system, where for various reasons, Mr. McLaughlin lost again, but appealed. He has had difficulty getting a lawyer to represent him, he says. Mr. McLaughlin says the town zoning bored of review and the court proceedings have not been fair to him.
“If I’d have gotten a fair hearing, I would have took the decision, even if it was the same outcome that came now. But it wasn’t a fair hearing,” he said.