Camara v. City of Warwick, 74-333-A

• Decision Date: 17 May 1976
• Docket Number: No. 74-333-A,74-333-A
• Citation: 116 R.I. 395,358 A.2d 23
• Parties: Thomas CAMARA et al. v. CITY OF WARWICK et al. ppeal.
• Court: Rhode Island Supreme Court

Page 23

358 A.2d 23

116 R.I. 395

Thomas CAMARA et al. v. CITY OF WARWICK et al.

No. 74-333-Appeal.

Supreme Court of Rhode Island.

May 17, 1976.

[116 R.I. 409] Breslin, Sweeney & Gordon, David F. Sweeney, Warwick, for plaintiffs.

William J. Toohey, City Sol., Howard R. Haronian, Warwick, Aram A. Arabian, Providence, for defendants.

OPINION

DORIS, Justice.

The plaintiffs brought this action in the Superior Court to declare null and void an amendment to the zoning ordinance of the city of Warwick and to enjoin the issuance of any building permit sought in reliance on the amendment. A justice of the Superior Court heard the case and entered judgment denying and dismissing the prayers of the plaintiffs. The case is before this court on the plaintiffs' appeal from that judgment.

The challenged amendment, ordinance No. 0-74-7, would amend the zoning ordinance of the city of Warwick by changing the classification of Lot No. 6 on Tax Assessor's Plat No. 239 from Residence A-15 to Limited Business-Multi Family. This change would allow the erection of multi-unit apartments on Lot No. 6 where now only single detached dwelling units may be built. Warwick Zoning Ordinance §§ 5.3.2. and 6.2.3.1. The record discloses that Woloohojian Realty Corporation, owner of Lot No. 6, had petitioned for the zoning ordinance change on December 11, 1973. The Warwick City Council gave No. 0-74-7 final passage on February 19, 1974, and the Mayor of the city of Warwick approved it on February 28, 1974.

The plaintiffs' complaint for declaratory judgment and injunctive relief was filed in the Superior Court on February 27, 1974. On March 6, 1974, a Superior Court justice issued a restraining order enjoining the building inspector from issuing a building permit. This order remained in effect until September 16, 1974, when the judgment appealed from was entered. The decision supporting that judgment stated that defendant, Woloohojian Realty Corporation, at that time had a building permit from the city of Warwick for the erection of some 400 apartment units on Lot No. 6. On December 12, 1974, a Superior Court justice ordered the restraining order reinstated pending the outcome of this appeal. On March 21, 1974, a Superior Court justice had ordered plaintiffs to file a surety bond in the sum of $10,000 pursuant to the provisions of Super.R.Civ.P. 65(c). The plaintiffs filed such a bond on March 27, 1974, but assessment of damages following the September 16 judgment was postponed by reinstatement of the restraining order on December 12.

The plaintiffs, Thomas Camara et ux., own a parcel of land abutting Lot No. 6. The plaintiffs, Harold C. Miner, Jr., et ux. and Thomas F. Flynn, Jr., et ux., own parcels of land near Lot No. 6. The plaintiff, Cowesett Improvement Association, is a corporation organized to represent the interests of the named plaintiffs and of other landowners affected by No. 0-74-7. The defendant, William Costello, is the building inspector for the city of Warwick. Woloohojian Realty Corporation was joined as a party defendant on March 19, 1974, when a Superior Court justice granted its motion to intervene pursuant to the provisions of Super.R.Civ.P. 20.2.

Lot No. 6 has roughly a rectangular shape covering 33.5 acres, of which approximately 3.2 acres is under water. Along its 2235-foot eastern edge is Hardig Road, which runs north and south and has a paved width of 20 feet or one and one-half lanes. Across Hardig Road for almost this entire stretch are high power electric lines of the Narragansett Electric Company. This property is zoned Residence A-15. Beyond it and also running north and south is U.S. Interstate 95, Rhode Island's major highway. Bordering Lot No. 6 on its 555-foot southern side is Cowesett Road, which runs east and west and is about two lanes wide. Thus, the southeast corner of Lot No. 6 is formed by the intersection of Hardig Road and Cowesett Road. Across Cowesett Road is a power station of the Narragansett Electric Company on land zoned Residence A-40. To the west of the power station on Cowesett Road are the Flynns' and Miners' homes, also zoned Residence A-40. The 1930-foot western boundary of Lot No. 6 is shared by the Little Rhody Beagle Club's 95-acre parcel, zoned Residence A-15, and its access road from Cowesett Road. The club is an existing nonconforming use. Across this access road is a vacant lot that belongs to the Miners and is zoned Residence A-15. Adjacent to the 826-foot northern edge of Lot No. 6 is the Camaras' parcel, which is 200 feet wide and fronts on Hardig Road. On the other side of the Camaras' lot is the Royal Crest Apartment complex located on a 71.5 acre parcel, also zoned Residence A-15. The Warwick Zoning Board of Review granted an exception to permit the erection of some 480 apartment units on this parcel. The Royal Crest Apartments face north on Route 117, also known as Centreville Road, a two-lane road which runs east and west. Just beyond Hardig Road, Route 117 expands to four lanes with ramps leading onto Route 95. Since there is no access to Route 95 from Cowesett Road, the shortest path to Route 95 from Lot No. 6 is north on Hardig Road and east on Route 117.

