Consolidated Realty Corp. v. Town Council of Town of North Providence

• Decision Date: 01 August 1986
• Citation: 513 A.2d 1
• Court: Rhode Island Supreme Court
• Parties: CONSOLIDATED REALTY CORPORATION v. TOWN COUNCIL OF the TOWN OF NORTH PROVIDENCE et al. 85-102-M.P., 85-104-Appeal.

Page 1

513 A.2d 1

CONSOLIDATED REALTY CORPORATION v. TOWN COUNCIL OF the TOWN OF NORTH PROVIDENCE et al.

85-102-M.P., 85-104-Appeal.

Supreme Court of Rhode Island.

Aug. 1, 1986.

Frank J. Williams, Providence, for plaintiff.

Joseph V. Cavanagh, Jr. (Edwards & Angell), Providence, Robert S. Ciresi, Town Sol. for Town of North Providence, for defendant.

OPINION

WEISBERGER, Justice.

This petition for certiorari was brought to review a Superior Court judgment ordering the North Providence Town Council (town council) to amend its zoning ordinance. The town council denied the petition of Consolidated Realty Corporation (Consolidated) to amend the town's zoning ordinance. Thereafter, Consolidated filed a complaint in the Superior Court, and the Superior Court reversed the decision of the town council and ordered enactment of the amendment. The petitioners filed a timely appeal and petitioned this court for a writ of certiorari. Without passing upon the validity of the appeal, we issued the writ and on October 29, 1985, entered an order consolidating the two. For reasons that will be set forth in the opinion, the appeal is hereby dismissed pro forma. We shall proceed to review the issues raised by the petition for certiorari.

Consolidated owns an irregularly shaped 84,500-square-foot lot on Smith Street in North Providence. In 1981 Consolidated petitioned the town council to amend the town's zoning ordinance so as to rezone its lot from limited residence to general residence to permit the construction of a multifamily dwelling for the elderly.

A public hearing on Consolidated's application was held before the town council on September 30, 1981. Consolidated presented five expert witnesses who testified in the fields of architecture, landscape design, civil engineering, traffic safety, and real estate appraisal and valuation. Numerous local residents testified against the proposed amendment, although no expert testimony was presented in opposition to the proposed amendment. The town council voted unanimously to deny the amendment.

On October 20, 1981, Consolidated filed a complaint in the Superior Court against the town council seeking review of the town council's decision. The town council filed a timely answer, and a hearing was held before a Superior Court justice on July 15, 1983. At the hearing, the parties stipulated that the transcript of the town council proceedings could be admitted as a full exhibit. Consolidated presented one additional witness, Emilio A. Cerroni, the North Providence building inspector and zoning officer. The town council then challenged the jurisdiction of the Superior Court to review on appeal the town council's decision not to amend the zoning ordinance. The trial justice reserved decision on Consolidated's complaint and on the town council's motion to dismiss pending receipt of briefs from the parties.

On August 10, 1983, a group of interested property owners moved to intervene as party defendants. The trial justice granted the motion on October 26, 1983. Thereafter, the intervenors joined in the town council's motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Superior Court Rules of Civil Procedure.

On February 5, 1985, the trial justice issued a decision denying the motion to dismiss and granting Consolidated's request that the town council's decision be reversed. The trial justice found that the Superior Court, through its equitable powers, had jurisdiction to review the town council's decision and, relying upon the facts established in the record, further found that the town council's decision was arbitrary and capricious. In accordance with the trial justice's written decision, an order was entered on February 8, 1985, from which petitioners filed a timely appeal and petitioned for a writ of certiorari. The petition for issuance of a writ of certiorari was granted by this court on May 16, 1985.

This case raises an issue of first impression before this court, specifically, whether the Superior Court has jurisdiction to review a town council's refusal to amend a local zoning ordinance.

