Cianciarulo v. Tarro, 2885

• Decision Date: 22 March 1961
• Docket Number: No. 2885,2885
• Citation: 92 R.I. 352,168 A.2d 719
• Parties: Giovannina CIANCIARULO et al. v. Anthony TARRO et al. Equity
• Court: Rhode Island Supreme Court

Page 719

168 A.2d 719

92 R.I. 352

Giovannina CIANCIARULO et al. v. Anthony TARRO et al.

Equity No. 2885.

Supreme Court of Rhode Island.

March 22, 1961.

Haig Barsamian, Angelo Cianciarulo, Providence, for complainants.

Harry Goldstein, Asst. City Sol., John P. Bourcier, Providence, for respondent Anthony Tarro.

ROBERTS, Justice.

This bill in equity was brought to enjoin the respondents from acting pursuant to an amendment to the zoning ordinance to make any commercial use of certain property located on Broadway in the city of Providence. The cause was heard by a justice of the superior court who thereafter, on March 2, 1960, entered a decree denying and dismissing the bill. From that decree the complainants have prosecuted an appeal to this court.

It appears from the record that in 1956 one of the respondents, Anthony Tarro, hereinafter referred to as respondent, purchased a large dwelling house and the lot on which it stood. The property is located on the northerly side of Broadway between its intersections with Almy and Courtland streets. Under the provisions of the zoning ordinance then in effect, this property was in a zoning district classified as Residence R-4, usually referred to as a multiple dwelling district. It is not disputed that respondent, who is an undertaker, purchased the property for use as a funeral home, which is not a permitted use in a multiple dwelling district.

All of the complainants are the owners of properties located on Broadway between Almy and Courtland streets. Two of these properties adjoin respondent's property on the north side of Broadway while the other two are located on the south side of that street. These properties until the enactment of the amendment under consideration were all classified as R-4 or for multiple dwelling use.

After respondent purchased this property in 1956, he attempted unsuccessfully to obtain a zoning change that would enable him to use the house as a funeral home. We are concerned, however, only with the instant suit for injunctive relief which complainants brought after the city council of the city of Providence had amended the zoning ordinance of that city so as to include in a C-2 classification, or a general commercial zone, all the properties abutting on either side of Broadway between Almy and Courtland streets. A total of twenty lots was included in this rezoning, and the action of the council followed the petitioning therefor by respondent. It is not disputed that the conduct of a funeral home is a permitted use in a C-2 district.

The complainants contend that the city council acted in excess of the amendatory power conferred upon it by the pertinent provisions of the enabling act when it enacted the amendment to the zoning ordinance here under consideration and that therefore its action was arbitrary and illegal. However, the trial justice found, in substance, that the change in zoning which resulted from the amendment was consistent with the comprehensive plan for zoning in the city, was in the public interest, and therefore was within the amendatory authority conferred upon the city council by statute. The complainants argue that it was error for the trial justice to make these findings, contending that they were against the law, the evidence, and the weight thereof.

Because the case is presented to us in this posture, it falls within the purview of our well-established rule that the findings and the decision of a trial justice sitting as a court of equity will not be disturbed by this court on appeal unless they are clearly wrong. Arlia v. Pate, 85 R.I. 388, 132 A.2d 91; Gilbert v. Marquis, 61 R.I. 302, 200 A. 959. We are unable to perceive in the circumstances, however, that the trial justice misconstrued the law applicable here or that he overlooked or misconceived any material evidence and are therefore unable to say that his findings were clearly wrong.

A substantial amount of evidence was adduced during the trial below. Among the witnesses testifying were the owners of some of the properties included within the scope of the amendment as well as realtors who were familiar with the area and the properties located therein. The testimony adduced through these witnesses was conflicting as to the character of the area involved, the particular uses that predominate therein, the nature of uses permitted in surrounding areas, the particular uses for which the rezoned properties are suitable, and the effect of the amendment on the value of such properties.

Two of the witnesses were eminently qualified experts in the filed of zoning. Much of the testimony of these men was factual in character based upon their observations, but they testified also as to their opinions based on those observations.

