Realty v. Kristen J. Catanzaro Depasquale Bros. Inc. (intervenor).

• Decision Date: 27 May 2011
• Docket Number: No. 2009–165–Appeal.,2009–165–Appeal.
• Citation: 21 A.3d 253
• Parties: GENERATION REALTY, LLC et al.v.Kristen J. CATANZARO et al.DePasquale Brothers, Inc. (Intervenor).
• Court: Rhode Island Supreme Court

21 A.3d 253

GENERATION REALTY, LLC et al.

v.Kristen J. CATANZARO et al.DePasquale Brothers, Inc. (Intervenor).

No. 2009–165–Appeal.

Supreme Court of Rhode Island.

May 27, 2011.

Kelley Nickson Morris, Esq., Providence, for Plaintiff.Lauren E. Jones, Esq., Providence, for Defendant.William R. Landry, Esq., Providence, for Intervenor.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

The issue presented in this appeal is one of first impression for this Court and requires us to interpret G.L.1956 § 45–24–53 of the Rhode Island Zoning Enabling Act of 1991, which deals with the notice and hearing requirements for the adoption, repeal, and amendment of zoning ordinances. In essence, we are asked to decide whether the defendants, the Town of North Providence (North Providence or town) and its representatives,¹ complied with § 45–24–53 when they amended the town's zoning ordinance in 1999. The plaintiffs, Capital City Community Centers, Inc. (Capital City) and Generation Realty, LLC (Generation Realty), the owner and prospective purchaser of property in North Providence, respectively, brought suit against the defendants, alleging that the town did not provide adequate notice of the public hearing on the 1999 amendments. The plaintiffs assert that these amendments included specific changes, which, under § 45–24–53(c), required individual written notice, and that the lack of such notice rendered the amendments null and void. The hearing justice agreed with the plaintiffs and granted their motion for summary judgment. The defendants argue on appeal that the 1999 amendments were general and thus, under § 45–24–53(b), required only public notice. For the reasons set forth below, we vacate and reverse the judgment of the Superior Court.

IFacts and Procedural History

A short review of some Rhode Island legislative history may be helpful to place the material issue at hand in its appropriate context. In 1988, the General Assembly enacted the Rhode Island Comprehensive Planning and Land Use Regulation Act ² as part of an effort “to totally rewrite the major land use enabling legislation in Rhode Island,” which, prior to 1988, consisted of “an assortment of separately enacted and amended statutes, stretching over six decades.” Andrew M. Teitz, How the Law Is Really Made: A Participant's View of the Drafting of a New Zoning Enabling Act, 41 R.I. Bar J. 11, 11 (1992). The Comprehensive Planning and Land Use Regulation Act “provided for each municipality to enact a real comprehensive plan, with state government review of such plan, and carrot-and-stick incentives to make the municipalities comply.” Id.

As part of that same effort to overhaul Rhode Island's land use enabling legislation, in 1991 the General Assembly enacted the Rhode Island Zoning Enabling Act.³ Teitz, 41 R.I. Bar J. at 11. Among other things, the Zoning Enabling Act set forth the notice and hearing requirements for the adoption, repeal, and amendment of zoning ordinances. Section 45–24–53. Section 45–24–53(b) of that act mandates that “[w]here a proposed general amendment to an existing zoning ordinance includes changes in an existing zoning map,” only “public notice” ⁴ is necessary. However, “[w]here a proposed amendment to an existing ordinance includes a specific change in a zoning district map, but does not affect districts generally,” § 45–24–53(c)(2) additionally requires “[w]ritten notice * * * to all owners of real property whose property is located in or within not less than two hundred feet (200 § ) of the perimeter of the area proposed for change * * *.” Section 45–24–53(c)(1) also instructs that public notice for such amendments shall conform to the requirements of subsection (a) and “shall include a map showing the existing and proposed boundaries, zoning district boundaries, and existing streets and roads and their names, and city and town boundaries where appropriate.”

