Brunelle v. Town of South Kingstown

• Decision Date: 31 July 1997
• Docket Number: No. 95-489-A,95-489-A
• Parties: Robert L. BRUNELLE v. TOWN OF SOUTH KINGSTOWN et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1075

700 A.2d 1075

Robert L. BRUNELLE v. TOWN OF SOUTH KINGSTOWN et al.

No. 95-489-Appeal.

Supreme Court of Rhode Island.

July 31, 1997.

Robert Karmen, Providence, for Plaintiff.

Anthony F. DeMarco, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG and BOURCIER, JJ.

OPINION

BOURCIER, Justice.

This case comes before us on cross appeals from a final judgment of the Superior Court entered in favor of the plaintiff, Robert L. Brunelle (Brunelle), and against the defendants, the town of South Kingstown, its town council members, its town treasurer, and its building and zoning officer. The final judgment awarded Brunelle compensatory damages as well as attorney's fees pursuant to 42 U.S.C. §§ 1983 and 1988 for the temporary taking of his land because of the defendant town building inspector's denial of his request for a building permit in December, 1985 and the defendant town council's later denial of his application for a change of zone on October 11, 1988 on his parcel of land upon which he had intended to construct some 300 mini-storage or self-storage units along with an office building. The trial justice found the defendant town council's action to have been "arbitrary and capricious," and that Brunelle was entitled to temporary "taking" damages from October 11, 1988 to January 30, 1990, as well as attorney's fees.

The town and its municipal defendants in their appeal contend that no taking resulted from the original 1976 rezoning of the plaintiff's land or from the building inspector's denial of his request for a building permit or from the town council's later denial in 1988 of his request for a change of zone on the land. The defendants accordingly assert that the trial justice erred in awarding damages and attorney's fees to plaintiff.

Brunelle, in his appeal, contends that the trial justice, though correct in finding a taking, erred by utilizing an improper method for computation of his "taking" damage award and that in awarding attorney's fees, she failed not only to compute those fees on the basis of his attorney's current billing rate but also to include thereon the addition of prejudgment interest.

For the reasons hereinafter set out, we reverse the judgment entered below and remand this case to the Superior Court with directions to dismiss plaintiff's action.

I Case Facts and Travel

This appeal springs from a townwide land-zoning revision undertaken by the town of South Kingstown in 1976, pursuant to special enabling legislation enacted by the General Assembly. See P.L.1973, ch.101.

In the course of that rezoning, a particular three-and-a-half acre parcel, a part of a larger tract of land owned by the Penn-Central Corporation (Penn-Central) and forming part of its overall West Kingstown railroad station and yard, was inadvertently depicted on the town zoning map accompanying the zoning revision ordinance as having been rezoned from M-1 Manufacturing use to R-20 Residential use. Penn-Central at no time, however, questioned or challenged the discrepancy between the lot's zoning map depiction and the town council's zoning ordinance.

Some nine years later, plaintiff, Brunelle, an experienced builder and part owner of DeFelice Construction as well as a licensed real estate broker and former member of the zoning board of review in the neighboring town of Richmond, was interested in purchasing land in the vicinity of the University of Rhode Island upon which to construct and operate a so-called mini-storage or self-storage business as well as a professional office building. Brunelle, being friendly with Anna Prager (Prager), the South Kingstown town planner, inquired of her about available land in South Kingstown that would permit his intended construction projects and business. Prager told him that she was uncertain whether mini-storage units were a permitted use under the town zoning ordinance but that his best opportunity to find any land zoned for manufacturing or business use in South Kingstown would be in the area of the West Kingstown railroad station. Accordingly that advice from Prager led Brunelle to Penn-Central. He shortly thereafter entered into negotiations with Penn-Central to purchase a portion of its land holdings. Brunelle's interest centered on a three-and-a-half acre portion of Penn-Central's land that was shown on the town's zoning map as zoned R-20 Residential, but which he had been told by Prager, and which he had himself determined was actually zoned M-1 Manufacturing. He concluded that the lot's zone depiction on the town's zoning map was erroneous. As a result Brunelle negotiated a very reasonable $18,000 purchase price that his counsel concedes "reflected Penn-Central's desire to sell the land as fast as possible and the fact that also that the property was listed as zoned residential on the town's official zoning map."

