Sweetman v. Town of Cumberland

• Citation: 117 R.I. 134,364 A.2d 1277
• Decision Date: 18 October 1976
• Docket Number: No. 75-159-A,75-159-A
• Parties: William T. SWEETMAN v. TOWN OF CUMBERLAND et al. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 1277

364 A.2d 1277

117 R.I. 134

William T. SWEETMAN v. TOWN OF CUMBERLAND et al.

No. 75-159-Appeal.

Supreme Court of Rhode Island.

Oct. 18, 1976.

[117 R.I. 153] Abatuno & Chisholm, Michael A. Abatuno, Providence, for plaintiff.

Julius C. Michaelson, Atty. Gen., Allen P. Rubine, Special Asst. Atty. Gen., Francis R. Foley, Pawtucket, for defendants.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal from a judgment of the Superior Court dismissing an action to declare an amendment to the Zoning Ordinances of the Town of Cumberland invalid and enjoin enforcement.

The principal issues presented are whether the town council gave sufficient notice of the proposed amendment, whether the amendment was made in accordance with the 'comprehensive plan' of the town, and whether G.L.1956 (1970 Reenactment) § 45-24-4.1, as amended by P.L.1974, ch. 203, § 1, which authorizes conditional zoning by town or city councils, violates constitutional guarantees of due process and equal protection. We uphold the validity of the statute and affirm the judgment of the Superior Court.

In May 1974, John D. and Dionysia C. DeStefano, Henry J. and Beverly F. Keigwin, the owners of 28 acres of land located on Bear Hill Road in the town of Cumberland, submitted a petition requesting the town council to rezone their land from 'Industrial A' to 'Residence C', to permit the construction of an apartment complex. This land was then part of a larger tract classified for light industry which lay adjacent to a neighborhood of single-family residences. No part of the tract had ever been developed for industry, and most of the land was not being used in any way at the time the proposal was submitted. The plaintiff, William T. Sweetman, owns a residence located in the part of the industrial zone that was not reclassified.

A public hearing was scheduled and notices were sent to neighboring property owners and published in local newspapers pursuant to § 45-24-4.1. Many persons spoke in opposition to the zoning amendment, including plaintiff and Robert A. Harpell, a professional planner. Two witnesses testified in favor of the amendment. On June 28, the council voted to rezone the land to 'Residence C', but placed several special limitations on the use of the land. As enacted, the amendment provided, inter alia, that no more than 350 units could be constructed and that the only access to the development was to be off Bear Hill Road. ¹ The plaintiff then brought this action to enjoin enforcement of the amendment and declare it invalid, alleging (1) that inadequate notice was provided, (2) that the amendment constituted illegal 'spot zoning' because it did not conform to the 'comprehensive plan' of the town, (3) that the council violated § 45-22-6 by not referring the proposal to the town planning board, and (4) that the conditions imposed upon the rezoned tract were not authorized by § 45-24-1 and violated the federal constitutional guarantees of due process and equal protection of the laws and the State constitutional guarantee of fair distribution of the benefits and burdens. The trial justice determined that Sweetman had standing to challenge the validity of the ordinances since he had alleged an injury in fact in the from of interference with enjoyment of his land. Sweetman introduced documentary evidence and called various witnesses, including Robert A. Harpell, who had testified against the amendment, before the town council, and whom the judge determined to be an expert on the subject of land-use planning. At the close of plaintiff's case, defendants moved for an involuntary dismissal under Super.R.Civ.P. 41(b)(2), on the ground that plaintiff had not established facts upon which relief could be granted. The trial justice granted the motion and plaintiff now appeals.

I

The plaintiff raises several questions regarding the sufficiency of the notice of the proposed amendment provided by the town council.

First, he contends that the notice mailed to the neighboring landowners did not adequately identify the land in question because it did not include a map or locus plan and did not describe the land by metes and bounds. ²

The notice plaintiff did receive consisted of a letter and a copy of the petition before the council.

The letter advised recipients of the time and place of the hearing on the enclosed petition for the zoning amendment and stated that this notice was directed to landowners within a radius of 200 feet of the parcel for which rezoning was sought. It further advised recipients of their right to be present and opportunity to be heard at the hearing.

The enclosed petition provided:

'John D. DeStefano et ux., Dionysia C. DeStefano, taxpayers and citizens of the Town of Cumberland, residing at 15 Thomas Leighton Boulevard, in said town, and Henry J. Keigwin et ux., Beverly F. Keigwin, taxpayers and citizens of said town, residing on Old Hickory Drive, in said town, represent to this Honorable Body, as follows:

'That they are the owners, in fee simple, of approximately twenty-eight (28) acres of land on the northerly side of Bear Hill Road, a public highway in said town, laid out and designated as Lots numbered 805 and 807 on Assessor's Plat No. 21 and Lot numbered 24 on Assessor's Plat No. 17. (Said land is more particularly described in Exhibit 'A', hereunto annexed).

