Annicelli v. Town of South Kingstown

• Decision Date: 13 July 1983
• Docket Number: No. 80-508-A,80-508-A
• Parties: Ida ANNICELLI v. TOWN OF SOUTH KINGSTOWN et al. ppeal.
• Court: Rhode Island Supreme Court

Page 133

463 A.2d 133

Ida ANNICELLI v. TOWN OF SOUTH KINGSTOWN et al.

No. 80-508-Appeal.

Supreme Court of Rhode Island.

July 13, 1983.

Edward T. Hogan, Thomas S. Hogan, Donald J. Packer, Hogan & Hogan, East Providence, for plaintiff.

Robert B. Gates, Dennis J. Roberts II, Atty. Gen., Daniel J. Schatz, Sp. Asst. Atty. Gen., Providence, Jane L. Bloom, New York City, Harold Ward, Providence, Anthony C. Liotta, Acting Asst. U.S. Atty. Gen., Washington, D.C., for defendants.

OPINION

KELLEHER, Justice.

This is a case of first impression in Rhode Island which pits a landowner's constitutional rights against the ecological primacy of a barrier beach. The defendant, town of South Kingstown (the town), appeals from the decision of a justice of the Superior Court granting the plaintiff, Ida Annicelli (Annicelli), declaratory relief from certain amendments to the town's zoning ordinance. As a result of those amendments, various segments of the town's shoreline were designated "High Flood Danger" districts (HFD zone). One such area encompassed Green Hill Beach where Annicelli's property is located. Classification of the beach as an HFD zone effectively precluded Annicelli from constructing a single-family dwelling on the land. The trial justice found that the HFD zone, as applied to Annicelli's property, constituted an indirect confiscatory taking without compensation in violation of articles V and XIV of the amendments to the United States Constitution and article I, section 16, of the Rhode Island Constitution.

In his decision, the trial justice concluded that the town was obliged to exercise its powers of eminent domain to compensate Annicelli. He determined that the effect of the HFD zone was to return the beach property to its natural state for the public benefit and that, under these circumstances, it was inappropriate for the town to exercise its police powers. However, the judgment entered by the trial justice was inconsistent with his decision. Rather than order compensation pursuant to condemnation proceedings, the judgment enjoined the town from enforcing the applicable provisions of the ordinance against Annicelli's property and further directed the building inspector to issue the requested permit.

After a thorough review of the record, we are of the opinion that Annicelli has in fact established an action of inverse condemnation against the town and thus must be compensated for a constructive "taking" of her property. Before expounding upon the rationale underlying this conclusion, we shall recapitulate the factual situation.

On May 8, 1975, Annicelli, an out-of-state resident, signed a purchase-and-sale agreement with the owner of real estate on Green Hill Beach for the purpose of constructing a single-family dwelling there. The stated purchase price was $16,750. Among other stipulations, the agreement provided that Annicelli would relieve the seller of any responsibility toward successfully obtaining "all necessary buildings, sanitation, and coastal resources permits." Three weeks after the agreement was signed, the town council adopted the amendments to the zoning ordinance creating the HFD zone which gave rise to the instant controversy.

Approximately five months after the amendments were adopted, Annicelli took title and possession of the land. Immediately thereafter, Annicelli applied to the town building inspector for a permit to build a single-family dwelling on her property. She also applied for a permit from the Rhode Island Department of Health to construct an individual sewage-disposal system for her proposed dwelling. Although the permit from the health department was approved, the application for the building permit was denied on the ground that a single-family dwelling was not permitted in an HFD zone.

Rather than appeal the decision of the building inspector to the zoning board of review, Annicelli filed an action for declaratory judgment in the Superior Court on January 15, 1976. The trial justice denied a defense motion to dismiss the action for failure to exhaust administrative remedies. In denying the motion, the trial justice reasoned that the zoning board would have been powerless to grant Annicelli a special exception because none of the permitted uses within the HFD zone included residential dwellings. Indeed, § 14.53 of the ordinance, entitled "Uses and Structures Prohibited Within the HFD Zoning District," provides in part as follows:

"No residential dwelling designed or used for overnight human occupancy shall be constructed within the HFD Zoning District as defined herein. This prohibition shall apply even if the land within said HFD Zoning District is above the base flood elevation."

