Opinion
C. A. PC-2023-06561
08-09-2024
LANCE SHEFFIELD AND HOLLY SLATER SHEFFIELD Appellants, v. COASTAL RESOURCES MANAGEMENT COUNCIL Appellee.
For Plaintiffs: Daniel J. Procaccini, Esq. For Defendant: Anthony DeSisto, Esq.
Providence County Superior Court
For Plaintiffs: Daniel J. Procaccini, Esq.
For Defendant: Anthony DeSisto, Esq.
DECISION
K. RODGERS, J.
Lance Sheffield and Holly Slater Sheffield (the Sheffields or Appellants) are before this Court on an appeal from a December 19, 2023 written decision (the Decision) of the Coastal Resources Management Council (CRMC or the Council). In that Decision, CRMC determined that a certain assent, issued by the Council in 1982 but unrecorded, is binding against the Appellants prospectively, notwithstanding the Appellants' lack of actual or constructive notice of the same at the time they purchased waterfront property in Barrington in 2021.
Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth herein, this Court finds that the assent is wholly unenforceable against the Appellants.
I Facts and Travel
A The Subject Property
Since 2021, the Sheffields have owned the real estate located at 85 Nayatt Road in Barrington (the Property). The Property is currently comprised of Plat 5, Lot 28 (the "original" 85 Nayatt Road) and a portion of Plat 5, Lot 70 (also known as 56 Elm Lane).
The property located at 56 Elm Lane was purchased in November 1969 by Robert and Mary Kilmarx (collectively, the Kilmarxes). At that time, the southern boundary of 56 Elm Lane abutted Narragansett Bay and extended from Elm Lane to the west to Lot 109 to the east. In August, 2014, David I. Goulden, Trustee of the David I. Goulden 2011 Revocable Trust (Goulden), purchased the "original" 85 Nayatt Road, which then abutted the northern boundary of 56 Elm Lane and also ran from Elm Lane to the west to Lot 109 to the east.
In March 2017, Robert Kilmarx conveyed 56 Elm Lane to Goulden. Shortly after Goulden came into possession of the two abutting properties, he applied for and was granted approval by the Barrington Planning Board to subdivide the two properties. As a result of this subdivision, the easternmost half of Lot 70 was merged into Lot 28, thereby extending the eastern boundary of Lot 28 to Narragansett Bay and making the Lot 28 waterfront property. Lot 70 remained as waterfront property, but with roughly half the frontage on Narragansett Bay than it had prior to the subdivision.
This is a mere approximation. The amount of land conveyed by way of the subdivision is not pertinent to the issues herein, but rather it is the waterfront location of that land that is central to the issues raised by the parties.
By warranty deed dated May 5, 2021, Goulden conveyed the newly formed Lot 28 to the Sheffields.
B CRMC Approvals
The issues that are presented in this case arise from the efforts of the Sheffields' predecessors in interest, namely, the Kilmarxes, to improve Lot 70 at the time it ran along Narragansett Bay from Elm Lane to Lot 109.
On December 3, 1981, the Kilmarxes applied to CRMC for an assent to repair the existing seawall on Lot 70. In 1982, CRMC granted Assent No. 81-12-3 (the Assent), which authorized the Kilmarxes to "repair and protect 285' of existing concrete seawall which is critically undermined, cracked and eroded, by shoring up undermined sections of wall with stone, filling eroded lawn area inland of the wall and protecting the seaward side of the wall against continuing wave action damage by a sloping riprap . . . ." CRMC Assent, File No. 1981-12-003, at 1. The Assent was granted subject to several stipulations intended to ensure that the public would be permitted to have access to the top of the seawall and the riprap at its base. See generally id. at 2. For instance, a sign or plaque was required to be "placed at each end of the proposed riprap, to be clearly visible to the public, indicating that passage atop the riprap shall not be denied the public, per order of CRMC." Id. at 2, ¶ H. Additionally, the riprap was required to "be constructed so that it will be readily passable by pedestrian traffic along the shore. Stone at ends of the wall may have to be arranged in a step fashion to accomplish this." Id. at 2, ¶ I. It is undisputed that the Assent was never recorded in the Barrington land evidence records. See Hr'g Tr. 89:23-90:4, 106:4-13, Dec. 12, 2023 (Tr.).
