Nicholson v. Tourtellotte, 1648-A

• Decision Date: 24 July 1972
• Docket Number: No. 1648-A,1648-A
• Citation: 293 A.2d 909,110 R.I. 411
• Parties: , 70 A.L.R.3d 118 Ronald NICHOLSON et al. v. Edward TOURTELLOTTE et al. ppeal.
• Court: Rhode Island Supreme Court

Page 909

293 A.2d 909

110 R.I. 411, 70 A.L.R.3d 118

Ronald NICHOLSON et al. v. Edward TOURTELLOTTE et al.

No. 1648-Appeal.

Supreme Court of Rhode Island.

July 24, 1972.

Reargument Denied Sept. 15, 1972.

[110 R.I. 418] Roberts & Willey Inc., Dennis J. Roberts, II, Edward Manning, Providence, as amicus curiae for U.S. Investment and Development Corp.

Urso & Adamo, Natale Urso, Westerly, for defendants.

OPINION

JOSLIN, Justice.

This civil action was commenced in the Superior Court in November of 1971 by the owners, and the prospective buyers and developers of a tract of land located on Post Road and Dunn's Corner in the town of Westerly and containing 30 acres, more or less. Named as the defendants in their official capacities are the town building and zoning inspectors, and the members of the zoning board and of the town council. The plaintiffs allege that they have complied with all the prerequisites for the issuance of the permits which will authorize the construction of multi-family dwellings on the property, and they ask that the defendants be compelled to issue those permits. In the Superior Court the defendants' motion for an involuntary dismissal was granted, and the plaintiffs appealed from that judgment.

There is no controversy about the facts giving rise to this litigation. The case has its beginnings in the 1962 amendment of the town's zoning ordinance. ¹ That amendment divided the town into several zones or districts including an R-1 residential zone where a multi-family dwelling was not an authorized use, and an R-3 residential zone where that use was permitted. The subject tract was located in an R-1 zone.

In 1968 Dorothy M. and Walter H. Krebs, Jr., the then owners of the parcel in question, and two of the plaintiffs, petitioned the town council to rezone Krebs' land from R-1 to R-3 residential and thereby permit the construction of multi-family dwellings thereon. The petition was considered by the council at its May 3, 1968 meeting, as was a proposed contract between the owners and optionees on the one side and the town council on the other. That contract stipulated that the town would agree to rezone the Krebs' land from R-1 to R-3 residential, if the owners and the prospective buyers would agree not to subdivide the premises '* * * except as such subdivision shall conform to the R-1 zoning regulations * * *.' The town council acted favorably on both matters, granting the petition to rezone and directing its president to execute the proposed agreement on behalf of the town. Thereafter, the contract was executed and a resolution rezoning the property was enacted.

In February of 1970 the town's zoning ordinance was again amended, and a multifamily dwelling, a permitted use in an R-3 residential district under the 1962 amendement, became a conditionally permitted use in that district and available only if authorized by the zoning board as a special exception.

About a year later, in January 1971, certain developers, also plaintiffs herein, agreed to purchase the Krebs' land for $240,000. The purchase and sale agreement was specifically made subject to the condition that the land '* * * is now properly zoned to permit the construction of a minimum of 225 apartment units, and that said property will continue to be so zoned through the date of closing (by January 5, 1972).'

The developers thereupon interested a group of potential investors in the proposed development, engaged architects and engineers, applied for and received a commitment from the Federal Housing Administration for long-term financing and made other plans for the construction of 216 apartment units on the land which they had agreed to purchase. When those preliminaries were completed they applied for the appropriate zoning and building permits, and when they were not forthcoming this litigation was instituted.

The parties have briefed and argued the case as if the principal legal issues were the legality of the May 1968 rezoning and the validity of the May 1968 agreement wherein the town and the ownership group, each in consideration of the other's undertaking, respectively agreed to rezone the subject property from R-1 to R-3, and to subject that property to a special restriction not common to the other parcels in R-3 residential zones.

The issues are novel in this state, and the authorities elsewhere are not in accord. On the negative side is Rathkopf who says that most courts reject the rezoning as illegal and the bargain as invalid and ultra vires if the quid pro quo for the enactment of the rezoning legislation was the imposition of restrictions upon the rezoned land differing from those imposed elsewhere in the same district. Underlying those decisions, he says, is the notion that a contract embodying such terms '* * * is prima facie evidence of 'spot zoning' in its most maleficent aspect, is not in accordance with a comprehensive plan and is beyond the power of the municipality.' 3 Rathkopf, Zoning and Planning 74-9 (3d ed. 1972). Accord, Hartnett v. Austin, 93 So.2d 86 (Fla.1956); Baylis v. Baltimore, 219 Md. 164, 148 A.2d 429 (1959); Houston Petroleum Co. v. Automotive Products Credit Ass'n, 9 N.J. 122, 87 A.2d 319 (1952). See State ex rel. Zupancic v. Schimenz, 46 Wis.2d 22, 31-32, 174 N.W.2d 533, 538-39 (1970); 5 McQuillin, Municipal Corporations § 15.41 (rev. 3d ed. 1969); 2 Yokley, Zoning Law & Practice § 19-11 at 439-41 (3d ed. 1965).

The cases espousing a contrary view, although in the minority, are perhaps more recent. Generally, they attempt to accommodate traditional zoning concepts to the '(e)xplosive urban growth and rapid social and economic development (which) have taxed inflexible land-use-change mechanisms to their limit.' Shapiro, The Case for Conditional Zoning, 41 Temple L.Q. 267, 287 (1968).

The State of New York follows the minority rule, and in Church v. Islip, 8 N.Y.2d 254, 203 N.Y.S.2d 866, 168 N.E.2d 680 (1960) the court of appeals, while recognizing that '(a)ll legislation 'by contract' is invalid in the sense that a Legislature cannot bargain away or sell its powers,' nonetheless announced that it would deal 'with actualities, not phrases.' Id. at 259, 168 N.E.2d at 683, 203 N.Y.S.2d at 869. Then, viewing the contract in that light, it decided that the agreed-upon rezoning was not arbitrary, preferential or discriminatory, that since the landowners had agreed to the restrictive conditions there was no one in a position to contest them and that the contract was therefore valid and enforceable.

In accord is the State of Washington. There the court, while acknowledging that '(t)here are jurisdictions which hold that all zoning ordinances which are amended, with concomitant agreements, are invalid' nonetheless held the better rule to be that,

'* * * before deciding to amend a zoning ordinance, the city must weigh the benefits which will flow to the public generally against the detriment, if any, to the adjacent property owners or to the public which may result therefrom. An amendment to a zoning ordinance and a concomitant agreement should be declared invalid only if it can be shown that there was no valid reason for a change and that they are clearly arbitrary and unreasonable, and have no substantial relation to the public health, safety, morals, and general welfare, or if the city is using the concomitant agreement for bargaining and sale to the highest bidder or solely for the benefit of private speculators.' State ex rel. Myhre v. Spokane, 70 Wash.2d 207 at 216, 422 P.2d 790 at 796 (1967).

See Sylvania Electric Products,...