CONDOMINIUM CONFLICTS WITH ZONING REGULATIONS – RHODE ISLAND
Declarants of condominiums in Rhode Island may sometimes encounter resistance from the City or Town when attempting to create a condominium based on the misunderstanding of the fact that a condominium is a form of ownership and not a form of use. This article addresses this issue as it applies under the laws of Rhode Island.
The Rhode Island Condominium Act prohibits discrimination by local law against condominiums. “A zoning, subdivision, building code, or other real estate law, ordinance or regulation may not prohibit the condominium form of ownership or impose any requirement upon a condominium which it would not impose upon a physically identical development under a different form of ownership, or otherwise regulate the creation, governance, or existence of the condominium form of ownership” (R.I.G.L. 34-36.1-1.06). Unfortunately, discrimination against the condominium form of ownership has been common in Rhode Island.
There are many different types of properties that have been developed as or converted into condominiums. More typical forms of condominium ownership include residential, office, retail, and industrial units. Other not so typical condo projects include residential, commercial, and industrial land only units; parking lots; boat docs; time-shares; and beach cabanas. Many declarants of condominiums have experienced discrimination against the condominium form of ownership. In the past, some cities and towns within Rhode Island had initially refused to record declarations of condominiums thereby preventing the creation of condominiums. The problem is likely a matter of misunderstanding that a condominium is merely a form of ownership rather than a desire to discriminate. Case history demonstrates that this problem arises more frequently in the less typical condominiums types (e.g. parking lots, improved land unit condominiums and legal non-conforming properties). A number of Rhode Island cases support the premise that discrimination by local municipalities is not uncommon.
The town of South Kingstown tried to prevent the creation of a parking lot condominium. The matter was litigated. In the case of McConnel v. Town of South Kingstown, the court held that a conversion of a parking lot into individual units was not subject to the town of South Kingstown’s regulation as a subdivision (See 543 A.2d 249; 1998 R.I. Lexus 103). In the same matter the Town attempted to prevent the formation of a retail condominium. The court properly held that the conversion of a legally non-conforming multi-unit retail property does not constitute a subdivision of real property nor is it a “use” which can be regulated pursuant to the Town’s zoning ordinances (See 1987 R.I. Super. LEXIS 163).
The Town of Westerly tried to restrict the creation of a beach cabana condominium. The Rhode Island Superior Court held that Westerly zoning board improperly added a condition “that the form of owners of beach cabana condominiums shall be through membership only not through individual ownership as in condo ownership.” The court properly concluded that “to restrict a form of property ownership in the hopes of curing a possible parking problem is clearly an error of law” (See 1991 R.I. Super LEXIS 198).
The town of Coventry attempted to apply its subdivision regulations in the case of Coventry v. Glickman. The court properly held that a legal non-conforming parcel of land which was improved by the federal government with thirty-two single-family houses could be sold individually and were not subject to the Town’s subdivision regulations (See 429 A.2d 440; 1981 R.I. LEXIS 1142).
The town of Westerly attempted to prevent the proper formation of a hotel condominium. In the case of Westerly v. Waldo, the court properly held that a hotel could be converted to a condominium form of ownership. (524 A.2d 117; 1987 R.I. LEXIS 471)
All of the above explained cases describe instances where declarants of condominiums were forced to litigate in order to merely use the statutorily authorized condominium form of ownership. It is the author’s hope that through a discussion of the above cases the use of the condominium form of ownership will become less discriminated against and more easily utilized without the necessity of costly litigation.
The author of this article, Richard E. Palumbo, Jr. is a member of the Rhode Island Bar, the Massachusetts Bar, and the Federal Bar. Richard is a frequent seminar lecturer and speaker regarding various issues relating to Condominium Law. The Law Offices of Richard Palumbo is highly focused firm concentrating on the following related areas of law: real estate law (including condominium law); business law; and estate planning (wills, trusts and probate).