The date of the original construction of the seawall along Lot 70 is unknown.
The Certified Record includes the exhibits cited herein, although said exhibits are not numbered but rather identified by name in separate folders. The memoranda submitted by both the Appellants and CRMC also attach the pertinent exhibits. For ease of reference, this Court will simply refer to title of the pertinent documents and pertinent page and/or paragraph and not to the various exhibit designations or the folder designations in the Certified Record.
In 2011, Robert Kilmarx petitioned CRMC again concerning Lot 70, this time seeking permission to "repair damaged sections to previous condition of safe public access." CRMC Maintenance Certification Request, File No. 2011-03-001, at 1. In describing the current condition of the seawall, Kilmarx stated as follows:
"430' concrete sea wall along southern shore of my lot 5 [sic], abutting south end of Elm Lane public right of way to the bay. Flat level top surface of wall much used safely throughout the year by public for bay viewing, fishing, clamming, access to water, exercise, jogging and dog walking. (Att. Evidence) Stormwaters have dislodged and damaged sections of the wall causing uneven surfaces and creating hazardous public use conditions." Id.
The CRMC issued a Certificate of Maintenance on March 2, 2011 (the 2011 Maintenance Certificate), allowing Kilmarx to "[r]eplace loose concrete on existing seawall." CRMC Certificate of Maintenance/CRMC Assent No. M2011-03-001, at 1. Like the Assent, this 2011 Maintenance Certificate also was not recorded in the Barrington land evidence records.
In 2017, after Goulden acquired Lot 70 from Robert Kilmarx, he sought to demolish the single-family house on the property. See CRMC Maintenance Certification Request, File No. 2017-06-096, at 1. On August 24, 2017, the CRMC issued a Maintenance Certification (the 2017 Maintenance Certification) authorizing the demolition of the existing home on Lot 70. See CRMC Certificate of Maintenance/CRMC Assent No. M2017-06-096, at 1. The 2017 Maintenance Certification was recorded on November 27, 2017, at Book 1559, Page 149 of the Barrington Land Evidence Records. See id.
C The Sheffields' Ownership of the Subject Property
The Sheffields contend-and the CRMC agreed-that despite performing their due diligence, they had neither actual nor constructive notice of the Assent when they purchased the Property in May, 2021. Compl. ¶ 21; see also CRMC Decision, Dec. 19, 2023, at 6, ¶ 2 and 7, ¶ 5. Neither a title search of the land evidence records nor the warranty deed conveyed by Goulden to the Sheffields revealed any evidence of the Assent or a public right of access across the Sheffields' portion of the seawall. See Lance Sheffield Aff. ¶¶ 5-6; Holly Slater Sheffield Aff. ¶¶ 5-6. Neither Goulden nor his agents disclosed the existence of the Assent or any alleged right of public access to the seawall. See Lance Sheffield Aff. ¶ 7; Holly Slater Sheffield Aff. ¶ 7. Additionally, Appellants commissioned a land survey of the Property to be performed by a professional engineer; that land survey merely showed that the seawall was a part of Appellants' Property but did not indicate that there was any right of access by the public. See Lance Sheffield Aff. ¶ 8; Holly Slater Sheffield Aff. ¶ 8. Finally, there were no placards or signage along the seawall or the riprap which suggested in any way the existence of any CRMC assent or a right of public access. See Lance Sheffield Aff. ¶ 9; Holly Slater Sheffield Aff. ¶ 9.
