Bassi v. Zoning Bd. of Review of City of Providence
| Decision Date | 19 November 1970 |
| Docket Number | Nos. 937-M,s. 937-M |
| Citation | 107 R.I. 702,271 A.2d 210 |
| Parties | Frank BASSI et ux. v. ZONING BOARD OF REVIEW OF the CITY OF PROVIDENCE. P., 963-Appeal. |
| Court | Rhode Island Supreme Court |
We review a Superior Court judgment sustaining an August 4, 1969 decision of the Providence Zoning Board of Review granting Charles H. Gagnier an exception authorizing the construction of a 2800-square-foot addition to an existing garage repair shop.
The travel of the case merits recitation. Within the time limits and in conformity with the procedures established by G.L.1956, § 45-24-20, Frank Bassi and his wife, remonstrants before the zoning board, petitioned this court to review that board's decision. We granted that petition, but before the case could be heard § 45-24-20, the controlling statute on judicial review of administrative decisions in zoning matters, was amended by the enactment of P.L.1969, chap. 239, sec. 48. That amendment substituted the Superior Court for this court as the tribunal having original appellate jurisdiction to review zoning board decisions. After the amendment took effect we directed the parties to show cause why the pending petition should not be remanded to the Superior Court there to be heard pursuant to the provisions of the amended statute. No cause was shown and we remanded the case to the Superior Court to be heard forthwith. R.I., 257 A.2d 788.
As provided by the amended statute, the case was heard in the Superior Court before a trial justice sitting without a jury. In reliance upon the record of the hearing before the zoning board as well as upon additional evidence heard by him, he decided the case favorably to Gagnier and affirmed the zoning board's decision. The Bassis, doubtful of the proper procedure to be followed for obtaining review in this court, claimed an appeal under § 9-24-1 P.L.1965, chap. 55, sec. 41, now G.L.1956 (1969 Reenactment § 9-24-1), and in addition moved for leave to file a petition for certiorari. We granted their motion and ordered the hearing on certiorari to be consolidated with that on the appeal. Because the mothod of reviewing zoning cases in this court under § 45-24-20, as amended, was a question of first impression, we also directed the parties to argue the question of how a litigant, dissatisfied with a Superior Court determination of a zoning appeal, might obtain review in this court. R.I., 260 A.2d 724.
At the threshold we consider the procedural question. Prior to the 1969 amendment of § 45-24-20, the Supreme Court had exclusive and original appellate jurisdiction to review zoning board decisions, and a person aggrieved by the action of a zoning board was entitled as of right to a review by this court on statutory certiorari. Buckminster v. Zoning Board of Review, 68 R.I. 515, 30 A.2d 104. That procedure was changed by the 1969 amendment. It makes the Superior Court the initial judicial reviewing tribunal, and provides that an appeal from a zoning board decision may be claimed by an aggrieved party by the filing of a complaint setting forth his reasons of appeal. Although explicit on the procedures which then follow in that court, the amendatory legislation is silent on whether a party dissatisfied with the disposition there made may obtain review in this court.
In support of their position that they are properly here on appeal, the Bassis argue that the amendment of § 9-24-1 was earlier in point of time than the amendment of § 45-24-20, that it provided an adequate means for appealing Superior Court adjudications in zoning matters, and that there was, therefore, no reason for the legislature in amending § 45-24-20 to provide what had already been provided for in § 9-24-1.
Section 9-24-1 was a part of the substantial amendatory legislation (P.L.1965, chap. 55) which was enacted in order to make the statutes regulating civil procedure conform to the revised Superior Court Rules of Civil Procedure. 1 Kent, R.I. Civ.Prac., Appendix C, p. 631. That statute provides that:
'Any party aggrieved by a final judgment, decree, or order of the superior court in any civil action, may, within the time prescribed by applicable procedural rules, appeal to the supreme court.' (Emphasis supplied).
Whether that language permits appeals from the Superior Court to this court in zoning cases hinges, of course, on whether an appeal to the Superior Court from a zoning board constitutes a 'civil action.' Nothing in § 9-24-1 says that it is. Moreover, the parties have not pointed to, nor have we been able to find, any provision elsewhere in the amendatory legislation, or indeed in the rules themselves, which in any way even remotely suggests that an appeal from a decision of a zoning board to the Superior Court is a civil action, or that the detailed appellate procedures spelled out in § 9-24-1, are applicable to appeals from zoning board decisions.
We have, then, a situation where the legislature gave the Superior Court original appellate jurisdiction in zoning matters, but made no provision for its judgments in those matters to be appealed. To thus limit the right of appeal was, of course, within its power. It is, after all, the legislature which under the constitution has complete control over the distribution of powers among the courts of the state subject only to the provision of Art. XII of amendments to the state constitution which expressly reserves to this court the power to exercise 'final, revisory, and appellate jurisdiction upon all questions of law and equity.' Higgins v. Tax Assessors, 27 R.I. 401, 402-403, 63 A. 34-35. To make effective that revisory and appellate jurisdiction over inferior tribunals, that amendment also gives this court the power to issue prerogative writs. Higgins v. Tax Assessors, supra at 404, 63 A. at 35.
One of those prerogative writs is certiorari. That writ in this state is an extraordinary process whose office is not confined to the common-law writ of certiorari, but includes, as well, whatever extension is appropriate to a proper implementation of this court's board and complete supervisory powers. Hyde v. Superior Court, 28 R.I. 204, 66 A. 292. Within its purview lies the authority to correct and prevent errors and abuses of inferior tribunals '* * * where no other remedy is expressly provided by law * * *.' Hyde v. Superior Court, supra at 211, 66 A. at 295. That function is appropriate in this case where we have an alleged abuse or error which, in the absence of an express method for...
To continue reading
Request your trial
-
Blackstone Park Imp. Ass'n v. State Bd. of Standards and Appeals
...of an administrative action is essentially an appellate proceeding and not a civil action. Previously, in Bassi v. Zoning Board of Review, 107 R.I. 702, 705, 271 A.2d 210, 212 (1970), when construing G.L.1956 (1969 Reenactment) § 9-24-1 relating to appeals of a "final judgment, decree or or......
-
Hassell v. Zoning Bd. of Review of City of East Providence
...are not appealable as of right and may only be reviewed in this court by use of the prerogative writ of certiorari. Bassi v. Zoning Board of Review, R.I., 271 A.2d 210. This is a discretionary writ which will not issue unless the applicant has been aggrieved by the judgment to be reviewed. ......
-
Kirby v. Planning Bd. of Review of Town of Middletown
...certiorari." Gaschen v. Zoning Bd. of Review of Cumberland, 499 A.2d 419, 419 (R.I.1985) (order) (citing Bassi v. Zoning Bd. of Review of Providence, 107 R.I. 702, 271 A.2d 210 (1970)). This practice accords with the statutory provisions for judicial review of administrative agency decision......
-
Tarbox v. Zoning Bd. of Review of Jamestown
...obtaining review of such a judgment is to petition this Court for a writ of certiorari. See id.; Bassi v. Zoning Board of Review of Providence, 107 R.I. 702, 706, 271 A.2d 210, 213 (1970).The plaintiffs dispute this conclusion and point to provisions of the act that they suggest support the......