O’CONNOR

Justice Sandra Day O’Connor, the first woman to serve on the Supreme Court of the United States, has helped to resolve a dispute over waterfront property in Barrington.

O’Connor, 78, who retired from the Supreme Court in 2006, was part of a three-judge panel that heard arguments about the Barrington case in May, when O’Connor was sitting by designation on the 1st U.S. Circuit Court of Appeals in Boston. She was there for a two-day stint at the invitation of the court’s only Rhode Islander, Senior Circuit Judge Bruce M. Selya.

As it turns out, O’Connor did not write the opinion in the Barrington case, but she did decide it along with Selya and the court’s former chief judge, Michael Boudin.

The July 14 opinion, written by Boudin, explained that in 2003 James H. Reyelt accepted an offer to sell property on Payne Road, just north of Barrington Beach, to William B. Danzell and Louisa F. Beenker Danzell for $1.225 million. The price was to increase later depending on the outcome of an application to the Barrington zoning board.

The property had two houses on a single lot, meaning the zoning board had to approve any changes to the buildings. The Danzells were willing to pay more if they could get approval “to enlarge the present livable space,” Boudin wrote.

The Danzells agreed to apply for a variance within three months of the closing and to pay an additional $200,000 to Reyelt if the variance was issued within a year of the application. But they would only pay an additional $100,000 if a variance was denied or they were “diligent and used good faith” in applying and the variance had still not been granted within a year of the application.

The closing took place on Oct. 30, 2003, so the variance application should have been filed by late January 2004. But the Danzells did not submit an application until Aug. 18, 2004, when they proposed to double the size of one of the two houses on the property, according to the decision.

The zoning board had a hearing on Oct. 21, 2004 — about a week short of one year after the closing — and the board unanimously rejected the application. The Danzells then offered to pay Reyelt $100,000, but Reyelt refused the offer and sued for the full $200,000.

The federal courts handled the case because it involved parties from different states. According to the lawsuit filed in 2006, Reyelt was a citizen of Florida, and the Danzells were citizens of Hilton Head, S.C.

In 2007, Senior U.S. District Judge Ronald R. Lagueux decided that the Danzells only had to pay $100,000. He said the Danzells’ failure to file for a variance within three months did not trigger the full $200,000 payment and their efforts to get a variance had been adequate.

Reyelt appealed, and the 1st Circuit upheld Lagueux.

“The district judge wrote a typically thorough and lucid decision and the result is intuitively obvious in light of the court’s detailed fact-findings,” Boudin said. “We write, albeit only briefly, because two of the district court’s legal rulings touch on recurring problems, and our own imprimatur may be useful. One of those problems — the significance of the three-month application period — is especially interesting and we begin with it.”

Although the contract called for filing the zoning application within three months, the Danzells missed that deadline by more than six months “without any adequate excuse,” Boudin said.

So why shouldn’t Reyelt be able to get the full $200,000 based on the breach of the terms of the contract? “One part of the answer,” Boudin wrote, “is that the three-month period should not be read as a mechanical requirement but as a benchmark for measuring diligence.”

Although the filing was delayed, the zoning board did render its decision within the required one-year window, Boudin noted. “As matters turned out, the delay, although undue, did not cause the loss of the extra money,” he wrote. “The gist of the board’s reason for the rejection was that the double-in-size building sought by the Danzells was just ‘too big’ in a situation where having a second house at all already made the property nonconforming.”

In his appeal, Reyelt also noted that the contract called for the Danzells to be “diligent” in pursuing the variance, and he argued, in essence, that the Danzells had done a “half-baked job,” Boudin said.

The application was accompanied by four diagrams showing outlines of the existing and proposed construction. But it didn’t include a “schematic design,” and two board members said the application lacked detail showing what the completed building would look like. The four diagrams cost $4,700 to prepare, while the schematic design would have cost an additional $24,000, according to the decision.

Boudin said the comments of the two board members suggested the schematic design would have been helpful, but he said the basic objection was to a major enlargement of a non-conforming building. “A major enlargement was seemingly the Danzells’ aim from the outset,” Boudin wrote. “And a reasonable effort does not entail one side’s giving up a main objective or spending disproportionately to achieve it.”

In conclusion, the 1st Circuit said, “Each side assumed a risk — the Danzells that they would not get the enlargement they sought and Reyelt that he would get only $100,000 more — and that is just what happened.”

O’Connor also heard arguments in a Rhode Island case involving Anthony Lipscomb, a Providence man who has been sentenced to 16 years and 3 months in prison for cocaine trafficking and firearms offenses. But that decision has not yet been issued.

efitzpat@projo.com