After purchasing the Property, the Sheffields noticed members of the public accessing the seawall to fish and walk along the water. Before taking any action in response, Lance Sheffield contacted both CRMC and the Barrington Tax Assessor's Office to inquire about the ownership of the seawall on the southern edge of the Property. See Lance Sheffield Aff. ¶ 10. Representatives from both agencies advised Mr. Sheffield that the seawall was part of the Sheffields' private property. Id. Thereafter, Appellants put up a wire fence and posted no trespassing signs along their section of the seawall. On September 23, 2021, CRMC issued a cease-and-desist order alleging that the fencing and signs were improper and did not conform with the Assent. CRMC Cease & Desist Order, File No. 21-0214 (First Cease & Desist Order). The fencing and signs were removed shortly thereafter and the First Cease & Desist Order was withdrawn. See CRMC Decision, Dec. 19, 2023, at 4, ¶ 9.
On May 27, 2022, in response to a complaint that the Sheffields installed a pole with a camera and a siren and engaged a security guard to prevent lateral public access to the shore, CRMC issued a second cease-and-desist order alleging that the public access along the top of the riprap retaining wall was being restricted and that the riprap was improperly constructed in that it lacked the two foot wide access path along the top of the riprap, both being in violation of the Assent. See CRMC Cease & Desist Order, File No. 22-0094 (Second Cease & Desist Order).
D Petitions to the CRMC
On December 12, 2023, the Sheffields petitioned CRMC for a declaration that the Assent was unenforceable, and that the two cease and desist orders should be vacated (the Petition). The Sheffields' basis for their Petition was that the Assent was unrecorded when they purchased the Property, and therefore, unenforceable against them.
CRMC failed to review the Petition within sixty days of its filing as mandated by § 42-35-8(c). As a result, the Sheffields filed a Complaint in Superior Court on March 10, 2023 seeking declaratory judgment. See Lance Sheffield, et al. v. Coastal Resources Management Council, No. PC-2023-01199, Nov. 29, 2023. On November 29, 2023, another justice of this court issued a decision declining to address the merits of the Petition but holding that CRMC had erred by failing to adhere to the procedures set forth by statute. Accordingly, the court remanded the matter to the agency for review within twenty days.
CRMC considered the Petition during its meeting on December 12, 2023. During that meeting, CRMC considered arguments from both the Sheffields' attorney and legal counsel for CRMC and heard testimony from Holly Slater Sheffield.
After considering the evidence presented at the meeting, the Council issued the following conclusions of law which are pertinent to this appeal:
"2. The Council hereby finds that the credible evidence demonstrates that the Petitioners did not have actual or constructive notice of [the Assent].
" . . .
"4. The Council finds that, based on notions of fundamental fairness and due process, Petitioners should not be bound by [the Second Cease and Desist Order]. The Council further finds that, based on the briefs filed in Superior Court, [the Assent] is binding on the [Sheffields].
"5. The record reflects that the Petitioners have met evidentiary burdens of proof in demonstrating that they did not have actual or constructive notice of [the Assent]. The record further reflects that CRMC staff has met the evidentiary burdens of proof in demonstrating that [the Assent] remains in full force and effect." Decision, at 6-7.
CRMC's Decision variously identifies the Assent as CRMC Assent 1981-12-003 and CRMC Assent 1981-12-033. See Decision, Dec. 19, 2023, at 1-4; cf. id. at 6-7. There is no question that the proper reference to the Assent is CRMC Assent 1981-12-003.
In reaching these legal conclusions, the Council passed a motion, on a 5-2 vote, which was explained by Council Member Stephen Izzi as follows:
"[F]irst, based on notions of fundamental fairness and due process and the fact that the Sheffields were not aware of the restrictions and requirements of the 1982 assent before they were cited, we dismiss the cease and desist orders . . . to the extent they're still open. . . .
"As the second part of [the] motion, just so that there's no question as to where the Council stands with respect to the assent, that we ratify and confirm that the 1982 assent remains in full force and effect from this time forward ..... I think it's still valid, but I don't think the Council, at this time, should enforce those provisions
of which the Sheffields were unaware when they were cited. Now that they have actual knowledge of the assent, everyone goes forward with the same understanding and will live with the assent." Tr. 151:6-152:7; see also Decision, at 7.