Frank H. Malley, who identified himself as the planning director of the city of Providence, testified on behalf of complainants. He stated it to be his opinion that the zoning changes which resulted from the instant amendment were not in accord with the comprehensive plan of zoning in effect in the city. He testified further that there had been a substantial revision of the zoning ordinance in 1951. In that respect he testified that prior to that revision, all properties abutting on arterial highways within the city were zoned for commercial uses. After the revision of 1951, according to this witness, the properties abutting along such arterial highways within the city were zoned for commercial uses 'in large measure.'

The other expert witness was Flavel Shurtleff, who testified on behalf of respondents. He stated that he had made extensive personal observations in the area and that in his opinion the area was distinctly commercial in character and that rezoning it in 1951 as a residential area was 'wrong zoning.' He further testified that all of the properties abutting on Broadway excepting those in a small area in the vicinity of St. Mary's Church properly should be zoned for commercial use for the reason that Broadway is a major arterial highway, heavily traveled, and is an appropriate subject for commercial zoning. He further testified, and we consider this testimony to be significant, that from an examination of the 1951 zoning map it appeared that properties abutting the four major arterial highways extending westward from the center of the city are zoned for commercial uses excepting the portion of Broadway under consideration here.

The trial justice in the decree denying and dismissing the bill of complaint made two specific findings. He found, first, that the enactment of the amendment by the city council constituted 'a proper exercise of the police power of the City, and is consistent with, and in harmony with the comprehensive plan of zoning in Providence, and is in the best interests of the public welfare' and, second, that 'The action of the City Council does not constitute spot zoning.' Implicit in these findings is the conclusion of the trial justice that the city council in enacting the instant amendment did not act in excess of its authority to amend a zoning ordinance. We are unable to perceive error in such finding of the trial justice and are of the opinion that complainants' contention that the trial justice erred in so finding is without merit.

It is well settled that a local legislature has no authority to enact zoning regulations or to amend existing zoning regulations other than that conferred upon it in the pertinent provisions of the enabling legislation. R. I. Home Builders, Inc. v. Budlong Rose Co., 77 R.I. 147, 74 A.2d 237. Local legislatures have been expressly granted the power to regulate and restrict the uses to which land may be put within their territorial jurisdiction in G.L.1956, § 45-24-1. Section 45-24-3 of the enabling act sets out certain objectives for which such regulations may be enacted, and these clearly constitute norms or standards limiting the exercise of the power granted in § 45-24-1. The provisions of § 45-24-3 in substance provide that the regulations 'shall be made in accordance with a comprehensive plan' and that they shall be designed to promote the accomplishment of the objectives enumerated therein, all of which relate generally to the public safety, health, and welfare. Further provision is made in that section that the regulations shall be made 'with reasonable consideration' to the suitability of the land regulated for particular purposes, the conservation of the value of buildings, and the encouragement of the appropriate use of land.

We are of the opinion that the requirement set out in § 45-24-3 that the zoning regulations conform to a comprehensive plan is mandatory and that strict compliance therewith is required of a local legislature when it enacts a zoning ordinance. We construe such provisions in enabling acts so as to give effect to the purpose for which they were enacted. Buckminster v. Zoning Board of Review, 69 R.I. 396, 33 A.2d 199; Lynch v. Borough of Hillsdale, 136 N.J.L. 129, 54 A.2d 723. 'The reason for the statutory requirement of a 'comprehensive plan' is to avoid an arbitrary, unreasonable or capricious exercise of the zoning power, resulting in haphazard or piecemeal zoning.' Bartlett v. Township of Middletown, 51 N.J.Super. 239, 268, 143 A.2d 778, 794. Essentially then such provision is designed to reduce the impact of zoning restrictions on the right of an owner to make a free use of his land by barring any radical or impulsive exercise of the power conferred, Putney v. Abington Township, 176 Pa.Super. 463, 108 A.2d 134, and that end will be attained only when the local legislature is held to strict compliance with the pertinent statutory provision.

The remainder of the provisions set out in § 45-24-3 establishes the objectives that are to be accomplished through an exercise of the...