On appeal to this court plaintiffs claim that the trial justice erred in upholding the validity of No. 0-74-7 despite alleged violations of the Fresh Water Wetlands Act, G.L.1956, § 2-1-18 et seq., the Warwick City Council Rules, the Warwick Zoning Ordinance, and the enabling act, G.L.1956 (1970 Reenactment) chapter 24 of title 45. The plaintiffs also argue that the Superior Court justice erred in requiring plaintiffs to post a $10,000 surety bond. The plaintiffs urge this court to reverse the judgment below, declare No. 0-74-7 null and void, and vacate the surety bond order. For the reasons that follow, plaintiffs' claims must fail.

The plaintiffs firs claim that the Warwick City Council passed No. 0-74-7 without complying with the provisions of its own Rule 15(b). This rule requires the city council to follow certain procedures for '(a)ll applications for approval to alter Wetlands pursuant to Chapter 2-1 of the General Laws of Rhode Island, as amended * * *.' However, the record does not disclose that any such application has ever been made for Lot No. 6. On December 19, 1973, Woloohojian Realty Corporation did request the Department of Natural Resources to determine whether Lot No. 6 was affected by the Fresh Water Wetlands Act. This request was made in accordance with the following provision of § 2-1-22: 'Prior to the application (for approval to alter a wetland), a request may be made for preliminary determination as to whether or not the wetlands act applies.' Such a request for preliminary determination of applicability is a step precedent to and distinct from the application for approval to actually alter a wetland. J. M. Mills, Inc. v. Murphy, R.I., 352 A.2d 661, 674 (1976) (Kelleher, Jr., dissenting). Woloohojian Realty Corporation never took the second step which would have activated the procedures of Warwick City Council Rule 15(b). We therefore agree with the trial justice that No. 0-747-7 was not null and void due to defendants' failure to comply with Rule 15(b).

The plaintiffs next claim that No. 0-74-7 was passed in violation of Warwick City Council Rule 15(d). This rule says that '(n)o action shall be taken by the City Council on applications involving land use as may be required by statute or ordinance unless the applicant shall have first complied with General Laws 1956, Section 2-1-1 et seq. as amended (Wetlands Act so-called) approved January 15, 1974 * * *.' Rule 15(d) took effect January 15, 1974, well before the city council acted on the rezoning application by Woloohojian Realty Corporation. However, it is our view that in passing No. 0-74-7 the Warwick City Council did not violate its own Rule 15(d).

In response to the request by Woloohojian Realty Corporation on December 19, 1973, for preliminary determination of the applicability of the Fresh Water Wetlands Act to Lot No. 6, the Department of Natural Resources issued two contradictory letters. Both were dated January 18, 1974, but one stated that none of Lot No. 6 was wetlands while the other declared that certain portions of the land indeed were wetlands. However, the record also discloses that only the letter holding Lot No. 6 not to be wetlands in any part was before the Warwick City Council prior to its approval of No. 0-74-7. Under these circumstances, we agree with the trial justice that No. 0-74-7 is not invalidated on account of noncompliance by the Warwick City Council with its own Rule 15(d).

As a result of our discussion of Rules 15(b) and 15(d), we conclude that the Fresh Water Wetlands Act cannot affect the validity of No. 0-74-7. Any allegation of violation of that Act is a separate matter that has no place in this appeal.

The plaintiffs next claim that the notice regarding No. 0-74-7 was deficient in that it alerted the public to a proposed reclassification of a particular lot only rather than to a proposed amendment to the Warwick Zoning Ordinance. While the exact law supposedly violated has not been brought to our attention, we conclude that the express language of the notice ¹ was sufficient to inform the reader that the amendment to the Warwick Zoning Ordinance was contemplated. Nothing in the record before us gives us cause to disagree with the trial justice's finding that '(t)he City Council of Warwick complied with all the requirements of the law, statute or ordinance, concerning the petition, notice and hearing for the change of zoning.'

More substantively, plaintiffs claim that No. 0-74-7 violates existing provisions of the Warwick Zoning Ordinance in two ways: (1) by changing the classification of Lot No. 6 from Residence A-15 to Limited Business-Multi Family directly without first classifying it Limited Business, as seems to be required by § 6.2.1 and 6.2.3.1 of the Warwick Zoning...