R. I. Home Builders v. Budlong Rose Co., 1962

• Decision Date: 16 June 1950
• Docket Number: No. 1962,1962
• Citation: 77 R.I. 147,74 A.2d 237
• Parties: R. I. HOME BUILDERS, Inc. v. BUDLONG ROSE CO. Eq.
• Court: Rhode Island Supreme Court

Page 237

74 A.2d 237

77 R.I. 147

R. I. HOME BUILDERS, Inc. v. BUDLONG ROSE CO.

Eq. No. 1962.

Supreme Court of Rhode Island.

June 16, 1950.

Aram A. Arabian, Providence, for complainant.

Gardner, Day & Sawyer, Edward W. Day, Hayden L. Hankins, all of Providence, for respondent.

FLYNN, Chief Justice.

This bill in equity was brought by the owner of certain land located in a residential zoning district to enjoin the respondent from using for business purposes a portion of its land that was situated in the same zoning district. The cause was heard in the superior court on bill, answer and proof, and thereupon a final decree was entered denying and dismissing the bill of complaint. It is before this court on complainant's appeal from that decree.

The material facts alleged in the bill are admitted by the answer or are not disputed. Complainant is the owner of a large tract of land situated in the city of Cranston on the easterly side of Reservoir avenue, which is being developed at great expense solely for residential purposes. At all times this land has been located in a residential zoning district under the zoning ordinance of that city. Respondent is the owner of another large tract of land, a portion of which fronts on the westerly side of Reservoir avenue directly opposite complainant's land. This likewise was located in the same residential zoning district prior to the purported change here involved.

Respondent petitioned the city council, hereinafter referred to as the council, to change the zone from residence to business to permit the use of a large portion of its lot numbered 779 on assessors' plat 11, section 6, for business purposes. Pursuant to that petition the council began proceedings to amend the existing zoning ordinance in accordance with the enabling act and ordinance. The notice of a hearing to be held for that purpose before the ordinance committee of the council was advertised in The Providence Journal on April 29, May 6 and May 13, 1947, and pursuant to such notice a hearing thereon was held by that committee on May 14.

Complainant as the owner of all the land directly opposite the part of respondent's land here involved and within 100 feet thereof received from the city clerk a letter dated April 29, 1947 giving notice of the proposed hearing. At that hearing complainant was represented by counsel but no objection was made on the ground that the advertised notice was invalid. At the next regular meeting of the council on May 16, 1947, upon recommendation by the ordinance committee as reported by its chairman, it was voted that the ordinance be amended by changing to a business zone the portion of the existing residence zone wherein respondent's land was located. This amendment was made by the council by a vote of 13 to 7, that being an affirmative vote of more than three fifths of the membership thereof as required by the ordinance and provisions of General Laws 1938, chapter 342, § 2, when a protest had been filed three days before or three days after such a hearing.

On May 19, notwithstanding the previously filed protest of complainant, the ordinance was signed by the mayor and became operative. Shortly thereafter complainant brought in this court a petition for certiorari seeking to quash the action of the council on the ground that it was illegal and void for failure to comply with the provisions of the enabling act requiring that the hearing on the proposed amendment be advertised once a week for three successive weeks. Such petition was denied and dismissed on the ground that in the absence of a pertinent statutory provision this court would not review by certiorari a purely legislative action of the city or town council. R. I. Home Builders, Inc. v. Hunt, 74 R. I. 255, 259, 60 A.2d 496. In the opinion, however, we pointed out that the petitioner was not left without a remedy and that when its rights were injured or substantially threatened with injury by enforcement of the alleged illegal amendment to the zoning ordinance it had ample remedy through ordinary proceedings in equity, if it could establish the illegality of such amendment.

Subsequently complainant brought the instant bill alleging that the purported amendment of the zoning ordinance was illegal and void on the ground that the council had not conformed to certain jurisdictional conditions precedent as provided in § 2 of the enabling act; that the proposed amendment permitted a specified wide range of uses by respondent for building and business purposes; and that by virtue of such permitted and proposed uses complainant's rights in and the use of his property were injured or substantially threatened with injury so as to warrant the relief prayed for in the bill.

There are other allegations, contentions, and evidence, but in our judgment the first and controlling question is whether the provisions of the enabling act as to the required notice are mandatory and amount to conditions precedent to a valid exercise by the council of its power to amend the existing zoning ordinance, or whether such provisions are merely directory and amount only to personal notice to certain remonstrants who may waive them.

The trial justice, adopting the respondent's view, held that the publication of the notice, while not strictly in compliance with the provisions of the enabling act, nevertheless would not serve to invalidate the council's action. The reason assigned is that complainant had actual notice of the hearing and participated therein to such an extent that any irregularity in the notice was waived, citing Hirsch v. Zoning Board of Review of City of Pawtucket, 56 R.I. 463, 187 A. 844; Quinn v. Middlesex Electric Light Co., 140 Mass. 109, 3 N.E. 204; and Clancy v. Wallace, 288 Mass. 557, 564, 193 N.E. 546. To these respondent in argument here has added the cases of Federal Land Bank of Springfield, Mass. v. Flanders, 105 Vt. 204, 164 A. 539; Wilson v. Union Township, 123 N.J.L. 474, 9 A.2d 771; and Pitman v. City of Medford, 312 Mass. 618, 45 N.E.2d 973.

We do not agree with this contention or...