Frank Ansuini, Inc. v. City of Cranston

• Decision Date: 30 April 1970
• Docket Number: No. 746-A,746-A
• Parties: FRANK ANSUINI, INC. v. CITY OF CRANSTON. ppeal.
• Court: Rhode Island Supreme Court

Page 910

264 A.2d 910

107 R.I. 63

FRANK ANSUINI, INC. v. CITY OF CRANSTON.

No. 746-Appeal.

Supreme Court of Rhode Island.

April 30, 1970.

Aram A. Arabian, Providence, for plaintiff.

Peter Palombo, Jr., City Solicitor, for defendant.

OPINION

POWERS, Justice.

This is a civil complaint which partakes of a petition for declaratory judgment and was heard by a justice of the Superior Court on the pleadings, exhibits and on agreed statement of facts. It seeks to strike down, as being ultra vires of the police power, a regulation of the City of Cranston's Planning Commission requiring, as a condition precedent to final plat approval, the voluntary donation for recreation purposes of at least seven per cent of the land to be divided.

From a Superior Court judgment for plaintiff, defendant city appealed to this court.

General Laws 1956, § 45-23-2 provides:

'Power to Authorize Rules by Commission.-For the purpose of promoting the general health, safety, morals or general welfare, the city council of any city and the town council of any town shall have power in accordance with the provisions of this chapter within the limits of such city or town by ordinance to authorize and empower the plan commission to adopt, modify and amend rules and regulations governing and restricting the platting or other subdivision of land in such city or town, and to control the subdivision of land pursuant to such rules and regulations.'

Pursuant thereto, the City of Cranston adopted an ordinance creating a planning commission which, in turn, adopted rules and regulations as authorized by sections 3 and 6 of chapter 23 of title 45.

Section 45-23-3 provides:

'Purpose of rules.-Such rules and regulations shall be designed to make adequate provisions for traffic; to lessen traffic accidents; to promote safety from fire and other dangers; to provide adequate light and air; to prevent over-crowding of land; to prevent the development of unsanitary areas for housing purposes; to secure a well-articulated street and highway system; to promote a co-ordinated development of unbuilt areas; to secure an appropriate allotment of land area in new developments for all the requirements of community life; to conserve natural beauty and other natural resources; to conform to any master plan which may have been adopted; to furnish guidance for the wise and efficient expenditure of funds for public works; and to facilitate the adequate, efficient and economic provision of transportation, water supply, sewerage, recreation and other public utilities and requisites.'

Section 45-23-6 provides:

'Regulations as to physical requirements of sub-divisions-Completion Bonds.-Such rules and regulations may further provide among other things for the harmonious development of the city or town; for the co-ordination of streets within subdivisions with other existing or planned streets and with any master plan of said city or town which may have been adopted; for the width of streets, limitations of street grades, and of street intersection angles; the relation of streets to topography and the prevention of the duplication of street names; for the minimum width, depth and area of lots; for adequate open spaces for traffic, recreation, light, and air; and for a distribution of population and traffic which will tend to create conditions favorable to health, safety, convenience, and prosperity. Such regulations may include requirements as to the extent to which and the manner in which streets shall be graded and improved and water, sewer, and other utility mains, piping, connections, or other facilities shall be installed, where reasonable and possible, as a condition precedent to the approval of the plat. Such regulations may provide that, in lieu of the completion of such work and installations previous to the final approval of a plat, the commission may accept a bond, in an amount and with surety and conditions satisfactory to it, providing for and securing to the city the actual construction and installation of such improvements and utilities within a period specified by the commission and expressed in the bond; and the city is hereby granted the power to enforce such bonds by all appropriate legal and equitable remedies.

In the adoption of rules and regulations, and in the consideration of plats submitted thereunder, the plan commission shall take into consideration the prospective character of the development whether residence, business or industrial, and in the case of residence developments, whether the same are for seasonal use or for year round occupation.'

