Federal Bldg. & Development Corp. v. Town of Jamestown

• Decision Date: 03 December 1973
• Docket Number: No. 1788-A,1788-A
• Citation: 112 R.I. 478,312 A.2d 586
• Court: Rhode Island Supreme Court
• Parties: FEDERAL BUILDING & DEVELOPMENT CORP. of the State of Rhode Island v. TOWN OF JAMESTOWN et al. ppeal.

Page 586

312 A.2d 586

112 R.I. 478

FEDERAL BUILDING & DEVELOPMENT CORP. of the State of Rhode Island v. TOWN OF JAMESTOWN et al.

No. 1788-Appeal.

Supreme Court of Rhode Island.

Dec. 3, 1973.

George C. Berk, Providence, Caidin, Kalman, Hartman & Sampson, Newton Kalman, Beverly Hills, Cal., for plaintiff.

Letts, Quinn & Licht, Jerome B. Spunt, Robert N. Huseby, Providence, Daniel J. Murray, Town Sol., for defendants.

OPINION

ROBERTS, Chief Justice.

This civil action was brought to challenge the validity of the enactment of certain amendments to the zoning ordinance of the town of Jamestown adopted in 1970 by the defendant town council. The matter was heard by a justice of the Superior Court sitting without a jury, who found that the 1970 amendment of the zoning ordinance of the town of Jamestown had been validly enacted by the town council and denied the plaintiff, Federal Building & Development Corp. of the State of Rhode Island (Federal), the relief sought. In this court the plaintiff is prosecuting an appeal from that decision.

Federal is the owner of a substantial tract of land, acquired by it in 1947, located on the west shore of Conanicut Island (Jamestown) at the easterly terminus of the Jamestown Bridge. Federal proceeded to develop the land, and recorded plats disclose that it consisted in 1947 of 1,912 building lots. The development is traversed from west to east by Eldred Avenue, a heavily traveled thoroughfare linking the easterly terminus of the Jamestown Bridge with the westerly terminus of the Newport Bridge. It appears that 49 of the platted lots front on Narragansett Bay and that a substantial number abut on Eldred Avenue. As originally platted, the area of most of the lots was 7,200 square feet. Under the provisions of a zoning ordinance enacted in 1962, ¹ most of the land in the Jamestown Shores development was zoned as residential, excepting some of the lots abutting on Eldred Avenue, which were zoned for business. That ordinance imposed no restriction as to the size of the lots zoned as residential. However, in 1967 the 1962 ordinance was amended, and under the terms of that amendment the residential lots on the development were zoned R-8 (8,000 square feet).

Following the adoption of the 1967 amendment, a civil action was instituted in Superior Court against the town of Jamestown, seeking to have the 1967 amendment declared null and void. On April 21, 1969, a justice of the Superior Court in that case granted a motion for summary judgment, holding that the 'zoning amendment purportedly enacted by the Jamestown Town Council on January 9, 1967 was invalid.' We affirmed in DeLucia v. Town of Jamestown, 107 R.I. 179, 265 A.2d 636 (1970). The record further discloses that in 1968, while the DeLucia matter was pending in the Superior Court, the town council further amended the zoning ordinance, as a result of which lot-size restrictions on the residential property in the Jamestown Shores development were changed from R-8 to R-20 (20,000 square feet).

In 1969, after the decision of the Superior Court in the DeLucia case invalidating the 1967 amendment, the town prepared a map entitled 'Zoning Map 1969 Jamestown, R.I.' for use at a public hearing on the question of amending the zoning ordinance in September of that year. The September hearing was postponed, but a hearing was subsequently held on February 16, 1970. Notice of the public hearing was advertised on January 23 and 30 and February 6 and 13, 1970. This general amendment, which zoned all property within Jamestown Shores R-20, was adopted by the town council on February 24, 1970.

