Mason v. Bowerman Bros., Inc., 3002

• Decision Date: 29 January 1963
• Docket Number: No. 3002,3002
• Parties: Ezra W. MASON et al. v. BOWERMAN BROS., INC., et al. Eq.
• Court: Rhode Island Supreme Court

Page 772

187 A.2d 772

95 R.I. 425

Ezra W. MASON et al. v. BOWERMAN BROS., INC., et al.

Eq. No. 3002.

Supreme Court of Rhode Island.

Jan. 29, 1963.

Harvey S. Reynolds, Providence, for complainants.

Adler, Pollock & Sheehan, William J. Sheehan and Charles A. Pisaturo, Providence, for Bowerman Bros., Inc.

Frank L. Martin, Town Solicitor for Town of Bristol.

Anthony R. Berretto, Bristol, for John Francis 3d and others.

Morphis Jamiel, Warren, for Agnes S. Mahoney and others.

ROBERTS, Justice.

This bill in equity was brought to enjoin the respondents from making any industrial use of two lots of land located on Metacom avenue in the town of Bristol pursuant to an amendment to the terms of the zoning ordinance of that town purporting to change the zoning classification thereof from residential to industrial. While the bill was pending the respondents entered a special plea, which was heard as to the truth thereof by a justice of the superior court, who thereafter entered a decree denying and dismissing the bill. From that decree the complainants have prosecuted an appeal to this court.

The record discloses that respondents, Bowerman Bros., Inc. and Agnes S. Mahoney, are the owners of two parcels of land located on the westerly side of Metacom avenue designated as lots 7 and 1 on assessors' plat 94. It is not disputed that until August 1960 each of these lots had been zoned for residential uses. Neither is it disputed that prior to June 17, 1960 application for the grant of an exception or variance with respect to these two parcels had been made to the zoning board of review of the town of Bristol. This application was withdrawn on June 17, 1960 without any action having been taken thereon by the board. On July 7, 1960 the town council amended the provisions of the zoning ordinance then in effect so as to reclassify the instant lots from a residential to an industrial use. This amendment was approved at a special financial town meeting held on August 1, 1960. Thereupon complainants brought their bill of complaint to enjoin the use of the lots for any industrial purpose on the ground that the enactment of the amendment to the ordinance was invalid.

On June 28, 1961, at which time the instant bill was pending hearing, the town council enacted a zoning ordinance wherein the ordinance then in effect and all amendments thereto were repealed. The newly enacted ordinance was submitted to and approved by a special financial town meeting held on July 24, 1961. Under the pertinent provisions of such ordinance lots 7 and 1 were placed in an industrial zoning classification. Thereafter, on October 11, 1961, respondents filed a special plea in the instant case, alleging therein the enactment of the new ordinance on June 28, 1961 and contending that by virtue thereof the issues raised by the instant bill had been made moot. Thereafter, by stipulation, the cause went to hearing on the truth of the special plea. At the conclusion thereof the trial justice, finding that the ordinance of June 28, 1961 had been validly enacted, entered the decree denying and dismissing the bill.

The several contentions of error urged by complainants go to the validity of the action of the special financial town meeting in voting to approve the enactment by the town council of the zoning ordinance of June 1961. In our opinion, however, an antecedent issue is here raised, that being whether upon its enactment by the town council the new zoning ordinance became effective without being approved by a financial town meeting pursuant to the provisions of P.L.1929, chap. 1450.

The complainants contend that chap. 1450 is applicable to any legislative action of the town council relating to zoning which, they argue, to become effective must be approved by a financial town meeting. The trial justice ruled to the contrary, however, holding, in substance, that the provisions of chap. 1450 have no application to enactments which are amendatory of the zoning ordinance. Taking the view that the ordinance of June 1961 was, in effect, amendatory, he held that it became effective upon enactment by the town council and without the approval of the special financial town meeting, and therefore the enactment of the new ordinance rendered the issues raised in the instant bill moot.

The authority to enact zoning ordinances was by the provisions of the original enabling act, G.L.1923, chap. 57, conferred only upon the city councils of the several cities. That act was thereafter so amended by the provisions of P.L.1925, chap. 643, as to confer upon the several town councils a similar authority to enact such ordinances upon the approval of the financial town meeting of such towns.

