Delbonis Sand & Gravel v. Town of Richmond

• Decision Date: 16 November 2006
• Docket Number: No. 2005-89-Appeal.,2005-89-Appeal.
• Citation: 909 A.2d 922
• Parties: DELBONIS SAND & GRAVEL CO. et al. v. TOWN OF RICHMOND.
• Court: Rhode Island Supreme Court

Page 922

909 A.2d 922

DELBONIS SAND & GRAVEL CO. et al. v. TOWN OF RICHMOND.

No. 2005-89-Appeal.

Supreme Court of Rhode Island.

November 16, 2006.

Kelly M. Fracassa, Westerly, for Plaintiffs.

Michael L. Cozzolino, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice FLAHERTY, for the Court.

The plaintiffs, Delbonis Sand & Gravel Co. and Frank Delbonis (Delbonis or plaintiffs), appeal the judgment of the Superior Court for Washington County in favor of the defendant, the Town of Richmond (the town or defendant). The plaintiffs had sought declaratory judgment and the issuance of a writ of mandamus with respect to the merger by the town's tax assessor of eleven two-acre lots into four four-acre lots and a single six-acre lot under the terms of an ordinance providing for merger of substandard lots in common ownership.¹ Delbonis asked the Superior Court to declare that the town's actions were illegal and to order the town to redraw the tax assessor's plat with the eleven two-acre lots. A justice of the Superior Court found in favor of defendant, and plaintiffs timely appealed. Before this Court, plaintiffs argue that the Superior Court should have extended our previous holdings with respect to equitable rights in issuing building permits to the subdivision approved in this case. For the reasons stated herein, we affirm the judgment of the Superior Court.

I Facts and Travel

The plaintiffs are the owners of numerous acres of land running along both the east and west sides of Beaver River Road in the Town of Richmond. Between 1986 and 1991, plaintiffs navigated their way through the town's subdivision process to create a development called "Delbonis Estates." The plan called for the land on the east side of Beaver River Road to be divided into eleven two-acre lots.² Final approval of the subdivision was granted by the town's planning commission on Feb. 23, 1990, and the lots were recorded in the town's land evidence records.³ Both parties agree that, at all times during the subdivision approval process, up to and including the date of final approval, the town's zoning ordinance called for a minimum lot size of two acres.⁴ It is significant that since the subdivision of "Delbonis Estates" was approved, plaintiffs have continued to hold title to the real estate, no structures have been built on any of the lots, and plaintiffs have not applied for any building permits.

Furthermore, a provision of the town's subdivision ordinance required plaintiffs to convey land to the town to be dedicated for municipal use. The amount of land that had to be conveyed to the town was determined by a formula set forth by ordinance. See Richmond, R.I. Mun.Code § 17.20.150. Here, as a condition of subdivision approval, plaintiffs were required to convey 19.34 acres to the town for "Town of Richmond Recreational Purposes" and 1.25 acres for "Town Purposes."

Effective September 1990, the town amended its zoning ordinance, increasing the minimum lot size in the area from two acres to three acres. The plaintiffs did not appeal or otherwise challenge the amendment. Because other ordinances required the merger of substandard lots that were contiguous and under the same ownership, the tax assessor redrew the lot lines such that eight of the eleven two-acre lots on the east side of Beaver River Road were merged into four four-acre lots. The remaining three two-acre lots were merged into one six-acre lot. See Richmond, R.I. Mun.Code §§ 18.20.030 & 18.20.040. These actions brought the subdivided lots in "Delbonis Estates" into conformity with the new three-acre minimum lot size.

It was not until 1999 that plaintiffs brought an action in the Superior Court seeking a declaratory judgment that the actions of the town were illegal, as well as a writ of mandamus to compel the assessor to redraw the map to reflect the eleven two-acre lots. The linchpin of plaintiffs' argument was that they had acquired a permanent right to the original subdivision under the zoning ordinances in place at the time the town gave its approval for "Delbonis Estates." The trial justice did not agree, and he entered judgment for the town on July 6, 2004. He ruled that the town merged the lots legally under the applicable ordinances and that no right had accrued to plaintiffs to continue applying the standards of the pre-amendment zoning ordinances to the subdivision.

II Standard of Review

This case was tried upon a set of stipulated facts. Review of the trial justice's decision in these cases is "narrowly defined." Hagenberg v. Avedisian, 879 A.2d 436, 441 (R.I.2005). Consequently, the trial court does not play a fact-finding role, but is limited to "applying the law to the agreed-upon facts." Id. "If the trial justice is called upon to resolve mixed questions of law and fact, we accord those findings deference." Id. (citing Casco Indemnity Co. v. O'Connor, 755 A.2d 779, 782 (R.I.2000)). However, "questions of law and statutory interpretation are reviewed de novo by this Court." Id. (quoting Webster v. Perrotta, 774 A.2d 68, 75 (R.I.2001)).

