DONALD TOY & a.
CITY OF ROCHESTER & a.
Argued: March 28, 2019
F. Whittum Law Office PLLC, of Rochester (Donald F. Whittum
on the memorandum of law), and Carl W. Potvin, of Rochester,
orally, for the plaintiffs.
K. Mitrushi, deputy city attorney, of Rochester, by brief and
orally, for the defendants.
defendants, the City of Rochester (City) and Michael G. and
Stacey A. Philbrook, appeal orders of the Superior Court
(Howard, J.): (1) requiring the City to reacquire
title to a parcel of land it previously conveyed to the
Philbrooks and transfer title to the plaintiffs, Donald and
Bonnie Toy; and (2) awarding attorney's fees to the Toys.
We affirm in part, reverse in part, vacate in part, and
material facts are largely undisputed. The following facts
were found by the trial court or are supported by the record.
In May 2015, the City took title to a 1.8-acre parcel of land
located in Rochester (Lot 54), which contains a house and
garage in poor condition. The Philbrooks own a lot that
shares a boundary with Lot 54. The Toys own a manufactured
housing park known as "Addison Estates" and an
additional, smaller lot, which are located nearby. On August
15, 2015, the Toys purchased an additional lot, which shares
boundaries with Addison Estates and Lot 54. Lot 54 is located
in a zoning district in which the development or expansion of
manufactured housing parks is prohibited.
August 2015, the Rochester City Council voted to sell Lot 54
through an advertised sealed bid process. Shortly thereafter,
the City posted a bid package, which included a Notice of
Sale and Conditions of Sale. The Notice of Sale included
information on Lot 54 and a bidding deadline of August 27,
2015, and set forth the bidding procedure. The Notice of Sale
required "[e]ach bidder . . . to note on the Bid Form
their intended use of the property, i.e. owner occupied
single family residence, absorption into an adjacent lot,
etc." It also stated that "[t]he City reserves the
right to reject any and all bids and waive any minor or
nonmaterial informalities, if deemed to be in the best
interests of the City."
Conditions of Sale set a minimum bid of $30, 000, and
expanded upon information set forth in the Notice of Sale. It
provided that "[a]butters . . . who bid on the parcel
will have the right of first refusal at the highest bid
price." Additionally, the Conditions of Sale stated that
the property was being sold in "'As Is'
condition" and "without warranty as to . . . the
ability to gain any desired regulatory approval from the City
(i.e. zoning compliance)," and that the City would
convey title to the successful bidder by quitclaim deed.
City received five bids for Lot 54. The Toys submitted the
highest bid of $45, 500, and represented that they intended
to "annex the property" to their adjacent property.
A non-abutter who intended to "rehab" the existing
single house and garage submitted the next highest bid of
$36, 200. Another abutter, who intended to absorb Lot 54 into
his adjacent property, submitted the third highest bid of
$35, 800. The fourth highest bid in the amount of $31, 500
was submitted by a non-abutter who intended to utilize Lot 54
for a single family residence. The Philbrooks submitted the
lowest bid of $31, 000, stating that they intended to
"[a]dd this abutting land to [their] land."
September 8, 2015, the city finance committee held a
non-public session to discuss the bids. The City's mayor
directed the deputy city manager to solicit additional
details about the intended use of the property from the
abutters who submitted bids.
deputy city manager contacted the Toys' attorney and
Michael Philbrook. The Toys' attorney informed him that
"Mr. Toy had not decided exactly what he wanted to do
with the property," and stated that Mr. Toy might place
a single family home on the lot, use it as an entrance to
make Addison Estates more attractive, or combine it with the
adjacent lot he recently purchased "in order to expand
Addison Estates." Mr. Philbrook informed the deputy city
manager that he wanted to build a single family home on the
property, adding that he could not afford to match the
highest bid, but could probably match the second-highest bid
of $36, 200.
deputy city manager presented this information at a
non-public city council meeting on September 15, 2015. During
this session, the city council reached a
"'consensus'" that the City would sell Lot
54 to the Toys, provided that they agreed to a restrictive
covenant in the deed prohibiting the owner of Lot 54 from
ever using the property for manufactured housing park
development or to expand Addison Estates. The city council
also agreed that, if the Toys did not accept the restrictive
covenant, it would sell the lot to the Philbrooks.
next day, the city attorney told the Toys' attorney that
the City "would sell [the Toys] the property as long as
[they were] agreeable to a deed restriction" which would
prevent the development or expansion of a manufactured home
park on the property. He also informed the Toys' attorney
that "the zoning ordinance had changed and that
manufactured home parks are no longer a permitted use."
The city attorney inquired as to whether the Toys would
accept the property with the restrictive covenant, and the
Toys' attorney declined. In light of this response, the
city council directed the city attorney to sell Lot 54 to the
Philbrooks for $36, 200. On October 13, the City conveyed the
property to the Philbrooks by a warranty deed that did not
contain any restrictive covenants.
Donald Toy learned that the City sold Lot 54 to another
bidder, the Toys' attorney demanded that the City sell
the property to the Toys because they were the highest
bidder. The city attorney responded that, after the Toys'