DocketNumber: P. M. No. 08-7985
Judges: LANPHEAR, J.
Filed Date: 1/14/2010
Status: Precedential
Modified Date: 7/6/2016
On November 5, 2009, Drake conveyed its property to Ismail, LLC. At the closing, Ismail, LLC financed its acquisition with a mortgage to Drake. Drake therefore received and recorded a mortgage deed encumbering the property which abuts the applicants' property. *Page 2
The applicants allege that as Drake no longer owns the abutting property, it no longer has a standing to prosecute this administrative appeal.
The Rhode Island zoning statutes specifically define which parties have standing. G.L. l956 § 45-4-69 governs zoning board appeals, stating in part "(a) An aggrieved party may appeal a decision of the zoning board of review to the superior court for the county . . ."
G.L. 1956 §
*Page 3(4) Aggrieved Party. An aggrieved party, for purposes of this chapter, shall be:
(i) Any person or persons or entity or entities who can demonstrate that their property will be injured by a decision of any officer or agency responsible for administering the zoning ordinance of a city or town; or
(ii) Anyone requiring notice pursuant to this chapter. Section
45-24-31
Past decisions of our High Court charted the waters of the standing statute. Drake can no longer demonstrate that its property will be injured as it no longer has an ownership interest in the real estate. Town of Coventry, supra;Cortellesso v. Town of Smithfield Zoning Board of Review,
A mortgage is merely a lien on property and an interest thereon, if any, is conditional and limited. See Powell on RealProperty, §§ 36-2, 37-10, Black's Law Dictionary, p. 466. A mortgage is not an ownership interest but an entitlement to foreclose if mortgage conditions or covenants are not met. Rhode Island decisions which infer any greater interest for a mortgagee view the respective positions of the parties after the mortgage has been foreclosed.140 Reservoir Avenue Associates v. Sepe Investments, LLC.,
The statute specifically states that a party claiming standing under §
In the same, appellant has failed to reference a particular statute in the zoning chapter which would entitle him to notice, and therefore standing, pursuant to §
. . . When the complaint is filed by someone other than the original applicant or appellant, the original applicant or appellant and the members of the zoning board are made parties to the proceedings.2
Note that this statute does not say that any participant at the zoning board may appeal, or that they must have specific notice. Accordingly, the Court cannot conclude that §
The motion to dismiss the appeal is granted, and the appeal is dismissed.
DeCesare v. Board of Elections , 104 R.I. 136 ( 1968 )
In Re D'Ellena , 640 A.2d 530 ( 1994 )
Cortellesso v. TOWN OF SMITHFIELD ZONING BOARD OF REVIEW. , 888 A.2d 979 ( 2005 )
Town of Coventry Zoning Board of Review v. Omni Development ... , 814 A.2d 889 ( 2003 )
Warth v. Seldin , 95 S. Ct. 2197 ( 1975 )
Summers v. Earth Island Institute , 129 S. Ct. 1142 ( 2009 )