'All said lots are presently zoned Industrial A.

'That your petitioners are desirous of developing said real estate for residential purposes, to wit: for an apartment house complex.

'That your petitioners submit herewith a plan entitled '200 Locus Plan, Assessor's Plats 17 and 21, Cumberland, Rhode Island, Land of H. J. Keigwin Et Ux. & J. D. DeStefano Et Ux., Environmental Engineering Corp., Cumberland, Rhode Island, Scale 1 = 160 , Drawn, Checked and Approved by S. P. Irza, May 17, 1974, Locus Drawing No. LP-1', hereunto annexed and marked Exhibit 'B'.

'That your petitioners, for purposes of notice, also submit herewith a list of the abutters within two hundred (200) feet of the perimeter of said land, giving names and addresses, which list is marked Exhibit 'C', hereunto annexed.

'WHEREFORE, your petitioners pray that the Honorable Town Council rezone the twenty-eight (28) acres belonging to the petitioners, on the northerly side of Bear Hill Road, in said town, as Residence C instead of Industrial A.'

We believe this was adequate to meet the notice requirements of § 45-24-4.1. In so holding we rely upon the test previously articulated by this court in construing the notice requirements of §§ 45-24-18 and 45-24-4. That is, it is was sufficient to inform an ordinary layman lacking expertise in zoning matters of the property affected and the changes sought. Golden Gate Corp. v. Town of Narragansett, R.I., 359 A.2d 321 (1976); Federal Bldg. & Dev. Corp. v. Town of Jamestown, 112 R.I. 478, 312 A.2d 586 (1973); Carroll v. Zoning Bd. of Review, 104 R.I. 676, 248 A.2d 321 (1968).

In Federal Bldg. & Dev. Corp. v. Town of Jamestown, supra, we decided that the notice required by § 45-24-4 for a proposed general amendment to a zoning ordinance should be considered together with § 45-24-18, which sets forth the notice requirements for a zoning variance or exception, since the sections are not inconsistent with each other, relate to the same subject matter, and are in pari materia. Id. at 485, 312 A.2d at 590. Similarly, we are of the opinion that § 45-24-4.1 should be considered together with § 45-24-18 and § 45-24-4. Like § 45-24-4, § 45-24-4.1 contemplates notice where the proposed zoning changes will result from legislative action to amend the ordinance rather than from action by the board of review to except specific property without changing the ordinance itself. However, § 45-24-4.1 contemplates notice given with respect to specific tracts or parcels of land, rather than the notice with respect to a general amendment affecting overall zoning patterns contemplated by § 45-24-4. See federal Bldg. & Dev. Corp. v. Town of Jamestown, supra at 485, 312 A.2d at 590. Moreover, the language of § 45-24-4.1 expressly requires notice of the nature and purpose of the change.

In Carroll v. Zoning Bd. of Review, supra, the petitioners contended that the notice did not meet the requirements of notice for a proposed zoning variance set forth in § 45-24-18. We held there that the following notice, which is very similar to the one in question now, was sufficient to meet the requirement that the notice advise of the precise character of the relief and the specific property involved. The Carroll notice stated:

"You are hereby notified that Helen F. Stomberg of 106 Rolfe Street, Cranston, R.I. has filed an application for permission to be relieved from sections 52-A, 54-A-3 and 23-A-3(a) of the Zoning Ordinance in the proposed construction of a service station located at 769 Hope Street, Lots 154 and 134 on Assessor's Plat 93 in a Commercial C-2 Zone; approximately 45 41 -10 on lot 134 and four (4) 5,000 gallon underground storage tanks on Lot 154." Carroll v. Zoning Bd. of Review, supra at 678 n.1, 248 A.2d at 323 n.1.

The notice in this case states that the nature of the proposed change is from 'Industrial A' to 'Residence C' for the purpose of constructing an apartment complex. Although it does not identify the property in question by address, it states that the property is located on Bear Hill Road and notes that the property is located within 200 feet of the landowner receiving the notice. Thus, it alerts the landowner that the proposed amendment would affect property very close to his own. If he wishes to ascertain more precisely which property is affected, he may inquire further with the town clerk. See Golden Gate Corp. v. Town of Narragansett, supra. This case is very different from Federal Bldg. & Dev. Corp. v. Town of Jamestown, supra, in which we held that the notice was not sufficient. In that case the town made no effort whatsoever to identify the...