The instant action was first brought in March of 1967 and challenged the validity of the 1967 amendment to the ordinance of 1962. In May of 1968 plaintiff filed a supplemental complaint, alleging that the 1968 amendment was also invalid. Finally, in July of 1970 plaintiff filed an amended complaint, alleging that the amendments of 1967 and 1968 and the general amendment of 1970 were invalid. However, in the course of the trial below, Federal pursued only its challenge to the validity of the 1970 general amendment.

We direct our attention, first, to Federal's contention that the 1970 ordinance is void and of no effect because the town failed to give adequate notice of a public hearing prior to the enactment of said ordinance as is required by G.L.1956 (1970 Reenactment) § 45-24-4. It appears to be conceded that a notice of the proposed hearing was published in compliance with the provisions of § 45-24-4 prescribing the time, place, and manner of the publication of such notice. The notice published indicated that there would be a '(p)ublic hearing upon the question of the enactment of a proposed general amendment to the Zoning Ordinance by the Town Council of the Town of Jamestown, Rhode Island.' The advertisement further indicated that copies of the 'proposed general amendment' were on file in the office of the town clerk. ² The thrust of this contention is that the notice, as published, was insufficient as a matter of law under § 45-24-4, as amended, ³ in that it did not reasonably inform the public of the proposed zoning changes that would be accomplished by an enactment of the ordinance, nor of the existing zoning classifications that would be directly affected thereby.

The trial justice held that the notice was sufficient because there was '(n)o evidence * * * presented which convinced (him) that the advertisement for the 1970 amendment was vague or insufficient to appraise interested parties of the action which the (Town) Council proposed and did take with respect to amending the zoning ordinance.' Federal argues that the trial justice erred in so ruling, contending that the question of whether or not notice under § 45-24-4 is sufficient constitutes a pure issue of law and not of fact. This court has so held. DeLucia v. Town of Jamestown, supra.

We are unaware of any decision of this court in which we considered the adequacy of the notice required by § 45-24-4. The section requires the giving of constructive notice to the public in the form of a publication in a newspaper of general circulation in the area where it is proposed that the local legislature amend the terms of the general ordinance. We did, in R.I. Home Builders, Inc. v. Budlong Rose Co., 77 R.I. 147, 74 A.2d 237 (1950), construe the meaning of the phrase prescribing that such notice be thus advertised 'at least once each week for three (3) successive weeks prior to the date of such hearing * * *.' ⁴

We have, however, on several occasions passed upon the question of what constitutes adequate notice of the pendency of a hearing when a petitioner prosecutes an appeal to a board of review pursuant to the provisions of G.L.1956 (1970 Reenactment) § 45-24-18. ⁵ Section 45-24-18 provides that where such an appeal is taken to a board of review, it must give public notice as well as due notice to the parties in interest.

Section 45-24-16 permits any person aggrieved by a decision of a municipal administrative officer to prosecute an appeal to the local board of review. We held in Mello v. Board of Review, 94 R.I. 43, 177 A.2d 533 (1962), that the question of a landowner's entitlement to a variance can be raised before a board of review by way of an appeal from the denial by a building inspector of an application for some sort of construction permit. We noted also the long-standing practice of landowners to by-pass the building inspector and make an original application to a board of review when it appeared that such officer would be compelled to deny the application for a construction permit. We went on to say at 48, 177 A.2d at 535: 'Because of this practice, which is of long standing, we must construe an application to a board for a variance to be in the nature of an 'appeal' within the meaning of that term as it is used in subparagraph c. of § 45-24-19 and that such an application is also in the nature of an 'appeal' as that term is used in § 45-24-18, which requires the giving of notice when hearings are to be held on appeals to a board of review.'

We held in Mello that the notice provision of § 45-24-18 mandates strict compliance, is jurisdictional, and unless there has been strict compliance therewith, jurisdiction is not acquired. In that case we said at 49-50, 177 A.2d at 536: 'However, to be sufficient,...