Oceanfront property becomes developer’s nightmare

Robert Lamoureux built a towering house overlooking the ocean at Point Judith three years ago and began an ordeal that many developers would consider their worst nightmare.
When an out-of state buyer surveyed the Narragansett house, he found Lamoureaux had built the 2,400-square-foot contemporary entirely on property belonging to Rose Nulman Park.
Not just any private park, Rose Nulman is one of the most popular destinations in Rhode Island, and its late founder willed the land for permanent public recreational use.
The $1.8 million sale was quickly abandoned and in 2011 Lamoureaux began an effort to rescue the house that should ultimately reach its conclusion by next spring.
In March, Lamoureux appealed to the R.I. Supreme Court a Superior Court order to tear the building down. Arguments in the case are scheduled before the end of this year.
While he doesn’t dispute that his property is not where he thought it was, Lamoureux argues in his appeal that tearing down the house is a drastic remedy that will cause far more harm to him than keeping it there would for the park.
“Our argument is the law should recognize certain extraordinary circumstances where harm to one party is inordinate compared to the other and a suitable alternative remedy exists,” said James Kelleher, a lawyer with Revens, Revens & St. Pierre in Warwick who is representing Lamoureaux.
The remedy Lamoureux’s team would like to see is some form of land swap with Nulman Park.
The house, built on speculation and currently vacant, sits on an overgrown part of the park rarely used by visitors.
To avoid tearing it down or having to move it, Lamoureaux is willing to exchange the land the house sits on for some of his waterfront acreage, Kelleher said.
“Because Mr. Lamoureux’s parcel has a couple hundred feet of waterfront, that certainly is something that could be transferred to the [Rose Nulman] trust for additional access for surfers and more of the intended purpose,” Kelleher said. “One of the things we continue to argue is the section that was taken mistakenly was not a section in use. It was covered in scrub and was not utilized for any purpose. The portion subject to potential transfer would be completely useful.” But so far the Rose Nulman Park Foundation’s trustees, Carol and Joel Nulman, have not been receptive to selling or swapping any park land to allow for the house, which has been a dark and lonely presence on the waterfront for the last two years.
Saul Nulman, Carol and Joel’s father, first purchased land at the end of Point Judith, the lighthouse-tipped headland at the entrance to Narragansett Bay, in 1993.
At the time, it was the site of an abandoned restaurant and favorite place for Rhode Islanders and visitors to sit and watch the incoming Atlantic swells or venture out into them.
Shortly before his death in 2007, Nulman transferred the land to the Rose Nulman Park Foundation, named for his mother, which prohibited it from being used for anything but “recreation and contemplation.”
The trust established a $1.5 million penalty, to be paid personally by the trustees to New York Presbyterian Hospital, if they sold it for development.
Lamoureux first bought property on Ocean Road abutting the park parcel in 1984 and, although he had always intended to build there, sat on the property until the building boom of the mid-2000s.
After a lengthy permitting process reflecting the environmental sensitivity of the site, which includes marsh and pond in addition to oceanfront, the town granted a building permit in 2009.
The house was built the next year using plans put together with a survey from Carrigan Engineering Inc. of Narragansett, who Lamoureux paid $30,000 for work that was later found to be wrong.
Until the prospective buyer did a second survey, no one from the Nulman Foundation questioned the location of the property line, which turned out to be further south than first thought. Pleading an honest mistake, Lamoureux tried to work out a land swap or sale with the Nulmans for the 13,000-square-foot encroachment. They declined and instead took Lamoureux to Superior Court, where Judge Brian Stern ruled the house had to be moved or razed.
In his ruling, Stern said although Lamoureux’s encroachment was only 6 percent of the park’s land area, “this court finds the figure to be 6 percent more than what a landowner in fee simple should be forced to transfer. … Furthermore, forcing the sale of the Nulman Property, or part thereof, would be inconsistent with the fundamental right of property ownership.”
Bruce I. Kogan, a professor who teaches property, and trusts and estates law at Roger Williams University Law School, said he would be very surprised if the state Supreme Court reverses Stern’s decision.
“I don’t see the judge overturning this,” Kogan said. “In property law, you can find cases where someone built a little bit over a line, a matter of inches, and instead of saying you have to tear down, they say it is OK for a small strip. But having the house built on the park is not insignificant.”
Mark Freel, an attorney with Edwards, Wildman Palmer LLP representing the Nulmans, declined to comment on a nonteardown solution.
If an appeal doesn’t work, Lamoureux may have to return to the idea of moving the house.
This past spring, Lamoureux applied for a variance to move the house about 25 feet to the northwest, which was granted by the Narragansett Zoning Board in June, said Narragansett Planning Director Michael DeLuca.
DeLuca said while the move will bring the house closer than allowed to a wetland, the old plan actually filled in a wetland that will be restored and now crossed by a bridge in the new plan.
Lamoureux will also need approval from the state R.I. Coastal Resources Management Council, and has filed an application with that agency, a spokeswoman said. •

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