Brunelle, because of his experience in zoning matters, was aware that the three-and-a-half acre parcel that he and Penn-Central had carved out of Penn-Central's larger land holdings would for zoning purposes constitute a substandard lot because it lacked sufficient lot street frontage on a public roadway. He attempted, without success, to condition his purchase of the lot upon Penn-Central first obtaining relief from the lot's street frontage infirmity. Later Brunelle, prior to taking title to the lot, asked Penn-Central to join with him in making application to the town zoning board of review to request relief from the lot's street frontage deficiency by way of a variance. Penn-Central also refused that request. Undaunted, Brunelle then filed his own individual application for variance relief and on the variance application form listed himself as "buyer under sales agreement," adding that he wanted to purchase the lot but that it did not have the required and necessary lot street frontage and that "the portion of Lot 15 that he wishes to purchase is serviced only by a private road, Railroad Avenue." Despite the fact that Brunelle lacked any legal standing to request the variance as a "buyer under sales agreement," see Parise v. Zoning Board of Cranston, 92 R.I. 338, 168 A.2d 476 (1961); Tripp v. Zoning Board of Pawtucket, 84 R.I. 262, 123 A.2d 144 (1956), the town zoning board nonetheless, in order to accommodate him, granted his request for a residential use street frontage variance on October 23, 1985.

Some six weeks later, on December 11, 1985, Brunelle took title to the three-and-a-half acre lot, and the matter before us was spawned. Abandoning any intention of using his lot for residential purposes as expressed in his earlier variance request, he instead engaged local counsel, Margaret A. Laurence (Laurence), to have the town correct the alleged discrepancy between its official zoning map and the town zoning ordinance so as to show and place the lot in its true M-1 Manufacturing zone as shown on the town's comprehensive plan map. Laurence and/or Brunelle then began meeting and corresponding with various town officials, including the town solicitor, in order to determine how the lot's zoning depiction could be changed. Brunelle determined that he should file a request to amend the zoning map and ordinance and, in August 1986, did petition and request the town council to amend the zoning designation for his lot. As required by the zoning ordinance, the requested zone change was referred to the town planning board. The board in turn began to research the claimed zoning error, as did Brunelle's attorney, the town solicitor and the town planner.

On July 22, 1988, Brunelle's attorney wrote to the town solicitor informing him that she had concluded that the town zoning map's R-20 Residential zoning depiction of Brunelle's lot following the town's 1976 zoning revision was the result of a "drafting error and not the intention of the Planning Board or the town council." Laurence suggested that the zoning board of review pursuant to § 130 of the zoning ordinance might be authorized to correct the zoning error and requested that the council's hearing on Brunelle's zoning change petition be continued to await the town solicitor's advice. On July 28, 1988, the town solicitor replied to Laurence's letter and informed her that § 130 of the zoning ordinance appeared to be of little assistance in resolving the problem and that the town council remained the proper source of any zoning map correction. On September 19, 1988, Prager, the town planner, advised the town manager that her research, done at the request of Brunelle's attorney, also revealed that Penn-Central's land, prior to 1976, had been zoned "manufacturing" and that in the 1976 revision it had been partially rezoned manufacturing and part residential because of its being adjacent to both manufacturing and residential use areas. She acknowledged, however, that the portion of the lot Penn-Central and Brunelle had carved out of Penn-Central's larger tract was depicted on the 1976 zoning map as R-20 Residential, but that the town's drafting department zoning revision work maps depicted the lot as zoned both R-20 and M-1. She concluded that the lot was erroneously depicted on the official map as R-20 Residential. She noted, however, that she was uncertain about the planning board's original zoning intent.

Two days later, on September 21, 1988, Brunelle wrote to the town council regarding Prager's review of the problem and acknowledged that the lot had been rezoned R-20 Residential as the result of innocent error and, that even though it could be developed for residential use, he believed it would be more beneficial to him if developed commercially and requested that he be allowed to build and rent some 300 or more mini-storage units as well as an office building on the lot.

On September 26, 1988, the scheduled as advertised public hearing required on Brunelle's zoning amendment request was held. At that hearing, there was overwhelming public opposition presented to the...