The Sheffields subsequently appealed CRMC's Decision to Superior Court on December 21, 2023.
II Standard of Review
Final rulings and certain interlocutory orders issued by State agencies, such as CRMC, are subject to judicial review by the Superior Court pursuant to G.L. 1956 chapter 35 of Title 42 (the Administrative Procedures Act (APA)). Section 42-35-15(g) provides, in pertinent part:
"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
While a reviewing court must defer to the factual findings of the administrative agency, questions of law are reviewed de novo. Heritage Healthcare Services, Inc. v. Marques, 14 A.3d 932, 936 (R.I. 2011) (quoting Iselin v. Retirement Board of the Employees' Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008)).
III Analysis
It is uncontested that the Sheffields lacked both actual and constructive notice of the Assent. See Compl. ¶ 21; CRMC Decision, Dec. 19, 2023, at 6, ¶ 2 and 7, ¶ 5. The issue before this Court is what legal effect that Assent has on the Sheffields and their Property.
The Appellants contend that the Assent cannot be enforced against them as they are bona fide purchasers of the Property in the first instance, and that the Assent is void as against them because it was never recorded. The Council maintains that the Assent, issued by a government entity, did not need to be recorded in 1982 in order to be enforceable. Alternatively, the Council argues that because the Sheffields have benefitted from the Assent, the Assent does not adversely impact their title to the Property and, therefore, does not need to be recorded. Further, the Council characterizes the Assent as a conservation restriction and contends that it is enforceable notwithstanding that it is unrecorded.
A The Assent Is Unenforceable Against Bona Fide Purchasers
There can be no doubt that the Sheffields are bona fide purchasers of the Property, having purchased the Property for good and valuable consideration, in good faith, and without any knowledge of the adverse claims to the Property as created by the Assent. See Fleckhamer v. Fleckhamer, 50 R.I. 363, 366-67, 147 A. 886, 888 (1929). "Rhode Island has long recognized the defense of bona fide purchaser for value and the protections to which such a purchaser is entitled." Shappy v. Downcity Capital Partners, Ltd., 973 A.2d 40, 44 (R.I. 2009) (citing Coombs v. Aborn, 29 R.I. 40, 68 A. 817 (1908); Babcock v. Wells, 25 R.I. 23, 54 A. 596, 598 (1903); Arnold v. Carpenter, 16 R.I. 560, 18 A. 174 (1889)). "'The theory behind the rule is to protect innocent purchasers and to allow them to obtain and convey unsullied interests.'" Id. (quoting Sun Valley Land and Minerals, Inc. v. Burt, 853 P.2d 607, 611 (Idaho Ct. App. 1993)).
It is also widely held that "purchasers of real property 'have a right to rely on recorded public records.'" Id. (quoting 27 Williston on Contracts, § 70:47 at 343 (Richard A. Lord, 4th ed. 2003)). "[T]he purpose of recording statutes [is to give] 'notice to prospective purchasers or mortgagees of land of all existing and outstanding estates, titles or interest, whether valid or invalid, that may affect their rights as bona fide purchasers.'" Id. (quoting Domarad v. Fisher & Burke, Inc., 76 Cal.Rptr. 529, 536 (Cal.Ct.App. 1969)). Put another way, the "public records doctrine is essentially a negative doctrine declaring that what is not recorded is not effective except between the parties, and a third party in purchasing, or otherwise dealing with, [real] property is entitled to rely on the absence from the public records of any unrecorded interest in the property." 77 Am. Jur. 2d Vendor and Purchaser § 386 (2d ed. Aug. 2024 Update).
The Assent, as well as the 2011 Maintenance Certificate, bound the parties thereto-the Kilmarxes and the Council. Absent the Sheffields' actual or constructive notice of the same, the Sheffields remain bona fide purchasers of the Property, having purchased the Property for good and valuable consideration, in good faith, and without any knowledge of the claim of public access to the Sheffields' seawall and the riprap. The defense of bona fide purchaser for value requires that they be protected from the burden of having to allow public access on and across their seawall and the riprap along the shoreline.
