Perez v. Pawtucket Redevelopment Agency, 1800-A

• Decision Date: 03 April 1973
• Docket Number: No. 1800-A,1800-A
• Citation: 302 A.2d 785,111 R.I. 327
• Parties: Amadeo PEREZ et al. v. PAWTUCKET REDEVELOPMENT AGENCY et al. ppeal.
• Court: Rhode Island Supreme Court

Page 785

302 A.2d 785

111 R.I. 327

Amadeo PEREZ et al. v. PAWTUCKET REDEVELOPMENT AGENCY et al.

No. 1800-Appeal.

Supreme Court of Rhode Island.

April 3, 1973.

Reargument Denied April 27, 1973.

William J. George, North Providence, Louis J. Perez, Pawtucket, for plaintiffs

John F. Sherlock, Jr., Providence, Edward G. McLee, Johnston, for Pawtucket Redevelopment Agency.

Gerald J. Pouliot, Asst. City Sol., Pawtucket, for defendants.

OPINION

KELLEHER, Justice.

We have consolidated two appeals taken from judgments entered in the Superior Court dismissing two separate civil actions in which the plaintiffs seek to bar the Pawtucket Redevelopment Agency (PRA) from acquiring their property by eminent domain. In each case, judgment was entered for the city of Pawtucket and the PRA. We stayed the taking pending this appeal. Perez v. Pawtucket Redevelopment Agency, R.I., 291 A.2d 272 (1972).

The plaintiffs are the owners of a parcel of real estate located in Pawtucket on the north side of Grace Street. The parcel contains a commercial building and a three family dwelling located in a portion of Pawtucket which the city council in February, 1968 had designated as an urban renewal area. General Laws 1956 (1970 Reenactment) § 45-32-4. Later, in November, 1970, the council enacted an ordinance approving a redevelopment plan for this area which had been formulated by the PRA with the assistance and advice of the United States Department of Housing and Urban Development. This plan, known as the Riverview Plan, contemplated that certain property on the south side of Grace Street be acquired so that the traffic pattern which channels vehicles in and about the western portion of the Division Street bridge could be improved.

Later, after consultation with various officials of the Division of Roads and Bridges of the Rhode Island Department of Transportation, ¹ PRA decided that a safer and more efficient traffic pattern would evolve if PRA, instead of taking land lying to the south of Grace Street, acquired land to the north of that highway, specifically the Perez property. To effectuate this purpose, the city council adopted an ordinance amending the Riverview Urban Renewal Plan. The proposed amendment was introduced on September 22, 1971. Two public hearings relative to the adoption of the ordinance were held-one in October and the other in November, 1971. The amendment became law on December 10, 1971 and is entitled ch. 1317.

On December 29, 1971, plaintiffs filed a civil complaint in the Superior Court wherein they challenged the council's adoption on several grounds. It is conceded that prior to its November 24, 1971 meeting, the council assembled in the city clerk's office where they conferred with the city's traffic engineer who informed the legislators that he preferred taking the northerly land on Grace Street rather than the southerly expansion called for in the original plan. The plaintiffs alleged in their complaint that their attorney and their traffic engineer were barred from the city clerk's office while the council heard from the municipality's traffic expert. Such action, they claimed, violated certain provisions of the Pawtucket City Charter requiring the council to hold 'public meetings' and 'public investigations.' ² They also charged that the ordinance was invalid in that the PRA exceeded the authority delegated to it by virtue of the urban redevelopment enabling legislation found in title 45, chs. 31 to 33 inclusive.

When a jury-waived trial was held in the Superior Court, all the testimony presented focused on the council's private meeting with the city's traffic engineer. It was agreed that plaintiffs' attorney and their traffic engineer were denied admittance to this meeting. The attorney and the engineer had appeared at the earlier public hearings and voiced their opposition to a northern widening of Grace Street. The trial justice, in a bench decision rendered on February 7, 1972, found that ch. 1317 satisfied the requirements of the state redevelopment statutes but that the off-the-record conference with the traffic engineer violated 'public meetings' and 'public investigations' provisions of the charter. He classified the discussion between the council and the engineer as an inquiry in furtherance of the council's legislative function.

