L.A. Ray Realty v. Town Council of Town of Cumberland

• Decision Date: 06 February 1992
• Docket Number: No. 90-328-A,90-328-A
• Citation: 603 A.2d 311
• Parties: L.A. RAY REALTY et al. v. TOWN COUNCIL OF the TOWN OF CUMBERLAND et al.
• Court: Rhode Island Supreme Court

Page 311

603 A.2d 311

60 USLW 2516

L.A. RAY REALTY et al. v. TOWN COUNCIL OF the TOWN OF CUMBERLAND et al.

No. 90-328-A.

Supreme Court of Rhode Island.

Feb. 6, 1992.

Michael Kelly, John Webster, Adler, Pollock & Sheehan, Providence, for plaintiffs.

Richard E. Kirby, Woonsocket, for defendants.

OPINION

WEISBERGER, Justice.

This case comes before us on the plaintiffs' appeal from a judgment of dismissal of their complaint entered by the Superior Court and also from the denial of their motion for summary judgment. We reverse. The facts of the case are set forth in a stipulation to which the parties have agreed. Said stipulation of facts is set forth below.

"1. Appellants in the instant appeal include L.A. Ray Realty, Macklands Realty, Inc., Leo C. Beauregard & Sons, Inc., Savage Bros., Inc., and Eva Schofield; all of whom are land owners in the Town of Cumberland, Rhode Island.

"2. Appellants' properties are zoned Agricultural-A which designation permits the construction of single-family residential structures.

"3. By virtue of R.I. Gen. Laws § 45-23-2, et seq., the Planning Board of the Town of Cumberland has the sole and exclusive power to control, promulgate, adopt or authorize the adoption of rules and regulations concerning the subdivision of land in the Town of Cumberland.

"4. Pursuant to R.I. Gen. Laws § 45-23-2, et seq., the Planning Board, in September, 1987, adopted rules and regulations that govern and restrict the subdivision of land in the Town of Cumberland.

"5. Pursuant to R.I. Gen. Laws § 45-23-6, the Planning Board, at Section V, Article E(6), of the duly adopted Subdivision Regulations, has provided varying minimum lot sizes for subdivisions within the Town of Cumberland.

"6. In accordance with the duly adopted Subdivision Regulations, all of the Appellants could have or were in the process of subdividing lots in sizes ranging from 12,500 square feet to 80,000 square feet.

"7. The duly adopted Town Charter of the Town of Cumberland provides, in pertinent part, at Section 407(c), that the Town Council shall be the 'policy determining body of the Town' and that it shall have the power to enact, amend or repeal rules, ordinances and resolutions for the government of the Town which shall have to do with the preservation of the public peace, health, safety, welfare and comfort of the inhabitants and the protection of persons and property and other municipal functions.

"8. In August, 1988, the electors of the Town of Cumberland initiated a voter referendum to amend the Cumberland Zoning Ordinance to require a minimum lot size of two acres or approximately 87,000 square feet for any lot in an Agricultural A or B zoning district (the 'Referendum').

"9. The Referendum was approved by the voters on November 8, 1988, which took effect upon passage.

"10. The Referendum in effect created a new 'zoning district' which requires a minimum lot size of two acres without regard to the availability of public water and sewer. Prior to November, 1988, pursuant to the zoning ordinances and subdivision regulations of the Town of Cumberland, minimum lot sizes in all districts were determined by the availability of public water and sewer.

"11. On November 21, 1988, the Planning Board of the Town of Cumberland denied every application to subdivide property in an Agricultural-A district including, but not limited to, those of Appellants Ray, Savage, and Beauregard. The Board held that the aforementioned Referendum required such denial on the grounds that the applications did not comply with the Referendum.

"12. On January 18, 1989, the Town Council of the Town of Cumberland adopted an ordinance incorporating the Referendum into the zoning ordinance of the Town of Cumberland (the 'Ordinance').

"13. Pursuant to R.I. Gen. Laws, § 45-24-4(b), a zoning ordinance amendment which is general in scope requires written notice to all owners of real property within the area of proposed change and within 200 feet of the real property proposed for change.

"14. The Referendum and Ordinance affect more than forty (40%) percent of the acreage in the Town of Cumberland.

"15. Written notice was not provided to owners of real property within the area of proposed change and within 200 feet of the real property proposed for change.