The Legislature has granted to municipalities the power to amend or repeal their zoning ordinances through action by either a city or town council. G.L.1956 (1980 Reenactment) § 45-24-5. ¹ Actions taken by a city or town council pursuant to § 45-24-5 are considered purely legislative in character, Mesolella v. City of Providence, 439 A.2d 1370 (R.I.1982); Alianiello v. Town Council of East Providence, 83 R.I. 395, 117 A.2d 233 (1955); Rhode Island Home Builders, Inc. v. Hunt, 74 R.I. 255, 60 A.2d 496 (1948), and thus enjoy an initial presumption of validity and are not generally susceptible of judicial review unless violative of the city's entire comprehensive zoning plan. Camara v. City of Warwick, 116 R.I. 395, 358 A.2d 23 (1976). The instant case is distinguishable from the cited cases in that we are now confronted with a situation in which the challenge is to the Superior Court's jurisdiction to entertain an appeal from a town council's refusal to enact an amendment rather than a challenge to an amendment after passage. An examination of chapter 24 of title 45 reveals that the Legislature has made no provision for the courts to review, either by writ of certiorari or by appeal, the decision of a town or city council to deny an amendment to its zoning ordinance.

Consolidated concedes that when a local town council acts on a petition to amend a zoning ordinance, it is exercising a legislative function conferred upon it by chapter 24 of title 45. However, Consolidated argues that although it is exercising a legislative function, review of a city council's enactment or refusal to enact an amendment to a zoning ordinance is available through ordinary proceedings in equity when a party's rights are injured or substantially threatened with injury as a result of such legislative decision. In support of this proposition, Consolidated cites Rhode Island Home Builders, Inc., supra, and urges this court to ignore the distinction between equitable review of an enacted amendment, as in Rhode Island Home Builders, Inc., and review of a decision not to enact an amendment, as in the instant case. Upon review of our prior case law, we have found no basis for disregarding this important distinction.

There is no doubt that the Superior Court may invoke its equity jurisdiction when an attack centers on the legality of an enacted amendment to a zoning ordinance. See Sweetman v. Town of Cumberland, 117 R.I. 134, 364 A.2d 1277 (1976); Camara v. City of Warwick, 116 R.I. 395, 358 A.2d 23 (1976). In fact, the direct suit in equity is a long-established remedy in this jurisdiction for those who are injured or substantially threatened with injury by the enforcement of an allegedly illegal amendment to a zoning ordinance. Mesolella, 439 A.2d at 1373 n. 1. However, the party challenging the amendment has a difficult burden to overcome. A court will not weigh the policy or wisdom underlying the enactment of an amendment but will strike down an amendment only if it bears no reasonable relationship to the public health, safety, or welfare and is not in keeping with a comprehensive plan or is an arbitrary or discriminatory exercise of power. Sweetman, 117 R.I. at 145-47, 364 A.2d at 1285-86.

More important in relation to the case at bar, equity's jurisdiction to intervene where the attack centers on the legality of an amendment to a zoning ordinance does not by necessity imply the same jurisdiction where the challenge is to the legality of a town council's refusal to enact an amendment. Consolidated's reliance on our decision in Kilduff Brothers Builders, Inc. v. Town Council of Johnston, 447 A.2d 1142 (R.I.1982), in support of that proposition is misplaced. In Kilduff, the plaintiffs' attempt to have the town's zoning ordinance amended was denied. The town council's refusal to enact the proposed amendment was appealed to the Superior Court, where the decision to deny the amendment was reversed. However, in invoking jurisdiction, the trial justice erroneously relied upon § 45-24-20, the statute that supplies the Superior Court with jurisdiction to review on appeal the decision of municipal zoning boards. This court granted certiorari, and in a per curiam decision "remanded to the Superior Court [and advised the litigants to] be prepared to enlighten the trial justice as to whether the court's equitable powers should be invoked in an instance where a municipal legislature, in the exercise of its legislative prerogative, has decided not to amend the town's...