ANTHONY PROPERTIES v. Zoning Bd. of Review

• Decision Date: 24 June 2004
• Docket Number: No. 2003-356-M.P.,2003-356-M.P.
• Citation: 853 A.2d 1226
• Parties: JEFF ANTHONY PROPERTIES v. The ZONING BOARD OF REVIEW OF THE TOWN OF NORTH PROVIDENCE et al.
• Court: Rhode Island Supreme Court

853 A.2d 1226

JEFF ANTHONY PROPERTIES v. The ZONING BOARD OF REVIEW OF THE TOWN OF NORTH PROVIDENCE et al.

No. 2003-356-M.P.

Supreme Court of Rhode Island.

June 24, 2004.

Robert J. Cosentino, Esq., Providence, for Plaintiff.

William A. Gosz, Esq., Providence, Maria Barbato, Esq., for Defendant.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, FLAHERTY, and SUTTELL, JJ.

OPINION

PER CURIAM.

The plaintiff, Jeff Anthony Properties (Anthony Properties or plaintiff), seeks review by writ of certiorari of a Superior Court judgment dismissing its complaint and granting summary judgment. The Superior Court granted summary judgment in favor of Robert P. Barbato and Maria Barbato, intervenors in the plaintiff's appeal from a decision of the Zoning Board of Review of the Town of North Providence (the zoning board), on the grounds that the plaintiff failed to perfect the appeal.

This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of the litigants and examining the record and the memoranda filed by the parties, we are of the opinion that cause has not been shown. Because we hold that a statutory ten-day notice requirement is not jurisdictional, particularly when an ambiguity exists in its text, we quash the judgment of the Superior Court.

Facts and Travel

Anthony Properties filed an application with the zoning board in March 2002 for a special-use permit or variance to construct a one-story addition to an existing structure at 1385 Mineral Spring Avenue in the town of North Providence. The relief requested included an extension of the zoning district and an extension to a legal, nonconforming use. A hearing on the application was held on June 20, 2002, before the zoning board. The intervenors, Maria and Robert P. Barbato (the Barbatos or intervenors), own abutting property.¹ At the hearing, the Barbatos presented a real estate consultant and a traffic engineer to testify against the application. The zoning board made its decision denying Anthony Properties' application on August 20, 2002. The decision was recorded with the town clerk for North Providence on August 27, 2002. In its decision denying the application, the zoning board found that granting the special-use permit would adversely affect the property values in the surrounding area and increase the traffic congestion at an adjacent intersection. The zoning board also found that Anthony Properties' proposed use did not comply with the town's comprehensive plan. The five members of the zoning board voted unanimously to deny the application.

Anthony Properties appealed the zoning board's decision by filing a complaint in Superior Court on September 9, 2002, within the time prescribed for appeals by G.L.1956 § 45-24-69(a).² The next day, Anthony Properties had a constable serve each member of the zoning board with a summons and a copy of the Superior Court complaint. Also, on October 22, 2002, Anthony Properties sent notice to nearby landowners as required by § 45-24-69.1, which provides in pertinent part as follows:

"Appeals — Notice of appeals to superior court. — (a) Whenever an aggrieved party appeals a decision of a zoning board of review to the superior court pursuant to the provisions of § 45-24-69, the aggrieved party shall also give notice of the appeal to those persons who were entitled to notice of the hearing set by the zoning board of review. The persons entitled to notice are set forth and described in § 45-24-53.

"(b) Notice of the hearing shall be mailed to those parties described in § 45-24-53 within ten (10) business days of the date that the appeal is filed in superior court not counting Saturdays, Sundays, or holidays. Notice shall be sent by first-class mail, postage prepaid, and the cost of the notice shall be borne by the aggrieved party filing the appeal in superior court."

According to the terms of § 45-24-69.1, Anthony Properties was required to send notice to those parties described in § 45-24-53 within ten business days of filing the appeal. Anthony Properties timely filed its complaint³ in Superior Court on September 9, 2002. It failed, however, to send timely notice of the appeal; rather, it sent notice of the appeal to the Barbatos and twenty other persons "entitled to notice" on October 22, 2002. Anthony Properties recognizes that it sent its notice of appeal from the zoning board decision after the ten-day period prescribed by § 45-24-69.1 had passed, but argues that the Barbatos received notice of the appeal in time to participate fully in all proceedings before Superior Court, despite the late notice.

