McFarland v. City of Cranston
| Decision Date | 15 July 2003 |
| Docket Number | C.A. No. 01-4938. |
| Parties | CLIFFORD L. McFARLAND, JR., FRANK L. CARRO, and the Concerned Citizens of Glen Woods, Appellants v. CITY OF CRANSTON; THOMAS ROSE in his capacity as Finance Director of the City of Cranston; JOHN NARDOLILLO, JR., JOHN O. MANCINI, MARIO G. CARLINO, ELLEN O'HARA, DAVID C. HERSEY, PAULA B. McFARLAND, MARIO ACETO and JOSEPH A. DELORENZO, JR., in their official capacities as members of the Cranston City Council, PAULA M. SCHICK and LYNN F. MORAN, Trustees of Trust B under the Will of JOHN MANSOLILLO and JOHN GIUSTI, Appellees. |
| Court | Rhode Island Superior Court |
The appellants in this administrative appeal challenge a decision by the Cranston City Council ("City Council") to change the zoning designation for a certain piece of property from single-family residential to multi-family residential to allow for development of a condominium complex. They argue that the decision of the City Council cannot stand because (1) the City Council failed to give proper notice of the hearing on the zone change request, and (2) the zoning amendment approved by the City Council violates the Comprehensive Plan of the City of Cranston ("Comprehensive Plan"). For the reasons set forth in this decision, this Court affirms the decision of the City Council.
Paula M. Schick ("Schick") and Lynn F. Moran ("Moran") were owners of a parcel of land located on Sachem Drive in the City of Cranston (the "Property"). John Giusti entered into a Purchase and Sale Agreement with Schick and Moran to purchase the Property that was conditioned upon the City Council's approval of a zone change. In June 2001, the City Council received an application from John Giusti (the "applicant") requesting that the City Council change the zoning designation for the Property from A-8 Residential to B-2 Residential. The applicant planned to develop a six unit condominium complex on the Property.
On August 7, 2001, the Planning Commission of the City of Cranston ("Planning Commission") held a hearing on the proposed zoning change and voted to recommend the change to the Ordinance Committee of the Cranston City Council ("Ordinance Committee"). The appellants attended the hearing, either personally or through their legal representatives, and voiced their concerns regarding the adequacy of notice, inconsistency between the proposed amendment and the Comprehensive Plan, and inaccuracies in the engineering plans. On August 16, 2001, the Ordinance Committee held a hearing on the proposed zone change, which was attended by the applicant and the appellants, and voted to refer the matter to the City Council without a recommendation.
On August 27, 2001, at the City Council's monthly meeting, the applicant presented his plan. The appellants also were present and voiced their objections, echoing those concerns that they had expressed at the previous hearings. The City Council voted by a majority of five to two to change the zoning classification of the Property in accordance with the applicant's request.
On September 19, 2001, the appellants filed an appeal of the City Council's decision to this Court, naming as appellees the City of Cranston, the members of the City Council, the owners of the Property (Schick and Moran) and the applicant, John Giusti (collectively referred to as "the appellees"). The appellants contend: (1) that the notice of public hearing failed to fulfill the applicable statutory requirements; and (2) that the zone change does not conform with the Comprehensive Plan. This Court has jurisdiction over this appeal pursuant to R.I. Gen. Laws § 45-24-71.
A city or town council has the power to enact or amend a zoning ordinance, but only if the enactment or amendment is consistent with its comprehensive plan. R.I. Gen. Laws § 45-24-50. Such actions by a town or city council are considered to be purely legislative. Consolidated Realty Corp. v. Town Council of the Town of North Providence, 513 A.2d 1, 2 (R.I. 1986) (citing Mesolella v. City of Providence, 439 A.2d 1370 (R.I. 1982)); Alianiello v. Town Council of East Providence, 3 R.I. 395, 117 A.2d 233 (1955); Rhode Island Home Builders, Inc. v. Hunt, 74 R.I. 255, 60 A.2d 496 (1948). As such, these actions "are presumed to be valid." Sweetman v. Town of Cumberland, 117 R.I. 134, 146, 364 A.2d 1277, 1286 (1976); see also Ruby Assoc., Inc. v. Ferranti, 603 A.2d 331, 332 (R.I. 1992).