III Analysis

Delbonis argues that the trial justice erred when he did not extend our holding in Shalvey v. Zoning Board of Review of Warwick, 99 R.I. 692, 210 A.2d 589 (1965), to the subdivision approved by the town. In Shalvey, we held that a landowner who received a building permit for a legal use that is later rendered illegal by amendment to the zoning ordinance possessed an equitable right to enjoy that use if, and only if, "the permittee in reliance upon the permit has made substantial investment or expenditure." Id. at 699, 210 A.2d at 593 (quoting Morris v. Postma, 41 N.J. 354, 196 A.2d 792, 797 (1964)). The plaintiffs urge that the lots should not have been merged by the tax assessor because by conveying the required amount of land to the town he acquired an equitable right to maintain the subdivision under the zoning ordinance as it existed at the time that it was approved.

The town counters with two arguments. First, the town contends that plaintiffs are estopped from arguing that the land dedication satisfies the requirement of "substantial investment or expenditure" because that argument was not raised at trial. Second, it maintains that the merger provision was properly applied because, even though plaintiffs had a right to develop "Delbonis Estates" under the two-acre minimum lot ordinance when that subdivision plan was approved, the land dedication was not a substantial expenditure made in reliance on the approval. Therefore, the town says, that right does not continue into perpetuity, nor does it immunize the landowner from future changes to the municipal zoning code. The town argues that the trial justice was correct when he determined that plaintiffs' failure to begin any construction on the land, or even to pursue any building permits for any of the lots, obligated the town to merge the lots to bring them into compliance with the new three-acre minimum lot-size standard. Before we review the merits of the trial justice's decision, we first will address whether plaintiffs properly preserved their argument for appeal.

A Propriety of Plaintiffs' Argument

"Under this Court's well established `raise or waive' rule, an issue that has not been raised and articulated previously at trial is not properly preserved for appellate review." State v. Snell, 892 A.2d 108, 123 (R.I.2006) (quoting State v. Gomez, 848 A.2d 221, 237 (R.I.2004)). The defendant contends that plaintiffs did not assert in the trial court that the donation of land to the town was an obligation or expenditure that they incurred in reliance on the previous zoning ordinance. We do not agree.

Paragraph five of the stipulated facts states, in pertinent part: "As part of the approval process, DelBonis [sic] Sand and Gravel dedicated and deeded 19.34 acres to the Town of Richmond Recreational Purposes and 1.25 acres of land along the easterly portion of Beaver River Road Town Purposes [sic]." Furthermore, in its memorandum of law to the trial justice, Delbonis expressly asserted that the dedication of land represents a "substantial obligation[ ] in good-faith reliance upon the previous ordinance." Thus, in our opinion, plaintiffs sufficiently raised and argued this issue to the trial court. See Pleasant Management, LLC v. Carrasco, 870 A.2d 443, 446 n. 4 (R.I.2005). Therefore, we turn our attention to the merits of plaintiffs' appeal.

B Equitable Rights based on Prior Zoning

We have held that when a municipality amends a zoning ordinance in a manner such that a once permitted use becomes illegal, the amendment can result in the revocation of permits that were issued under the previous ordinance. A. Ferland & Sons, Inc. v. Zoning Board of Review of East Providence, 105 R.I. 275, 278, 251 A.2d 536, 538 (1969). However, we also have held that when the permittee has incurred substantial obligations or made significant expenditures in reliance on the permit, or, if the actions of the permittee in reliance on the permit were such that equity favored his interest to that of the municipality, then he retained an equitable right to develop the subject land as if it were governed by the previous zoning law. A. Ferland & Sons, Inc., 105 R.I. at 279, 251 A.2d at 538; Tantimonaco v. Zoning Board of Review of Johnston, 102 R.I. 594, 597, 232 A.2d 385, 387 (1967); Shalvey, 99 R.I. at 699, 210 A.2d at 593. A brief discussion of the cases that developed that body of law is warranted here.

In Shalvey, 99 R.I. at 693, 210 A.2d at 590-91, a developer sought and received building permits to construct multifamily homes—a permitted use—on four lots in Warwick. Some objectors appealed the issuance of the permits to the zoning board of review, and during the pendency of the appeal, the city council amended the zoning ordinance to allow only single-family homes in the area in question. Id. at 694-95, 210 A.2d at 591. The...