Newman v. Mayor Of City Of Newport

• Decision Date: 21 January 1948
• Docket Number: No. 883.,883.
• Parties: NEWMAN et al. v. MAYOR OF CITY OF NEWPORT et al.
• Court: Rhode Island Supreme Court

57 A.2d 173

NEWMAN et al.

v.MAYOR OF CITY OF NEWPORT et al.

No. 883.

Supreme Court of Rhode Island.

Jan. 21, 1948.

Petition by Benjamin Newman and others against the Mayor of the City of Newport and others for writ of certiorari to review denial of permits for approaches to gasoline station.

Record quashed.

See also 57 A.2d 180.

Sheffield & Harvey and W. Ward Harvey, all of Newport, for petitioners.

Alexander G. Teitz, City Sol., of Newport, for respondents.

CAPOTOSTO, Justice.

This is a petition for a writ of certiorari brought by Benjamin Newman and Ida Newman, his wife, and the Sun Oil Company against the mayor and the board of aldermen of the city of Newport and Harry R. Hamilton, in his capacity as commissioner of public works of that city, to review the action of the respondents in denying to the petitioners access to a gasoline station which was to be erected on land owned by the Newmans in Newport.

The Newman land, which abuts on three streets, has a frontage of about 83 feet on both Spring and Hozier streets, and of approximately 24 feet on Court House street. All these streets are curbed. A curb cut, 14 feet wide, on Court House street is the only one in the entire curbing around this land, which cut is for access to an old barn facing on that street. The Newmans, by written contract, agreed to sell the premises in question to the Sun Oil Company provided, among other things, that curb cut permits for the necessary approaches to the contemplated gasoline station were obtained.

At the time of the application under consideration, a zoning ordinance divided the city of Newport into districts, among which were ‘Business District Uses.’ The Newman property was in a business district zone, which permitted the use of land in that area for a gasoline station. The right of the petitioners here to use the land for that purpose is therefore undisputed.

There was also then in force an ordinance entitled ‘An Ordinance In Amendment Of Chapter 12-13 Ordinances Of The City Of Newport, Revision of 1945, Entitled ‘Streets And Highways” commonly known as the curb cut ordinance, hereinafter called the ordinance. In so far as pertinent, this ordinance provides in substance that a person owning land abutting upon any public street or highway in the city of Newport, who wants an entrance or driveway over a sidewalk adjoining his land, must make application to the commissioner of public works and file a plat with him showing the particulars. Upon such application, the commissioner is required to advertise the petition three times in one week in a local newspaper and to give written or oral notice to owners, lessees or tenants of land within 500 feet of the proposed entrance or driveway, so that all remonstrants might have a fair opportunity to make their objections at the time and place specified in the notices for hearing on the application.

The ordinance further provides that within ten days of the hearing the commissioner shall ‘examine into the necessity for said entrance or driveway, and in so doing shall take into consideration the public welfare, traffic hazards, dangers to pedestrians and the public generally, and any and all matters pertaining thereto, and shall act upon and approve or disapprove said application. If the Commissioner disapproves the application, he shall notify the applicant of his action * * * provided, however, that the applicant shall have the right to appeal from the action of the Commissioner to the Board of Aldermen, within ten days thereafter, who shall affirm or reverse the action of the Commissioner, without amendment or alteration.’

In compliance with the ordinance the petitioners filed an application asking for approaches to the Newman land as shown on a plat attached to the application, or, in the alternative, ‘for other ordinary entrances, driveways or approaches to the abutting land above described so that reasonable and lawful access to said land may be had for the purpose of serving and operating the proposed gasoline filling station * * *.’ The plat shows two proposed approaches on Spring street, two on Hozier street and one on Court House street, all approaches being about 18 or 19 feet wide. This plat further shows that all three streets are one-way streets for vehicular traffic. On Court House street from Hozier street traffic moves in a northwesterly direction; on Hozier street it moves easterly into Spring street, and from thence it moves northerly on Spring street. An alternative plat indicating alleged minimum entrance requirements was also filed with the application. This plat shows two approaches on Spring street and one on Court House street, all of these approaches being about 24 feet wide. It eliminates the two entrances on Hozier street, upon which there is a bus terminal opposite the Newman land.