The trial justice further ruled that any attempt by Annicelli to obtain a variance as opposed to a special exception would have been a similarly futile exercise. The statute applicable at the time the action was brought authorized the board to grant a variance only for the reinstatement of a nonconforming use that was unavailable to Annicelli. It did not authorize so-called use variances. Entitled "An Act Relating to Zoning Ordinances for South Kingstown," ch. 101 of the 1973 Public Laws provided in § 18 that the zoning board of review shall have the power to:

"b) Grant a variance from the restrictions of the zoning ordinance other than use restrictions or requirements * * *.

"c) Grant a variance from the use regulations or requirements of the zoning ordinance only where application is made for reinstatement of a non-conforming use * * *."

The trial justice noted that P.L.1973, ch. 101, § 18, was amended by P.L.1976, ch. 11, § 1, subsequent to the filing date of Annicelli's complaint. The effect of the amendment was to eliminate the distinction between use variances and other types of variances, thereby empowering the board to grant the former under appropriate circumstances. Consequently, while her action was pending in Superior Court, Annicelli once again applied to the building inspector for a permit under the newly amended statute. To her chagrin she was once again summarily denied on the ground that the ordinance forbade such use of the property. Annicelli thereafter filed an amendment to her complaint, and trial commenced on June 13, 1977.

Not unexpectedly, Annicelli's witnesses indicated that the property was best suited for use as a single-family dwelling. This conclusion was based upon the belief that the permitted or excepted uses were completely impractical as applied to Annicelli's property because of the size and location of the lot and the nature of its topography. Permitted uses under § 14.41 and excepted uses under § 14.42 of the ordinance include, among others, a horticultural nursery or greenhouse, a park or playground, a wildlife area or nature preserve, or a golf course or marina; also allowed were the raising of crops and animals, the storing of commercial vehicles, and the repairing of boats. Annicelli's appraiser estimated that the property was worth $1,000 in its present state because none of the enumerated uses was practical and $1,000 was, as he put it, the "most anyone would pay * * * for a spot to sit on the beach to go swimming." The town's appraiser opined that the property was probably worth $8,500. However, he conceded that several of the uses were impractical while denying that Annicelli was deprived of all reasonable or beneficial use of her property.

The testimony elicited at trial included an enlightened explanation of the role barrier beaches play in the ecological system. To comprehend fully and analyze fairly the matter before us, we shall review this testimony. In 1975 the town adopted an Environmental Master Plan (the plan) particularizing the town's recreational and environmental needs. The plan is part of the Comprehensive Community Plan that serves as the long-range planning device for the development of land-management policies in the town. It recommended that the town's barrier beaches, particularly Green Hill Beach, be classified as open space and conservation areas. To further these goals, the plan called for the creation of HFD zones to prevent construction of residences, to restrict uses that contribute to erosion, and to preclude development along the immediate ocean front. However, the plan did not counsel the town to condemn barrier beach-front property or raze homes presently situated on Green Hill Beach. It simply advised the town to prohibit further development of any undeveloped lots on Green Hill Beach because the dunes there were dangerously low in profile. Further development of Green Hill Beach, according to the plan's predictions, would compound the erosion already taking place, thereby creating a hazard to the public health and safety.

At trial, expert witnesses testified that a barrier beach is a narrow strip of unconsolidated material consisting of sand or cobble extending roughly parallel to and below the shoreline. The beach is formed by the marine processes of currents and wave action and is usually separated from the mainland by a salt or freshwater pond. The record clearly reveals to the untutored mind the crucial role that barrier beaches play in harboring shorelines from storm erosion. ¹ In addition to performing this function, barrier beaches protect the coastal ponds behind them which are highly productive resources that serve as spawning grounds for various species of fish and other aquatic life.

According to the uncontradicted testimony, barrier beaches are extremely fragile ecological systems that cannot tolerate construction or foot and vehicular traffic because such activities destroy the dune grass that actually stabilizes the dune itself. When destabilization occurs, the barrier beach's ability to play the protective role designed for it by nature is compromised. The area in which Green Hill Beach is located has been designated a "developed" as opposed to an "undeveloped" barrier beach because of...