On December 27, 1965, purporting to act on the authority of these sections, the Cranston Planning Commission, with the approval of the city council, adopted a regulation designated as section III(H) of the commission's rules and regulations. It provides:

'H. Public Open Spaces

Developers of residential plats shall deed at least seven (7%) per cent of the land area of such plat to the city to be used for recreation purposes. Such land shall be in addition to the land deeded for highway purposes. Such land shall be chosen on the basis of a preliminary site plan showing the entire area of land to be subdivided at present or in the future. Such land shall be chosen so as to be adaptable for such purposes, must be in a desirable location and must be acceptable to the Plan Commission. Due regard shall be shown for all natural features such as large trees, natural groves, water courses, scenic points, and similar community assets which will add attractiveness to the community if preserved.'

The agreed statement of facts establishes that plaintiff is the owner of a tract of land in Cranston, for the subdivision of which, it made application to the city planning commission. ¹ Said commission, however, withheld acceptance of the proposed final plat because of plaintiff's refusal to voluntarily donate a portion of the land for recreation purposes, and the instant litigation ensued.

In our view, the ultimate issue presented is the validity of section III(H) of said regulations. So postured, this raises four questions.

The first such question is whether the General Assembly may require, as a condition precedent to the subdivision of land, a voluntary donation of a portion therefor for recreation purposes.

Secondly, if it is within the police power of the General Assembly to impose such a requirement, may it validly delegate such power to the several cities and towns?

If so, the question which then arises is whether the language employed by the General Assembly in sections 3 and 6 of chapter 23 of title 45, pursuant to which section III(H) of the Cranston Planning Commission's rules and regulations was adopted, so broad as to warrant a municipal planning commission to adopt a regulation making a voluntary donation a condition precedent to the approval of a proposed plat.

If these three questions can be answered in the affirmative, there then arises the narrow but determinative question, namely: Is the 'at least 7%' donation requirement of section III(H) of the rules and regulations of the Cranston Planning Commission within or in excess of the legislative delegation of power?

Since we think that the first three questions call for an affirmative answer, we turn to a consideration of all four questions.

It is almost universally held that it is within the police power of the state legislature to require such a voluntary donation. Ayres v. City Council of City of Los Angeles, 34 Cal.2d 31, 207 P.2d 1; Pioneer Trust & Savings Bank v. Village of Mount Prospect, 22 Ill.2d 375, 176 N.E.2d 799; Jordan v. Village of Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442; Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P.2d 182; Jenad, Inc. v. Village of Scarsdale, 18 N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673; Aunt Hack Ridge Estates, Inc. v. Planning Commission of Town of Danbury, 27 Conn.Sup. 74, 230 A.2d 45. The basis for the unanimity is, in essence, that the natural result of subdivision, as shown by experience, is an increased need in the community for recreation areas, and to require a developer to provide and donate that which, except for his proposed subdivision, would not be required is a valid exercise of the police power and not a taking without just compensation.

The authorities are not in harmony, however, regarding the manner in which the donation requirement is applied. In Pioneer, supra, citing Ayres, supra, the rule is stated to be that a developer may be required to donate only such portion of the land to be divided as may be needed for such public uses as will result from the activities specifically and uniquely attributable to him.

On the other hand, it has been held that the legislature may require a stated percentage donation in which case the burden is on each would-be developer to show that the stated percentage is unreasonable as to him. Billings Properties, Inc. v. Yellow-stone County, supra; Jordan v. Village of Menomonee Falls, supra; Jenad, Inc. v. Village of Scarsdale, supra; Aunt Hack Ridge Estates, Inc. v. Planning Commission of Town of Danbury, supra.

It is on these later cited cases that defendant seeks support for the validity of the challenged regulation. We are of the opinion, however, that the rule as enunciated in Pioneer is the more reasonable and should apply in this jurisdiction. It seems obvious to us that a fixed percentage requirement will inevitably create inequities, which...