A judgment was entered which enjoined the taking of the Perez property until such time as plaintiffs' counsel could hear the traffic engineer's testimony as nearly as it was given in the clerk's office in November. The plaintiffs took an appeal from this judgment.

At this point in time it was a new year and the makeup of the council had changed as the result of the November, 1971 election. Five of the seven councilmen who approved ch. 1317 had been reelected. On February 9, 1972, a new ordinance which was almost a carbon copy of ch. 1317 was introduced and laid on the table. Later, on February 23, 1972, the council conducted the public meeting ordered by the Superior Court. The traffic engineer appeared and testified. The plaintiffs' counsel was present and he was allowed to question the witness. The council subsequently adopted the ordinance which is now known as ch. 1328. It became law on March 9, 1972. The plaintiffs returned to the Superior Court. They filed a new complaint which alleged that the amendment was a nullity because of a failure to comply with other sections of the charter which in essence state that no ordinance shall be passed until it has been read on two separate occasions with an additional requirement that there be a three-day interval between the readings. The plaintiffs also repeated their charge relative to the council's failure to comply with various portions of the redevelopment enabling legislation.

The second case was tried before the same trial justice who heard their earlier complaint. He found no violation of the charter and refused to consider the violations of the redevelopment statutes on the ground that they could have and should have been raised in the first hearing.

The plaintiffs first argue that once the trial justice found a violation of what could be described as the 'open door' provisions of the charter, he should have voided ch. 1317. We cannot agree.

During the first trial, the city clerk told the trial justice that the get-together between the council and the engineer was part of the usual routine in which prior to each council meeting, the members gather in his office to go over the agenda. There the councilmen determine which individual will handle on the floor the various resolutions and ordinances awaiting action. Occasionally, a department head or city employee might be asked to come to the meeting and give his views to the council on various legislative proposals and their effect on the municipal function or service with which he is concerned. Representatives of the press are present at such gettogethers. The trial justice described the te te-a -te te between the council and the traffic engineer as an 'unintentional' violation of what might be described as the 'open door' provisions of the charter. The trial justice went on to observe that throughout its consideration of the 1971 ordinance, the council acted in good faith without any intent to deprive plaintiffs' counsel of any 'basic right.'

The 'public meetings' and 'public investigations' provisions are to insure the citizen an opportunity to observe his elected representative on the council as he performs his tasks. The remedy fashioned by the trial justice was a most adept method of guaranteeing the Perez family's representative an opportunity to complete his observation of the council at work. The implementation of the amended plan was halted until the engineer appeared in public before the council. The plaintiffs' counsel was present and questioned the witness. This was far in excess of what the 'open door' provisions contemplated. They assure the citizen a look, not a cross-examination. In fact, the trial justice made it clear that the council could, after hearing the traffic engineer, take any action it desired including the rejection of the proposed northerly taking. The council voted unanimously to affirm the earlier approval of the modification of the original renewal plan.

In upholding the trial justice's refusal to nullify the 1971 ordinance, we should point out that the issue of whether Grace Street should be widened by a taking of land to the north or the south was thoroughly discussed pro and con at the two public hearings conducted in the fall of 1971. Public officials, traffic engineers, citizens and chairmen of various groups such as the West Riverview Project Area Committee appeared before the council and expressed their diverse views. The charter does not require either hearing. A public hearing is required only on budget ordinances or when the pending legislation has evoked such public interest that at least 25 qualified electors have filed a petition seeking a public hearing. Section 2-201(10)(11).

We can find nothing in the 'open door' sections of the charter which would warrant the nullification order now sought by plaintiffs.

In the final phase of their initial appeal, plaintiffs argue that the council failed to comply with provisions of the enabling legislation requiring a legislative declaration that the streets in the project area will be widened, that the plan contains adequate provisions for the payment to owners of property acquired by PRA, and that the federal funding which is available to the agency is necessary for the completion of the area's redevelopment. Sections 45-32-15, 16, 17. There is little need to spend any great length of time disposing of this argument other than to direct plaintiffs's attention to § 45-32-20(d). There, it states that the declarations required by §§ 45-32-15, 16 and 17 shall be referred to specifically in the ordinance which adopts a redevelopment plan. This was done in 1970...