There is no evidence presented which would require this Court to consider and/or conclude that Goulden had, at any time, been aware of the Assent or the 2011 Maintenance Certificate prior to or during his ownership of 85 Nayatt Road and 56 Elm Lane.
The Council's conclusion that, notwithstanding the lack of actual or constructive notice, the Assent is binding against the Sheffields prospectively because they are now aware of the Assent, is non-sensical and has no support in the law. Accepting CRMC's conclusion would mandate that every unrecorded interest in property will ultimately become enforceable against a bona fide purchaser for value whenever that unrecorded interest surfaces. The purpose of the recording statutes would be entirely lost under CRMC's theory. Its conclusion is arbitrary, capricious and legally erroneous. Once the Sheffields have been deemed to be without actual or constructive notice of the Assent, they are entitled to the legal protections that go hand in hand with their status as bona fide purchasers. Therefore, the unrecorded public right of lateral access across the Sheffields' seawall and riprap, as set forth in the Assent, is unenforceable against the Sheffields.
Curiously, the CRMC does not refer to the Sheffields as "bona fide purchasers." Whether intentional or not, the record evidence supports the conclusion that they purchased the Property for value, in good faith, and without any actual or constructive knowledge of the Assent, the 2011 Maintenance Certificate, or any other right of the public to have lateral access across the top of their seawall or across their riprap along the shore.
B The CRMC Assent is Subject to State Recording Statutes
In an effort to explain away the lack of constructive notice, the CRMC asserts that the Assent was not required to be recorded in 1982. More specifically, CRMC submits that G.L. 1956 § 46-23-21, which was not enacted until 1988, governs CRMC Assents and was not in effect at the time the Assent was issued nor can be applied retroactively. That statute reads:
"Notice of permit-Recordation. A notice of permit shall be eligible for recordation under chapter 13 of title 34 as determined by the executive director, and shall be recorded at the expense of the applicant in the land evidence records of the city or town where the property subject to permit is located, and any subsequent transferee of the property shall be responsible for complying with the terms and conditions of the permit. The clerk of the various cities and towns shall record any orders, findings, or decisions of the council at no expense to the council." Section 46-23-21.
CRMC correctly points out that § 46-23-21 became effective after 1982 and was not expressly made retroactive, but it ignores the import of other statutory provisions which pre-date 1982. Rhode Island G.L. 1956 § 34-13-1 reads in pertinent part:
"Any of the following instruments shall be recorded or filed by the town clerk or recorder of deeds, in the manner prescribed by law, on request of any person and on payment of the lawful fees therefor:
" . . .
"(10) All instruments and notices, affecting, or purporting to affect, the title to land or any interest therein . . . ." Section 34-13-1(10) (emphasis added).
Section 34-13-2, entitled "Recording as constructive notice," states:
"A recording or filing under § 34-13-1 shall be constructive notice to all persons of the contents of instruments and other matters so recorded, so far as they are genuine." Section 34-13-2.
Finally, § 34-11-1 reads in pertinent part:
"Every conveyance of lands, tenements or hereditament absolutely, by way of mortgage, or on condition, use or trust, for any term longer than one year, and all declarations of trusts concerning the conveyance, shall be void unless made in writing duly signed, acknowledged as hereinafter provided, delivered, and recorded in the records of land evidence in the town or city where the lands, tenements or hereditaments are situated . . . ." Section 34-11-1 (emphasis added).
Our Supreme Court has analyzed the importance of the land-recording statutes, finding that "[t]he general purpose of land-recording statutes is to provide a public record of transactions affecting title to land." In re Barnacle, 623 A.2d 445, 447 (R.I. 1993). "The purpose of . . . constructive notice is to bind subsequent purchasers and all other affected parties by restrictions that are clearly set forth in prior conveyances or other instruments appropriately recorded." Speedy Muffler King, Inc. v. Flanders, 480 A.2d 413, 415 (R.I. 1984) (emphasis added) (citing Davies v. Little, 111 R.I. 496, 502, 304 A.2d 661, 665 (1973); Case v. Mortgage Guarantee & Title Co., 52 R.I. 155, 157, 158 A. 724, 726 (1932)). "[Section] 34-13-2, by its terms gives the broadest possible effect to constructive notice." Speedy Muffler King, Inc., 480 A.2d at 415 n.1.