By statute, however, an aggrieved party may file an appeal with this Court to challenge a city's enactment or amendment of its zoning ordinance. R.I. Gen. Laws § 45-24-71(a). The standard of review governing such an appeal is set forth by statute, as follows:
The review shall be conducted by the court without a jury. The court shall first consider whether the enactment or amendment of the zoning ordinance is in conformance with the comprehensive plan. If the enactment or amendment is not in conformance with the comprehensive plan, then the court shall invalidate the enactment or the amendment, or those parts of the enactment or amendment which are not in conformance with the comprehensive plan. The court shall not revise the ordinance to conform with the comprehensive plan, but may suggest appropriate language as part of the court decision.
Id. § 45-24-71(c). According to the Rhode Island Supreme Court, "[a] court may strike down an amendment only if the amendment bears no reasonable relationship to the public health, safety, or welfare." Sweetman v. Town of Cumberland, 117 R.I. 134, 144, 364 A.2d 1277, 1285 (1976).
On appeal, the appellants allege that there were procedural deficiencies that rendered the zoning amendment void. Specifically, the appellants argue that the City Council failed to give adequate notice of its hearing on the requested zone change, as required by R.I. Gen. Laws § 45-24-53. Since a substantial failure to follow procedures may render a zoning amendment void, see 2 Edward H. Zeigler Jr., Rathkopf's The Law of Planning and Zoning § 27.04[3][d] (4th ed. 1999), this Court first must address the appellants' challenge to the quality of notice of the City Council's hearing on the appellants' zone change request.
The notice and hearing requirements that a city council must follow with respect to a zone change request are set forth, in pertinent part, by statute, as follows:
No zoning ordinance shall be adopted, repealed, or amended until after a public hearing has been held upon the question before the city or town council. The city or town council shall first give notice of the public hearing by publication of notice in a newspaper of general circulation within the city or town at least once each week for three (3) successive weeks prior to the date of the hearing . . . . The newspaper notice shall be published as a display advertisement, using a type size at least as large as the normal type size used by the newspaper in its news articles . . . .
R.I. Gen. Laws § 45-24-53. The appellants argue that the notice of hearing that the City Council placed in the Cranston Herald violated this statute because it was typed in a smaller font than that used by the newspaper in its usual news articles. Specifically, the appellants assert that the notice used a type size of seven font, whereas the usual font size used by the newspaper is ten font. The appellants surmise that this deficiency in the quality of notice renders the amendment void.
The appellees respond that the notice was sufficient under the dictates of R.I. Gen. Laws § 45-24-53 as it informed an ordinary layperson of the property affected and the change sought by the proposed amendment. Sweetman v. Town of Cumberland, 117 R.I. 114, 364 A.2d 1277 (1976). In particular, the notice set forth the date, time, and place of the hearing, contained a map that showed where the property is located, and informed residents where they could obtain the full text of the ordinance in question.
Furthermore, the appellees contend that R.I. Gen. Laws § 45-24-53(f) burdens the appellants with proving that any alleged defects in notice were intentional or misleading. The appellees aver that since the appellants failed to present any such evidence showing that the alleged defects in notice were intentional or misleading, the appellants have failed to carry their burden of proof with respect to challenging the adequacy of notice.
While the parties clearly debate the merits of adequate notice, therefore, they fail to address the issue of the appellants' standing to raise the question of notice on appeal. The appellees do not question the appellants' standing to raise the notice issue, and the appellants do not argue that they indeed have standing to raise this issue before this Court. Notwithstanding the failure of the parties to raise or address the standing issue on appeal, `"this question is of such overriding importance [to the question of adequate notice] as to be raised sua sponte by [this Court].'" Town of Coventry Zoning Bd. of Rev. v. Omni Dev. Corp., 814 A.2d 889, 896 (R.I. 2003) (quoting DeCesare v. Board of Elections, 104 R.I. 136, 141, 242 A.2d 421, 423-24 (1968)).
The Rhode Island Supreme Court "has held on numerous occasions that actual appearance before a tribunal constitutes a waiver of the right of such person to object to a real or perceived defect in the notice of the meeting." Graziano v. Rhode Island State Lottery Comm'n, 810 A.2d 215, 221-22 (R.I. 2002) (citing Ryan v. Zoning Bd. of Rev. of New Shoreham, 656 A.2d 612, 616 (R.I. 1995); Estate of Konigunda v. Town of Coventry, 605 A.2d 834, 835 (R.I. 1992); Zeilstra v. Barrington Zoning Bd. of Rev., 417 A.2d 303, 307 (R.I. 1980); Champagne v. Zoning Bd. of Rev. of Smithfield, 99 R.I. 283, 288, 207 A.2d 50, 53 (1965)). Where the claimed defect in notice does not disadvantage an objector at the hearing (i.e., by thwarting that party's ability to prepare for the hearing...
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