After receiving notice, the Barbatos filed a motion to intervene in the Superior Court proceedings, which motion was granted on November 14, 2002. On three occasions, October 18, 2002, November 22, 2002, and December 13, 2002, the matter came before the court on plaintiff's motion for a briefing schedule and to assign for a decision, but each time was continued. Then on January 7, 2003, the intervenors moved for summary judgment for the reason that Anthony Properties failed to give notice to abutters within ten days of filing its complaint as required by § 45-24-69.1. They also argued that Anthony Properties failed to proffer its affidavit attesting to compliance with the notice requirement within twenty days as required by § 45-24-69.1(d).⁴

Anthony Properties objected to the motion, asserting that the Barbatos received notice of the zoning appeal in time to participate in all proceedings in Superior Court and that the Barbatos could not show they were prejudiced by the lack of notice of the appeal within the ten-day period. The motion was heard in Superior Court on May 13 and May 29, 2003, after which the hearing justice dismissed Anthony Properties' complaint and granted summary judgment to the Barbatos. The hearing justice reasoned that

"the entire statutory scheme needs to be strictly construed, and there is no reason to believe on the information I have, and looking at the mandatory language of the statute, coupled with the exclusive town requirements, that [it] is not to be enforced. Therefore, I think as plaintiff's [sic] did not properly affect the appeal, I'll grant the Motion to Dismiss."

Anthony Properties petitioned this Court for a writ of certiorari, seeking to review the order and correct errors that it says occurred in the Superior Court. We granted the petition and issued the writ to enable the Court to review the record and determine whether the Superior Court judgment should be quashed.

Discussion

On certiorari, we limit our review to examining the record for errors of law that may have occurred at the lower court. Gregson v. Packings & Insulations Corp., 708 A.2d 533, 535 (R.I.1998); Smith v. Zoning Board of Review of Westerly, 111 R.I. 359, 367, 302 A.2d 776, 780 (1973). We do not weigh the evidence on certiorari, but only conduct our review to examine questions of law raised in the petition. Boucher v. McGovern, 639 A.2d 1369, 1373 (R.I.1994).

In this case, we are called upon to determine the strictness with which the notice terms of § 45-24-69.1 must be applied. We are also called upon to determine whether the notice requirements are sufficiently clear so a party appealing from an adverse zoning decision can comply with those requirements. "This Court reviews questions of statutory interpretation de novo." Keystone Elevator Co. v. Johnson & Wales University, 850 A.2d 912, 918 (R.I.2004) (citing State v. Fritz, 801 A.2d 679, 682 (R.I.2002)). "It is well settled that when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Id. (quoting State v. DiCicco, 707 A.2d 251, 253 (R.I.1998)). "Moreover, when we examine an unambiguous statute, `there is no room for statutory construction and we must apply the statute as written.' "Id.

"If statutory provisions appear unclear or ambiguous, however, we shall examine the entire statute to ascertain the intent and purpose of the Legislature." Cummings v. Shorey, 761 A.2d 680, 684 (R.I.2000) (citing DiCicco, 707 A.2d at 253 n. 1). "In interpreting a statute, we must `determine and effectuate the Legislature's intent and [ ] attribute to the enactment the meaning most consistent with its policies or obvious purposes.'" Keystone Elevator Co., 850 A.2d at 923 (quoting State v. Burke, 811 A.2d 1158, 1167 (R.I.2002)). "In doing so, it is firmly established that we `will not construe a statute to reach an absurd result.'" Id.

Section 45-24-69.1 is of fairly recent origin, having been enacted in 2001. See P.L.2001, ch. 209, § 2. Before this enactment, notice requirements for zoning appeals were governed by Rule 80(b) of the Superior Court Rules of Civil Procedure. See Marteg Corp. v. Zoning Board of Review of Warwick, 425 A.2d 1240, 1242 (R.I.1981)

. Rule 80 is a rule of general application to administrative appeals, and "affords a uniform appellate procedure to be followed by those who seek a Superior Court review of an administrative appeal." Marteg Corp.,

425 A.2d at 1242. The more recent statute, § 45-24-69.1, applies specifically to zoning appeals.

The motion justice framed the issue as jurisdictional: "It's simply, it seems to me, a question of whether the notice provision of the statute is [a] prerequisite to the jurisdiction of the Court." She later answered the question by noting that: "In this case the zoning appeals need to be perfected before this [c]ourt has jurisdiction." Ruling that plaintiff did not properly perfect its appeal, she dismissed its complaint. We disagree with her conclusion.

We previously have said that the procedure involved in the appeal of a zoning board decision is analogous to "that required to claim an appeal in this [C]ourt from a decision or...