CRMC incorrectly states that § 34-11-1 is inapplicable to the instant case because § 34-11-1 "regards conveyances of land' and "[t]here was no conveyance of land associated with this project." CRMC's Mem., at 12. Section 34-11-1 applies to "[e]very conveyance of land, tenements or hereditament . . . for any term longer than one year." Section 34-11-1. The requirement that "tenements" be made in writing and recorded pursuant to § 34-11-1 has been interpreted to include easements and restrictive covenants, including both positive and negative restrictions. See Ham v. Massasoit Real Estate Co., 42 R.I. 293, 107 A. 205, 208 (1919) (agreement to restrict adjoining land - negative easement - not binding where restriction was not included in deed or any other writing); Pyper v. Whitman, 32 R.I. 510, 80 A. 6, 7 (1911) (dismissing claim of right of way to certain streets as shown to purchaser on plat map - positive easement - where plat maps never recorded); Foster v. Browning, 4 R.I. 47, 51 (1856) (grant of perpetual easement is "tenement" which is unenforceable unless statutory provision that preceded § 34-11-1 is satisfied). Contrary to CRMC's argument, the purported right of lateral access across the top of the Sheffields' seawall and along their riprap at the shoreline unquestionably affects Shefffields' ownership interest in the Property, see § 34-13-1(10), and is a "tenement" which was required to be recorded or is otherwise void. See § 34-11-1. Any such right of lateral access that CRMC claims is owed to the public by virtue of the Assent was required to be recorded in order to bind the Sheffields or any other subsequent owner of such adverse claims.
CRMC's suggestion that the Assent did not create any adverse claim to the Property but rather a benefit to the Sheffields, see CRMC's Mem. at 13, is equally without merit. The Sheffields did not seek to construct a seawall or riprap to protect their Property; they were in existence at the time they purchased the Property. To be mandated to allow members of the public atop the seawall on their Property and across their riprap along the shoreline is clearly adverse to the Sheffields' fundamental right to exclude others from their land. Harris v. Town of Lincoln, 668 A.2d 321, 327 (R.I. 1995) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)) ("right to exclude others from one's property is 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'")
Finally, CRMC's reliance on § 46-23-21 is misplaced. CRMC contends that § 46-23-21 would not have been enacted if § 34-11-1 and/or § 34-13-1 already required that the Assent be recorded. Section 46-23-21 goes beyond just requiring that permits be recorded. Unlike § 34-11-1 and § 34-13-1, the more recently enacted § 46-23-21 specifies who is responsible for the cost of recording a permit-the applicant-while also permitting any "orders, findings, or decisions" of CRMC to be recorded at no cost. Section 46-23-21. The General Assembly's decision to enact § 46-23-21 was not redundant nor superfluous to the recording requirements set forth in § 34-11-1 and/or § 34-13-1.
The Assent was required to be recorded in the Barrington land evidence records pursuant to § 34-11-1 and § 34-13-1. There is no exemption from these provisions for a government entity, nor does post-1982 enactment of § 46-23-21 alter the obligation to record the Assent as such obligation existed in 1982. The Assent clearly affects the Sheffields' interest in their land, including the right to exclude others. Because the Assent was not recorded, it is void as to the Sheffields and is unenforceable. CRMC's Decision finding that the unrecorded Assent remains enforceable against the Sheffields, who had neither actual nor constructive notice, is contrary to law and requires reversal.
