Restivo v. Lynch

• Decision Date: 29 January 1998
• Docket Number: No. 96-224-M,96-224-M
• Parties: Edmund A. RESTIVO, Jr., in His Capacity as General Partner of Sunnybrook Associates v. Gerald R. LYNCH et al. P.
• Court: Rhode Island Supreme Court

Page 663

707 A.2d 663

Edmund A. RESTIVO, Jr., in His Capacity as General Partner of Sunnybrook Associates v. Gerald R. LYNCH et al.

No. 96-224-M.P.

Supreme Court of Rhode Island.

Jan. 29, 1998.

Michele A. Almon, Michael P. Donegan, Philip W. Noel, Providence, for Plaintiff.

William Conley, Jr., Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

OPINION

LEDERBERG, Justice.

This case came before the Supreme Court on the petition for certiorari of Edmund A. Restivo, Jr. (petitioner), in his capacity as general partner of Sunnybrook Associates, following a Superior Court judgment affirming a decision of the East Providence City Council (council). In that decision, the council denied the petitioner's request for approval of a subdivision of land in East Providence, Rhode Island. For the reasons set forth below, we deny the petition for certiorari. A summary of the facts pertinent to our decision follows.

Facts and Procedural History

Sunnybrook Associates (Sunnybrook), a Rhode Island general partnership, owns a certain parcel of real estate known as Sunnybrook Estates. On or about August 4, 1993, Sunnybrook submitted a petition seeking approval of a proposed subdivision of Sunnybrook Estates to the city clerk of the city of East Providence (city). Because of concerns about the adequacy of the proposed drainage system for the new development and about the impact of drainage on surrounding property, the city's planning board (planning board), pursuant to § 15-34 of the Revised Ordinances of the City of East Providence (Rev.Ords.1986, § 30-19) and with the knowledge and approval of the council, requested that Sunnybrook hire the engineering consulting group Camp Dresser & McKee (CDM) to review the proposed drainage system.

After CDM recommended that the planning board deny Sunnybrook's initial engineering version of the proposed subdivision, given CDM's conclusion that existing drainage difficulties in the area would be exacerbated by the development, Sunnybrook began working with CDM and other city professionals in an attempt to address the concerns of the planning board. A revised subdivision proposal containing modified engineering specifications met with the approval of CDM, and on January 10, 1995, again pursuant to § 15-34, the planning board, after hearing testimony of environmental and engineering consultants and area residents and after reviewing written comments of city professionals, voted four to one to recommend approval of Sunnybrook's preliminary subdivision "subject to" seven enumerated conditions set forth in a January 12, 1995 memorandum to the council. On March 7, 1995, the council, acting as the city's plan commission under G.L.1956 § 45-23-19, held a hearing on the proposed subdivision. At the conclusion of the hearing, the five-member council voted unanimously to deny the petition.

On March 27, 1995, Sunnybrook appealed the rejection by respondents, Gerald R. Lynch, Norman J. Miranda, Rolland R. Grant, Robert D. Sullivan and Joseph S. Larisa, Jr., in their collective capacity as the council, to the Superior Court pursuant to G.L.1956 § 45-23-20. Sunnybrook alleged that the denial was arbitrary, capricious, and characterized by an abuse or a clearly unwarranted exercise of discretion, made in violation of the due process requirements of the Rhode Island Constitution and the United States Constitution, and clearly erroneous in view of the evidence on the record. On November 21, 1995, the Superior Court affirmed the decision of the council, finding that "there [was] competent evidence upon which the [council] rested its decision." On December 11, 1995, petitioner filed a notice of appeal with this Court, ¹ and on April 24, 1996, he filed a petition for issuance of a writ of certiorari. The writ was issued on September 19, 1996, and, following a hearing by a panel of this Court, the case was assigned for full briefing and oral argument.

Standard of Review

With respect to proceedings on the "Subdivision of Land," § 45-23-20 provides in pertinent part that

"[a]ny person, whether or not previously a party to the proceedings, aggrieved by a decision of a board of review, or by a decision of a plan commission from which no appeal lies to a board of review * * * may appeal to the superior court for the county in which the land is situated * * *. The court shall hear all pertinent evidence and determine the facts, and upon the facts so determined may affirm the decision, or may annul the decision if found to exceed the authority of the plan commission or board of review, or may enter such other decree as justice and equity may require."

