Bourque v. Dettore

• Decision Date: 11 April 1991
• Docket Number: No. 89-193-M,89-193-M
• Citation: 589 A.2d 815
• Parties: Steven P. BOURQUE v. Raymond DETTORE, Jr., et al. P.
• Court: Rhode Island Supreme Court

Page 815

589 A.2d 815

Steven P. BOURQUE v. Raymond DETTORE, Jr., et al.

No. 89-193-M.P.

Supreme Court of Rhode Island.

April 11, 1991.

James W. McKay and Edward L. Maggiacomo, Adler, Pollock & Sheehan, Inc., Providence, for petitioner.

David Curtin and Edward Clifton, for the City of Providence.

OPINION

SHEA, Justice.

This matter comes before the Supreme Court on a petition for certiorari, challenging the denial of a license by the Providence Board of Licenses. We affirm.

The petitioner, Steven P. Bourque (Bourque), is the owner of a parcel of real estate located at 61 Pilsudski Street in Providence, Rhode Island. This lot, designated by the Zoning Ordinance of the City of Providence as M-1, general industrial use, is adjacent to an R-3 general residential zone.

On December 12, 1988, Bourque filed an application with the Providence Board of Licenses requesting a license to operate a "white goods" recycling facility pursuant to G.L.1956 (1987 Reenactment) chapter 21 of title 5, and article VII, § 14-127 through 14-145 of the Providence Code of Ordinances. White-goods salvage involves the reclamation of large household appliances such as refrigerators, stoves, air conditioners, and microwaves. The operation was to consist of extracting from the appliances capacitors containing polychlorinated biphenyls (PCBs). ¹ Four separate public hearings were held by the Providence Board of Licenses (board) between January and April of 1989. On April 5, 1989, the board denied the application, relying on its finding that a legal remonstrance existed pursuant to § 5-21-2(b). The board explained that according to a report from the Providence police department, 53.7 percent of the neighbors within the statutorily designated radius (200 feet) of the property in question objected to petitioner's application and that, therefore, the issuance of the license must be denied.

A petition for writ of certiorari was filed on May 11, 1989. On January 4, 1990, we granted certiorari to address two issues: whether the licensing regulations of § 5-21-2 are an unconstitutional delegation of legislative authority and whether the licensing regulations of § 5-21-2 violate either the due-process or the equal-protection clause of the United States or Rhode Island Constitution.

We first consider the delegation issue. The nondelegation doctrine stems from article IV, sections 1 and 2, of the Rhode Island Constitution, which provide that the Rhode Island Constitution "shall be the supreme law of the state" and that the legislative power thereunder shall be vested in the two houses of the Legislature. The purpose of the nondelegation doctrine is twofold: to ensure that basic policy choices will be made by duly authorized and politically responsible officials and to protect citizens against arbitrary and discriminatory action by public officials. See Davis v. Wood, 427 A.2d 332, 335 (R.I.1981). Under the doctrine, therefore, any unbridled delegation of legislative power by the General Assembly is unconstitutional and void. Metals Recycling Co. v. Maccarone, 527 A.2d 1127, 1129 (R.I.1987) (citing City of Warwick v. Warwick Regular Firemen's Association, 106 R.I. 109, 256 A.2d 206 (1969)). As a practical matter, however, the doctrine does not absolutely prohibit the delegation of legislative power so long as the delegation is reasonable. We have previously recognized the Legislature's need to employ administrative agents in order to effectuate the beneficial purposes of legislation: "[T]he problems which a modern legislature must confront are of such complexity that strict adherence to ideal notions of the nondelegation doctrine would unduly hamper the General Assembly in the exercise of its constitutionally vested powers." Milardo v. Coastal Resources Management Council, 434 A.2d 266, 270 (R.I.1981) (quoting Adams v. North Carolina Department of Natural & Economic Resources, 295 N.C. 683, 696-97, 249 S.E.2d 402, 410 (1978)).

