
    Town & Country Mobile Homes, Inc. vs. Inspector of Buildings, City of Pawtucket et al.
    
    DECEMBER 8, 1961.
    Present: Condon, C. J., Roberts, Paolino and Powers, JJ.
   Paolino, J.

This bill in equity was brought to enjoin the respondents from enforcing a certain amendment to the zoning ordinance of the city of Pawtucket and to declare it illegal, null and void in so far as it related to the complainant’s property. After a hearing before a justice of the superior court a decree was entered granting the prayers of the bill. The cause is before us on the respondents’ appeal from such decree.

The issue in this case is whether an amendment to the zoning ordinance changing the zone of complainant’s land was adopted in pursuance of the comprehensive plan for zoning in effect in the city.

On November 12, 1958 complainant purchased the land involved in this suit. It consists of approximately 16 acres and was part of a larger parcel of land which was zoned industrial A when the original zoning ordinance was enacted. It adjoins land zoned industrial A and is in close proximity to other industrially zoned land as well as to a residence B district. The complainant purchased the property for the purpose of using it for a mobile home trailer park, a use not prohibited under the ordinance at that time.

In reliance on the fact that the zoning permitted such use, complainant immediately commenced extensive and costly preliminary work consisting of engineering surveys and grading in improving the land for the proposed use. It also entered into certain contracts obligating itself to expend further sums of money. In addition to the purchase price, it expended approximately $4,000 for survey and map work and $5,000 on an excavation and grading contract.

The original zoning ordinance of the city of Pawtucket was enacted in 1928. At that time the land in question was zoned industrial A and was continued as such under the 1953 revision. Sections 26.16 and 26.17 of chapter 26 of the 1953 revision provided for the issuance of a use permit by the building inspector. On December 8, 1958 complainant made informal inquiry of the building inspector as to the necessity of obtaining a use permit for its proposed use of the premises and was advised that in the circumstances no such permit was required. The complainant continued the work on the premises through January 5, 1959.

Thereafter the city council commenced proceedings to amend -the ordinance by changing only the zoning of complainant’s land from industrial A to residence B, in which a mobile home trailer park would not be a permitted use. After a public hearing on January 28, 1959, the amendment was adopted over complainant’s objection and went into effect on February 26, 1959. Sometime thereafter complainant was notified by the 'board of appeals of said city to cease using its premises for commercial uses. As a result of such notice the original bill of complaint in this matter was filed by complainant.

Following certain rulings on the pleadings by the superior court complainant on December 29, 1959 filed an application with the building inspector for a use permit under sec. 26.16 of the 1963 revision of the ordinance. He denied the application and the board of appeals sustained his ruling. After a hearing in this court complainant’s petition for certiorari to review the board’s action was denied and dismissed. See Town & Country Mobile Homes, Inc. v. Zoning Board of Review, 91 R. I. 464, 165 A.2d 510. In that case, however, we held that the complainant could pursue its remedy in equity.

On December 22, 1960 complainant filed a second amended bill of complaint, and after the pleadings were closed the cause was heard on the merits in the superior court. The complainant contended that the amendment was arbitrary, capricious and unreasonable because it was not adopted pursuant to a comprehensive plan as required by the enabling act.

After reviewing the evidence the trial justice made the following findings of fact: The amendment applied solely to complainant’s land; a mobile home trailer park was a permitted use in an industrial A zone; prior to the enactment of the amendment complainant had spent a considerable sum of money in preparing the land for the proposed use; no evidence had been presented showing that other industrial land in the area had been converted to residence use; in the absence of evidence to' the contrary he would assume that the land in the vicinity used for residences was zoned residential B by the original zoning ordinance; because of the nature of complainant’s land, it could not be used for the purpose permitted by the amendment; the amendment deprived complainant of its property rights without due process; and the complainant had satisfied him that the amendment was not justified.

The trial justice noted in his decision that the original zoning ordinance was enacted in accordance with a comprehensive plan, but he found that the amendment was a capricious and unreasonable restriction of complainant’s property. Implicit in such finding is the conclusion of the trial justice that the amendment was not adopted in pursuance of the comprehensive plan for zoning in effect in the city. He therefore held that in so far as it related to the land in question, the amendment was null and void.

The respondents contend that the decree is against the law and the evidence and the weight thereof. In considering their contention that the decree is against the evidence, we have carefully examined the transcript and the exhibits in evidence. The decree is based on the findings of fact made by the trial justice. Unless those findings are clearly wrong they will not be disturbed by this court. DiLibero v. Tagliaferri, 76 R. I. 302. In our opinion the pertinent findings are supported by the evidence and we cannot therefore say that they are clearly wrong.

The question remains whether the trial justice applied the correct law to such findings or whether he overlooked or misconceived any material evidence. The respondents contend that there has been a substantial change of conditions in the area since the enactment of the original ordinance and that therefore the council was justified in adopting the amendment in question. They also contend that the size and area of complainant's land justified the council's action.

On the basis of the record before us it is not necessary to consider such contentions. Although the size and area of a parcel of land, or a substantial change of conditions, may have a bearing on the validity of an amendment rezoning land in a particular case, the narrow issue here is whether there is any evidence in the record indicating that the amendment was adopted pursuant to a comprehensive plan. When changing zoning regulations by amending a part of the ordinance, the local legislature is required under G. L. 1956, §§45-24-3 and 5, to have such change conform to the comprehensive plan of zoning in effect in the municipality. This requirement is mandatory. Cianciarulo v. Tarro, 92 R. I. 352, 168 A.2d 719.

J. Frederick Murphy, John F. Cuzzone, Jr., for complainant.

John A. O’Neill, City Solicitor, Harvey J. Ryan, Assistant City Solicitor, for respondents.

There is no evidence in the record showing that the city council exercised its amendatory power in this instance in conformity with the comprehensive plan of zoning in effect in the city. They therefore exceeded their statutory authority. In the circumstances we cannot say that the trial justice overlooked or misconceived any material evidence. In our opinion his decision and the findings of fact on which it is based are correct and the decree is not against the law or the evidence or the weight thereof.

The respondents’ appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.

Robert N. Greene, for plaintiff.

Hurley, Moriarty & Moakler, John W. Moakler, John F. Sherlock, Jr., for defendant.  