Such limitation upon the authority of the town councils to legislate in this respect remains in full effect. The pertinent provisions of the general enabling act now in effect, G.L.1956, § 45-24-1, read: '* * * and the town council of any town, upon the approval of the financial town meeting of such town, shall have the power in accordance with the provisions of this chapter * * * by ordinance to regulate and restrict * * *.'

Later the general assembly enacted P.L.1929, chap. 1450, which legislation applied specifically to the authority of the town council of Bristol to enact a zoning ordinance. In sec. 1 of chap. 1450 the town council was authorized to enact a zoning ordinance pursuant to the general enabling act as amended in 1925. It further provided in sec. 1 that 'such zoning ordinance so enacted by said town council under the authority of this act shall become effective immediately without the approval of the financial town meeting * * * and shall have the same force and effect as if it had been so approved.' In other words, the general assembly expressly authorized the town council of the town of Bristol to enact a zoning ordinance that would become effective when so enacted and without the approval of the financial town meeting.

Section 2 of chap. 1450 provides that upon the enactment of a zoning ordinance by the town council pursuant to the authority conferred in sec. 1 that authority shall expire. Said sec. 2 reads as follows: 'Whenever a zoning ordinance shall have been enacted by the town council of the town of Bristol as provided for in section 1 hereof, all the provisions of chapter 57 of the general laws as amended by chapter 643 of the public laws of 1925 [now G.L.1956, chap. 24 of title 45] including the requirement of the approval of a financial town meeting before any zoning ordinance can become effective, shall apply to all subsequent enactments of zoning ordinances by the town council of the town of Bristol whether in effect amending, abridging, modifying or repealing the zoning ordinance enacted by the town council of the town of Bristol under the authority of section 1 hereof.'

The legislative intent as disclosed by said sec. 2 is that when the authority conferred on the town council in sec. 1 was exercised by the anactment of a zoning ordinance that authority was to expire and thereafter the town council's authority to enact a zoning ordinance was again to be subject to the limitations of the general enabling act. However, § 45-24-5 of the general enabling act does not require that enactments of a town council amending or repealing zoning legislation be approved by a financial town meeting to become effective.

The language of § 45-24-5 reads in pertinent part: 'The city or town council, as the case may be, shall have power, after a public hearing as herein provided, from time to time to amend or repeal any such ordinance and thereby change said regulations or districts * * *.' It is clear then that generally the several town councils may amend or repeal zoning ordinances without approval on the part of the financial town meeting. When the provisions of sec. 2 of chap. 1450 are viewed in the light of the provisions of § 45-24-5, the question arises whether the legislature intended to impose upon the town council of the town of Bristol the burden of requiring that its amendatory and repealing enactments be approved by a financial town meeting to become effective, a burden that generally is not imposed upon town councils by the provisions of § 45-24-5.

No contention is made here that the effect of § 45-24-5 is other than to relieve town councils of the necessity of obtaining financial town meeting approval for such enactments as amend or repeal zoning ordinances. The basic contention here is that the trial judge erred in construing sec. 2 as not requiring that the amendatory legislation of the town council of the town of Bristol be subject to approval of the financial town meeting. It is aruged, in other words, that sec. 2, standing alone, constitutes a proper exercise of the legislative power and, while it purports to make applicable to enactments of the town council the limitations contained in the general enabling act, in particular § 45-24-5 thereof, it also, when read literally, requires that amendatory ordinances be approved by the financial town meeting.

The language of sec. 2, when read literally, renders the legislative intention obscure. It makes the enactments of the town council subject to the general enabling act and appears to require amendatory and repealing enactments to be approved by a financial town meeting. Where ambiguity renders construction of a statute necessary, the primary object of the court is to ascertain the legislative intention from a consideration of the legislation in its entirety, viewing the language used therein in the light, nature, and purpose of the enactment thereof. Nolan v. Representative Council, 73 R.I. 498, 57 A.2d 730; State v. Muldoon, 67 R.I. 80, 92, 20 A.2d 687. In so construing the statute the court will not undertake to read the enactment literally if by so doing we attribute to the legislature an intention that is contradictory of or inconsistent with the evident purpose of the act. O'Brien v....