It is well settled that the Superior Court does not engage in a de novo review of board decisions pursuant to this section. E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 284-85, 373 A.2d 496, 501 (1977). Rather, the Superior Court reviews the decisions of a plan commission or board of review under the "traditional judicial review" standard applicable to administrative agency actions. Id. at 285, 373 A.2d at 501. Judicial scrutiny on appeal "is limited to a search of the record to determine if there is any competent evidence upon which the agency's decision rests. If there is such evidence, the decision will stand." Id. at 285-86, 373 A.2d at 501. (Emphasis added.) See also Lett v. Caromile, 510 A.2d 958, 960 (R.I.1986) (observing that decision stands if record contains "any competent evidence," and noting that trial justice "lacks authority to weigh the evidence, to pass upon the credibility of witnesses, or to substitute his or her findings of fact for those made at the administrative level"). ² This Court's review of the Superior Court decision is limited "to determining whether the trial justice exceeded his or her authority under § 45-23-20." Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 290 (R.I.1993).

Discussion

The claims raised by petitioner were identical to those put forth before the Superior Court, namely, that the council's decision was arbitrary, and capricious and constituted an abuse or clearly unwarranted exercise of discretion, that the council denied petitioner a fair and impartial hearing in violation of the due process requirements of the Rhode Island and United States Constitutions, and that the council's decision was clearly erroneous in view of the evidence on the record.

In support of his first argument, petitioner maintained that the trial justice "cited but two pieces of competent evidence upon which the Council could have based its decision." The petitioner asserted that, in relying on these pieces of evidence, the trial justice misconstrued the fact that "the pivotal question is not how severe the [water drainage] problem is in the area (a factual question), but whether the proposed subdivision will impact the drainage problem (an engineering question)." We disagree with petitioner's characterization of the "pivotal question" before the trial justice, who did not err in arriving at her decision.

The trial justice addressed the following evidence that was adduced at the council hearing. First, she observed that petitioner's expert, Scott Moorehead (Moorehead), an engineer and professional land surveyor, "conceded that the potential for ground water basement flooding in this particular subdivision was the worst he had worked on for such a wide area." Moorehead's testimony was unequivocal on this point. At the hearing before the council, the following colloquy occurred between Moorehead and a council member:

"Q. Mr. Moorehead, have you been associated with any proposed developments where the potential ground water basement flooding before the development was built appeared to be worse than the situation here?

"A. Where the existing condition was worse than this?

"Q. Yes.

"A. I cannot think of one where it was worse on such a wide area."

Second, the trial justice pointed out that "members of the Council also based their decision on personal knowledge of the poor drainage history of the proposed site." The trial justice correctly cited our decision in Perron v. Zoning Board of Review of Burrillville, 117 R.I. 571, 576, 369 A.2d 638, 641 (1977), in which we held that evidence gleaned from the personal observations of zoning board members constituted "legally competent evidence upon which a finding may rest * * * if the record discloses the nature and character of the observations upon which the board acted." See also Dawson v. Zoning Board of Review of Cumberland, 97 R.I. 299, 302-03, 197 A.2d 284, 286 (1964) ("when a board of review has made an inspection of premises and disclosed in the record the conditions and circumstances it observed * * * this court will treat such conditions and circumstances so disclosed * * * as constituting legal evidence capable of sustaining a board's decision in an appropriate case"). The trial justice found, and petitioner's counsel conceded at oral argument, that council members may rely on their own expertise to the same degree and under the same conditions as can members of a zoning board. Contrary to the assertion that the council members here "didn't make any observations" that met the Perron standard, our review of the record revealed that several council members made detailed personal observations. For example, Councilman Miranda stated that he and Councilman Sullivan had traveled to the area of the proposed subdivision on an occasion two days after a rainfall, "and there was no doubt in my mind that that land was [still] wet." Several members of the council reported their personal knowledge that the area of the proposed subdivision was a high-density water area and that neighbors in the area had experienced flooded basements and had expressed concerns about any proposed development in the area. Moreover, Councilman Sullivan disclosed that he had walked the neighborhood in the past and familiarized himself with the...