In determining whether the legislative delegation in § 5-21-2 is unconstitutional, we examine the specificity of the functions delegated, the standards accompanying the delegation, and the safeguards against administrative abuse. Milardo, 434 A.2d at 271. Consequently the delegation of legislative power will be upheld if the statute "declares a legislative purpose, establishes a primary standard for carrying out the use, or lays out an intelligent principle to which an administrative officer or body must conform." Davis, 427 A.2d at 336. As long as the Legislature demonstrates standards or principles to confine and guide the agency's power, this court will, as we have in the past, sustain the delegation. Id. (citing First Republic Corp. of America v. Norberg, 116 R.I. 414, 358 A.2d 38 (1976); J.M. Mills, Inc. v. Murphy, 116 R.I. 54, 352 A.2d 661 (1976)).

Section 5-21-2(b) provides in relevant part:

"No license shall be granted under this chapter to the keeper of any shop or storehouse for the reception of any junk, old metals, or other second-hand articles or to a person establishing, operating or maintaining an automobile junkyard, in any location not lawfully occupied for that purpose at the time of the application for the license, where the owners or occupants of the greater part of the land within two hundred feet (200') of that building or place shall file with the board, town council, or city council, respectively, having jurisdiction to grant licenses, their objection to the granting of the license." ²

Bourque contends that § 5-21-2(b) violates the nondelegation doctrine of the Rhode Island Constitution because of its failure to set forth standards or relevant considerations to guide the licensing board in its determinations. He further argues that this case is controlled by Metals Recycling Co. v. Maccarone, 527 A.2d 1127 (R.I.1987), where this court held that § 5-21-1, governing renewal and revocation of secondhand dealers' licenses, was unconstitutional as an improper delegation of legislative authority. In Metals Recycling Co., this court determined that the statutory delegation to a town or city council authorizing the "issuing or revocation at pleasure of licenses" constituted an unbridled delegation of legislative power. Id. at 1129.

No such unconstrained legislative delegation is present in the case at bar. First of all, § 5-21-2(b) is limited in scope. The local licensing authority is empowered under this statute to regulate only "keeper[s] of any shop or storehouse for the reception of any junk, old metals, or other second-hand articles" and persons "establishing, operating or maintaining an automobile junkyard." By its terms the statute confers the limited function of granting a license to these specific applicants after posted or published notice, with a public hearing, and upon the payment of a nominal licensing fee. The statute clearly contemplates that such license will be freely granted unless "the owners or occupants of the greater part of the land within two hundred feet * * * shall file * * * their objection." Section 5-21-2, unlike the statute in Metals Recycling Co., delegates clear and precisely defined functions. The specificity of the statute's language creates inherent limitations on the authority of the board and ensures against the possibility of administrative abuse. "[W]hen the delegation of legislative power to an administrative agent is accompanied by sufficient standards or safeguards to prescribe the exercise of that power, the delegation will be deemed reasonable and lawful." State v. Peloquin, 427 A.2d 1327, 1330 (R.I.1981). Consequently we find no reason to declare § 5-21-2 unconstitutional as an improper delegation of legislative power. ³

Alternatively Bourque asserts that the procedure under § 5-21-2 vesting "neighbors" with the right to veto license grants violated his due-process rights because it impermissibly delegated governmental authority to private citizens. This argument assumes that the operation of § 5-21-2 deprived Bourque of "liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1. At the outset we do not believe that the due-process clause constrains the state's prerogative to limit a person's privilege to conduct offensive land uses or highly regulated enterprises. Clearly Bourque has no "entitlement" to operate the proposed recycling facility that would implicate a property interest, nor does his license application involve a "fundamental" or "natural" right that might be characterized as a protected property interest. Nevertheless, we do recognize that at some point the arbitrary and capricious nature of a private entity's actions, resulting from a standardless delegation of legislative authority, might constitute a due-process violation. Grendel's Den, Inc., v. Goodwin, 662 F.2d 88, 90 n. 4 (1st Cir.1981), aff'd on other grounds sub. nom., Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982).

In alleging that the neighbors' veto constitutes a substantive due-process violation, Bourque relies on two cases: Eubank v. City of Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912), and Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928). In Eubank the United States Supreme Court invalidated a city ordinance that empowered two-thirds of the property owners on any block to establish, within a specified range, a building-setback line. The purpose of the statute was to limit construction in close proximity to streets. However, the Court found that the conferral of authority to those property owners had a tenuous connection to the public safety, convenience, and welfare. Recognizing that the statute and ordinance virtually authorized property owners to indulge in "caprice" or "taste" when arbitrarily selecting the location of the setback line, the Court concluded, "It is hard to understand how public comfort or convenience, much less public health can be...