C The Assent is Unenforceable Whether or Not It is Considered a Conservation Restriction
Alternatively, CRMC argues that the Assent is a "conservation restriction" under Title 34, Chapter 39 and therefore does not need to be recorded to bind a subsequent purchaser. CRMC relies upon § 34-39-3(a), which states in part:
"No conservation restriction held by any governmental body . . . shall be unenforceable against any owner of the restricted land or structure on account of lack of privity of estate or contract, or lack of benefit to particular land, or on account of the benefit being assignable or being assigned to any other governmental body or to any entity with like purposes, or on account of any other doctrine of property law that might cause the termination of the restriction such as, but not limited to, the doctrine of merger and tax delinquency." Section 34-39-3(a).
Thus, according to CRMC, the Assent, or any other restriction "meeting the definition of [conservation restriction], does not need to be recorded in order to be binding on a bona fide purchaser who does not have actual or constructive notice of the restriction." CRMC's Mem. at 16-17.
Here, the Assent does not meet the definition of a conservation restriction. Section 34-39-2 provides:
"A 'conservation restriction' shall mean a right to prohibit or require a limitation upon or an obligation to perform acts on or with respect to or uses of a land or water area, whether stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of the owner of the area or in any order of taking, which right, limitation, or obligation is appropriate to retain or maintain the land or water area, or is appropriate to provide the public the benefit of the unique features of the land or water area, including improvements thereon predominantly in its natural, scenic, or open condition, or in agricultural, farming, open space, wildlife, or forest use, or in other use or condition consistent with the protection of environmental quality." Section 34-39-2(a) (emphasis added).
The Assent was not "an instrument executed by or on behalf of the owner" of Lot 70, the Kilmarxes. The Kilmarxes were the applicants and did not draft or execute the stipulations that were included as part of the approval of their application. CRMC issued the Assent and included the stipulations to ensure public access across the seawall and the riprap on then-Lot 70. CRMC acknowledges as much in its argument to this Court.
"When Mr. Kilmarx applied for a CRMC Assent to reconstruct the seawall and armor that wall with rip rap [sic], he agreed to allow the public to walk atop the rip rap [sic] seaward of the seawall. Generally, the CRMC places conditions for public access on an Assent because the private owner is gaining a benefit at the expense of the general public; such a condition balances those competing interests." CRMC's Mem. at 14.
The Assent is a CRMC-issued instrument with its own stipulations crafted therein. The application for a CRMC permit was "executed by or on behalf" the Kilmarxes, see § 34-39-2(b), but the Assent was not. The Assent is not a conservation restriction.
Even if the Assent were a conservation restriction, which this Court finds it is not, § 34-39-4 explicitly makes conservations restrictions subject to the Rhode Island land-recording scheme. That statute states:
"Interests in real estate. Conservation and preservation restrictions are interests in real estate and a document creating a restriction shall be deemed a conveyance of real estate for purposes of chapters 11 and 13 of this title." Section 34-39-4.
CRMC would have this Court ignore § 34-39-4, which clearly requires that conservation restrictions be subject to the requirements set forth in both § 34-11-1 and § 34-13-1. Our rules of statutory construction do not allow such a conclusion. "[T]he general rule of statutory construction clearly provides that when a statute of general application conflicts with a statute that specifically deals with a special subject matter, and when the two statutes cannot be construed harmoniously together, the special statute prevails over the statute of general application." Whitehouse v. Moran, 808 A.2d 626, 629-30 (R.I. 2002). Section 34-39-4 and § 34-39-3 cannot be construed harmoniously together. Section 34-39-4 is specific in its application to Chapters 11 and 13 of Title 34; § 34-39-3 is a statute of general application. Section 34-39-4 prevails over § 34-39-3. Thus, an unrecorded conservation restriction is void pursuant to § 34-39-4, and § 34-11-1.
IV Conclusion
For the foregoing reasons, this Court holds that the Decision to bind the Appellants to the Assent, which was never recorded and of which the Appellants had no actual or constructive notice, was arbitrary, capricious and affected by error of law. The Assent cannot be enforced against the Sheffields, and CRMC's Decision must be reversed.
This matter is hereby remanded to CRMC with instruction to declare that the Assent is unenforceable against the Sheffields.
Counsel for the Sheffields shall submit an appropriate order for entry.