"16. R.I. Gen. Laws § 45-22.2-1 et seq., mandates that all local cities and towns adopt a Comprehensive Land Use Plan and that all zoning ordinances must be in conformity therewith.

"17. The Town of Cumberland has failed to adopt a Comprehensive Land Use Plan.

"18. The Referendum and Ordinance are not in conformance with the existing Zoning Ordinance and/or Zoning Map and/or the current uses of the Appellants' properties and/or the properties abutting Appellants' properties.

"19. The Zoning Ordinance of the Town of Cumberland and an Ordinance of the Town Council dated June 28, 1974 prohibit the introduction of successive petitions to amend the Zoning Ordinance of the Town of Cumberland.

"20. Specifically, the Ordinance provides in pertinent part that:

" 'No petition for an amendment to the Zoning Ordinance including the Zoning Map * * * shall be accepted by the Clerk of the Town Council * * * if a petition or application praying for the same amendment * * * has been denied * * * within the preceding six (6) months * * *.'

"21. On July 6, 1988, Marlene Smith, former Town Councillor, presented an ordinance creating minimum lot sizes of two acres or greater in Agricultural A and B zoning districts.

"22. On August 3, 1988, that ordinance was defeated by the Cumberland Town Council.

"23. On December 21, 1988, less than six months later, former Councilmember Smith presented an ordinance once again requiring two acre minimum lot sizes in an Agricultural A zoning district which was adopted on January 18, 1989.

"[24.] As a result of the above actions taken by the Town of Cumberland, in January, 1989, a Complaint was filed in the Superior Court on behalf of the named Appellants and captioned L.A. Ray Realty, et al. v. The Town Council of the Town of Cumberland, et al. C.A. # 89-0449.

"[25.] Motions for Summary Judgment were subsequently filed on behalf of Appellants and Appellees with a hearing of the same held on January 23, 1990.

"[26.] On January 23, 1990, Appellants' Motion for Summary Judgment was denied; the Appellees' Motion for Summary Judgment was considered by the Court, sua sponte, as a Motion to Dismiss; and Appellants' action was dismissed as to all counts.

"[27.] On February 28, 1990, a Notice of Appeal was filed on behalf of the above-named Appellants."

As will be noted from the stipulation of facts, plaintiffs contend that an ordinance initiated by the electors of the town of Cumberland and providing for a minimum lot size of two acres for any lot in an agricultural A or B zoning district is invalid as inconsistent with the provisions of G.L.1956 (1988 Reenactment) chapters 23 of title 45, which governs the subdivision of land, and chapter 24 of title 45, which is the enabling act allowing city and town councils to adopt zoning ordinances. The plaintiffs raise a number of constitutional issues as well, but we need not reach the constitutional issues since we regard this case as controlled by the foregoing comprehensive statutes that govern the instant controversy.

It should be noted that § 45-23-2 authorizes city and town councils to appoint plan commissions and to empower such commissions to adopt, modify, and amend rules and regulations to control the subdivision of land in each of the municipalities. Such a plan commission was appointed for the town of Cumberland and did, as indicated in stipulation 6, promulgate subdivision regulations governing the size of lots within the relevant areas. It should also be noted that §§ 45-24-2 and 45-24-3 authorize each city or town council to adopt a comprehensive plan through ordinances to govern land use, to prevent the overcrowding of land, to avoid undue concentration of population, and to encourage the most appropriate use of land throughout the town or municipality.

These general grants of power by the Legislature to city and town councils would obviously authorize ordinances and regulations to be issued either by the plan commission or the city or town council that would govern and establish, among other requirements, minimum lot sizes for the erection of dwellings. It is significant to observe that both §§ 45-23-4 and 45-24-4 require the plan commission (in the case of chapter 23) and the city or town council (in respect to chapter 24) to give notice of a public hearing prior to adopting or amending rules or regulations relating either to subdivision of land or to zoning ordinances. Further, § 45-24-4(b) requires a city or town council to issue individual notices when a proposed amendment to an existing ordinance includes a change in an existing zoning map. ¹ The purpose of these notice requirements, either by publication or individual notice, is to give the owners of affected property or those who may be interested in proposed zoning or subdivision amendments an opportunity to come before the relevant body, either plan commission or municipal council, and express their opinions. The hearing gives interested parties a chance to make their views known to the governing body and to testify or argue either for or against the proposed regulation or amendment. We have held that such public notice is...