In compliance with both the Comprehensive Planning and Land Use Regulation Act and the Zoning Enabling Act, North Providence adopted a comprehensive plan in 1998 and enacted Ordinance 99–127Z in 1999, which amended the town's zoning ordinance to conform to the comprehensive plan. The amendments effectuated by Ordinance 99–127Z (the 1999 amendments) eliminated one commercial zoning district and created seven new zoning districts; set new dimensional regulations for all of the new zoning districts; deleted the existing table of use codes and substituted a new table in its stead; changed zoning maps to reflect the locations of the new zoning districts; and ultimately placed about 50 percent of the land area of the town into a different zoning district. Among the many properties affected by the 1999 amendments was the property designated as Assessor's Plat No. 22, lot No. 852. This property, owned by Capital City, was originally zoned as residential single family, but it was rezoned to open space by these amendments.

Approximately seven years after the 1999 amendments were adopted, Generation Realty entered into an agreement to purchase the property in question from Capital City.⁵ The agreement purportedly included a condition precedent that made the purchase expressly subject to Generation Realty's first obtaining the necessary permits to build residential dwellings on the property. Accordingly, in April 2007, plaintiffs filed an application to amend the town zoning map and zoning ordinance to change the land in question from open space to residential general or multi-household. In the midst of this process, according to plaintiffs, they discovered that the town “never followed the necessary and proper established procedures to legally change the zone for this land from [residential single family] to [open space], as set forth by statute and law.”

On August 14, 2007, the North Providence Planning Board held a public hearing on plaintiffs' zoning amendment application. At the hearing, plaintiffs alleged that, in attempting to rezone the land in question from residential single family to open space in 1999, the town failed to follow certain statutory procedures and requirements. The board continued the hearing to September 11, 2007, at which time it rejected plaintiffs' contentions about the 1999 notice procedures and voted to recommend to the North Providence Town Council that plaintiffs' application for a zoning amendment be denied. The town council scheduled a public hearing for September 27, 2007, to address plaintiffs' application for a zoning amendment; however, plaintiffs filed a verified complaint in the Superior Court the day before the scheduled hearing.

The plaintiffs' complaint asked the Superior Court to (1) declare defendants' actions in attempting to rezone plaintiffs' land to open space null and void; (2) temporarily and permanently enjoin and restrain defendants from proceeding with the scheduled public hearing on plaintiffs' zoning amendment application; (3) temporarily and permanently enjoin and restrain defendants from preventing or prohibiting plaintiffs from proceeding with their pending development proposal under a residential single family zone classification; (4) issue a writ of mandamus ordering and directing defendants to consider and act upon plaintiffs' development plan and proposal under a residential single family zone classification; and (5) grant plaintiffs such other and further relief as the court may see fit.

The defendants answered the complaint, denying plaintiffs' allegations and raising several affirmative defenses. DePasquale Brothers, Inc., the owner of property abutting the property in question, was allowed to intervene.

On October 15, 2008, plaintiffs filed a motion for summary judgment, asserting that no genuine issue of material fact existed and requesting that the hearing justice declare that plaintiffs' property is zoned residential single family and not open space. In support of the motion, plaintiffs argued that rezoning the property from residential single family to open space constituted “a specific change in a zoning district map” because “[f]ewer than two dozen individual properties were purportedly removed from various zoning districts and redesignated as open space lots.” The plaintiffs contended that, because it was a specific change, individual written notice was required under § 45–24–53(c); they further contended that, because defendants did not comply with this requirement, the 1999 amendments were invalid. The plaintiffs also argued that defendants' failure to include the proposed zoning map as part of their notice by publication and their failure to “put the effective date of enactment” of the 1999 amendments on the map were further deficiencies that invalidated the amendments.

On February 24, 2009, a hearing was held on plaintiffs' motion for summary judgment. At the outset, the hearing justice indicated that she “thought the motion * * * ought to be granted.” She acknowledged that Ordinance 99–127Z “had elements of a general amendment,” pointing out that it established open space districts, “created new residential districts, two commercial districts, an institutional zone and a historic overlay zone,” eliminated one commercial district, and adopted new dimensional requirements for various zoning districts. She went on to say, however, that not all of the changes “universally and uniformly affected all districts and properties of the same genre.” Reasoning that “[s]pecific changes don't become general changes because they're surrounded by many other specific changes, and ‘widespread’ is not the same as ‘universal,’ ” the hearing justice ruled that, “[a]s a matter of law,” the rezoning of plaintiffs' property to open space was a specific, not a general, change. The hearing justice then ruled that the specific nature of that part of Ordinance 99–127Z entitled plaintiffs to “additional notice” and that, because no such notice was...