Pursuant to the notices given by the commissioner, a hearing was held by him, at which time the petitioners were permitted full opportunity to present their case and to cross-examine persons who appeared in opposition to the application. Later the commissioner rendered a decision in the form of a letter, dated March 29, 1947, to petitioners' attorney disapproving the application.

In order to properly understand the position taken by the commissioner in this matter we deem it necessary to quote freely from that letter. After referring to the width of the streets and the vehicular traffic thereon, he says: ‘The area is heavily congested now and will be even more so when part of the fleet, which is to be based in Newport will be here in full force and additional buses of the Shortline will swing through this area.’ In setting out the nature of the remonstrances he mentioned the fact that ‘one of the gasoline station owners indicated that if these driveways were permitted and an accident should happen it would create a hardship on all gasoline station owners in Newport, since public opinion would turn against all of them.’

The letter then proceeds as follows: ‘I do not feel that I am in any way depriving the applicants of private property without due process of law or without just compensation under the constitutions of either the State of Rhode Island or of the United States. * * * It is not a question of taking property from the applicants but of refusing them the right to have driveways over the sidewalks belonging to the city so that automobiles may be driven on to their land. The property may be used for any commercial purpose which would not require such driveways. Furthermore, there can be no claim that reasonable and lawful access is denied to the land, because * * * there is a small driveway now existing leading from Court House Street on to the property in question. The applicants, Benjamin Newman and Ida Newman, can use the property for its present uses without any additional driveways and the Sun Oil Company is merely a prospective purchaser of the land which desires to erect a gasoline station thereon in the future.’ (Italics ours.)

With reference to petitioners' request that if the commissioner disapproved the location of the driveways according to the original plat, then they applied for such other reasonable and lawful access to the land as he might grant for its use as a gasoline station, the commissioner's letter says: ‘There is nothing in the ordinance in question which requires or permits me to pass on such an alternative application, and I do not think that the proper function of the Commissioner of Public Works is to help an applicant draw plans for driveways which would be acceptable.’

The letter concludes as follows: ‘In as much as this is the second petition that has been filed for this same parcel of land, and further petitions will cause expense and inconvenience both to the applicants and to the City I, therefore, am willing to state that in my opinion the piece of land is so situated that no possible arrangements of a driveway or driveways for commercial purposes could be approved by me, as I think that any such arrangement of driveways would constitute a traffic hazard and a danger to pedestrians and the public generally, in view of the location, traffic, and the dimensions of the streets.’

Within the time prescribed by the ordinance the petitioners appealed from the decision of the commissioner to the board of aldermen, which thereupon fixed a time for hearing the appeal. At such time the petitioners were again heard in support of their application, but the board affirmed the decision of the commissioner in all particulars without comment or reservation whatsoever. Therefore the board's position also manifestly was that the Newmans were not entitled to any further approaches to their land if it was to be used for business purposes. The present proceedings followed.

The petitioners make two main contentions. First, that the ordinance is unconstitutional in that it violates article I, sec. 16 of the Constitution of this state, which provides that private property shall not be taken for public uses, without just compensation; and that it violates article XIV of the amendments of the Constitution of the United States, commonly known as the due process and equal protection clauses of that Constitution. Secondly, that if the ordinance is constitutional, then the respondents acted in an arbitrary and capricious manner in the exercise of a semijudicial function.

Before considering these contentions, certain preliminary observations are desirable. The respondents urge that because the Sun Oil Company is a mere conditional vendee it has no property right which enables it to question the constitutionality of the ordinance, and that the Newmans, who ‘have a clear legal interest in the property,’ are not aggrieved because they themselves do not intend to build a gasoline station. They then argue that since the Newmans already have a driveway to their property, they do not need any additional driveways to serve the structures presently...