R. I. Home Builders Inc. v. Hunt
| Decision Date | 16 July 1948 |
| Docket Number | No. 889.,889. |
| Parties | R. I. HOME BUILDERS, Inc. v. HUNT et al. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Proceeding by the R. I. Home Builders, Inc., against Walter M. Hunt and others, members of the council of the city of Cranston and the city clerk, for certiorari to review the council's action in amending a zoning ordinance.
Writ quashed.
Aram A. Arabian, of Providence, for petitioner.
Richard F. Canning, City Sol., and Gardner, Day & Sawyer, all of Providence, for Budlong Rose Co.
This is a petition for certiorari to review the action of the city council of the city of Cranston, hereinafter referred to as the council, in amending its zoning ordinance. The prayer of the petition is that the record of that action be quashed. Pursuant to the writ the respondents, who are the members of the city council and the city clerk, have made a return to this court of all pertinent records.
The petitioner is the owner of the Garden City Plat, a large tract of land which is under extensive development. The portion of the plat involved in this case is on the easterly side of Reservoir avenue and in a residential district zone. The Budlong Rose Company, hereinafter called Budlong, is the owner of a lot designated as lot 779 on assessors' plat 11, section 6. This lot is on the westerly side of Reservoir avenue and opposite that part of petitioner's land just above described.
Prior to the action of the council, a portion of the Budlong lot was in a residential district. On April 11, 1947 Budlong filed an application with the council praying that the zoning ordinance be amended by changing the classification of that portion of its lot from a residential district to a business district. Notice of a public hearing to be held on May 14, 1947 before the ordinance committee of the council on Budlong's application was published in a newspaper of general circulation in Cranston on April 29, May 6 and May 13, 1947. Petitioner also received written notice of such hearing from the city clerk. The hearing was held as advertised, at which time the petitioner, through counsel and witnesses, objected to the proposed amendment. Thereafter, on May 16, 1947, the council, acting upon the recommendation of the ordinance committee, passed an ordinance amending the zoning ordinance in accordance with Budlong's application.
Petitioner's main contention is that the action of the council in amending the zoning ordinance was without warrant of law, in that the amendment was adopted in plain violation of General Laws 1938, chapter 342, hereinafter called the act. Section 1 of the act empowers the various cities and towns to enact zoning ordinances for their respective communities. Section 2, upon which petitioner relies, in so far as pertinent, provides as follows: ‘No such ordinance shall be enacted, amended or repealed until after a public hearing has been held upon the question of the enactment, amendment or repeal of such ordinance,’ before the city council or its duly authorized committee, ‘who shall give first notice of such public hearing’ in a newspaper of general circulation in such city ‘at least once each week for 3 successive weeks prior to the date of such hearing * * *.’ The determinative question in this case is whether the notice of the hearing held on May 14, 1947 before the ordinance committee, which was published on April 29, May 6 and May 13, 1947, satisfied the requirements of the act.
The case is before us on certiorari because the petitioner apparently believed that it was entitled to prosecute such writ as of right under the zoning act. The respondents did not question the propriety of such procedure at the hearing before us. But later we ourselves questioned that right and thereupon requested the parties to file supplemental briefs on the point, which they did in due time. Both parties, relying on Rhode Island Episcopal Convention v. City Council, 52 R.I. 182, 159 A. 647, in which the question also was whether an amendment to the zoning ordinance was duly passed by a city council, agreed that on the authority of that case certiorari was proper in the instant case. The question thus raised is important in the interests of orderly practice.
It is well settled...
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