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Published in Providence Business News (September 8, 1997)

Every state and municipal official with any responsibilities for regulating property should read, posthaste, a recent opinion by the Rhode Island Supreme Court involving the Town of Cumberland.

That opinion, issued in July, found the town liable for what may be well over $1 million in damages because town officials impermissibly interfered with the property rights of two landowners.

The opinion would be a bestseller if everyone who should read it actually does. This would include members of planning boards, town councils, town solicitors, mayors, and state officials responsible for regulating property interests, including at the Department of Environmental Management, the Coastal Resources Management Council, the Department of Health, and the Department of Business Regulation.

It is must reading because our State Supreme Court essentially served notice that protection of property rights is as important as protecting other civil rights, such as free speech and the right to vote. State or governmental bodies who impermissibly abridge these property rights could be liable for significant damages.

The case at issue was particularly egregious. It seemed that certain Cumberland officials actively, and successfully, manipulated municipal process to deny two real estate developers the right to develop their property into single-family house lots under the applicable subdivision ordinances.

When the town council twice refused to increase the minimum lot size for land in agricultural districts, which would make the land far less valuable for the property owners, certain officials engineered a town referendum to decrease the density, which was approved by town voters. That was later struck down by our Supreme Court as an improper way to legislate zoning.

Although the referendum as submitted to the Secretary of State indicated that those who had pending applications for subdivisions, which would include the two plaintiffs in the action, would have their rights “grandfathered” or preserved even if the referendum passed, when the referendum passed, in the words of the Court the “town officials altered the improperly adopted referendum to delete all grandfather’s rights provisions and distributed the falsified ordinance to the planning and zoning boards”.

Additionally, the Court record indicated that other developers in this similar position, but not the plaintiffs, were in fact grandfathered.

Our Supreme Court found the action of certain town officials to constitute tortious interference with plaintiff’s contractual rights. The Court also found the conduct violated both procedural and substantive due process under the Federal and State constitution, and sanctioned damages. The Court summarized the conduct as follows: “Town officials illegally altered a referendum and distributed the ‘new’, invalid zoning ordinance to the relevant departments and boards, violated a Superior Court order regarding a plaintiff’s right to a hearing, and directly interfered with plaintiff’s constitutionally protected property interests. Moreover, this egregious conduct was undertaken with express animus towards the plaintiffs and without actual or legal basis.” The concurring opinion of Justice Flanders recognized that “private property rights stand on an equal constitutional footing with other fundamental personal civil liberties”, and cited Federal precedent recognizing that “[t]he right of [an individual] to devote [his or her] land to any legitimate use is property within the protection of the Constitution”. Justice Flanders went further than the Court, and concluded that while the conduct of town officials was egregious, such egregious conduct is not necessary in order to find a constitutional due process violation. Rather, he argued, “all that had to be shown was that the enactment and application of the new zoning and planning laws to plaintiff’s property was arbitrary and not rationally in furtherance of any legitimate governmental interest”.

Our Rhode Island Supreme Court has had a history of recognizing and protecting property rights, at times in advance of similar protections later invoked by the U.S. Supreme Court.

This decision is a shot across the bow of government officials who believe that the ability of government to regulate the use of private property is limitless.

No only are there limits, but our courts are willing to enforce them.

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