Caran v. Freda

• Decision Date: 21 July 1971
• Docket Number: No. 1264-M,1264-M
• Citation: 108 R.I. 748,279 A.2d 405
• Parties: Anthony CARAN et al. v. Alvaro FREDA et al. P.
• Court: Rhode Island Supreme Court

Page 405

279 A.2d 405

108 R.I. 748

Anthony CARAN et al. v. Alvaro FREDA et al.

No. 1264-M.P.

Supreme Court of Rhode Island.

July 21, 1971.

Francis R. Foley, Pawtucket, for petitioners

Lavine & Sutherland, Pamela Macktaz, Woonsocket, for individual respondents.

Thomas J. Grady, Town Sol., Cumberland, for respondent Zoning Bd. of Review.

OPINION

KELLEHER, Justice.

We have issued certiorari so that we may consider an issue of considerable interest to the bench, bar and public of this state. It arises from the enactment of P.L.1969, chap. 239, sec. 48, which substituted the Superior Court for this court as the tribunal having the original jurisdiction to review zoning board decisions. Formerly, an appeal from a zoning board's decision was to this court by way of a statutory petition for certiorari. After the 1969 amendment became effective, the appellate jurisdiction of the Superior Court was to be invoked by the filing of a complaint in that court.

The records certifired to us disclose that on May 13, 1970, the Cumberland Zoning Board of Review conducted a public hearing on an application for a variance or an exception which would authorize the construction of a moderately-sized shopping center. Several of the owners of real estate abutting the proposed shopping-center site hired an attorney. He appeared at the hearing, entered his appearance for his clients and voiced their objections to the grant of the pending application. At the conclusion of the hearing, the board took no action on the application but deferred its decision to a later date. On August 5, 1970, the board filed its decision denying the application.

The applicants took a timely appeal from the zoning board's denial by filing their complaint in the Superior Court. A copy of the complaint was served upon the Cumberland town solicitor. The applicants did not send a copy of the complaint to the attorney who had represented the protestants at the zoning board hearing.

Subsequently, the protestants filed a motion to dismiss the appeal because of applicants' failure to comply with the provisions of Super.R.Civ.P. 80(b). In essence, Rule 80(b) states that whenever review of any administrative action is sought, the time in which review may be sought shall be as provided by law and a copy of the complaint shall be served upon the appropriate governmental agency or office and upon all other parties to the proceeding to be reviewed. The trial justice denied the protestants' motion to dismiss and they filed this petition for certiorari.

The protestants stress that they were parties to the proceeding before the zoning board and as such, they should have received a copy of the complaint filed in the Superior Court. The applicants, however, refer us to M. & L. Die & Tool Co. v. Board of Review, 76 R.I. 417, 71 A.2d 511, where we said that a party who receives a favorable decision from a zoning board is not a person who has been 'aggrieved' by the board's decision and may not appear as a matter of right in any certiorari proceeding before us when we were reviewing the board's action. The applicants then contend that since the protestants prevailed before the zoning board, they are not aggrieved parties and the rule, when it speaks of 'parties,' really means 'aggrieved parties.'

The applicants have failed to put the M. & L. Die & Tool Co. case in a true perspective. It was decided many years prior to the adoption of the Superior Court's Rules of Civil Procedure. The question presented then was whether the successful protestants before the Newport Zoning Board would be permitted to file a brief and argue their cause before us. We recognized that procedural rules involving zoning cases should be liberally construed when we said:

'This court has indicated that an owner of land who may be specially affected by a change in zoning regulations should ordinarily have an opportunity in the interest of justice to be heard not only before the board but elsewhere if necessary. On this point a liberal practice in this jurisdiction has generally been followed.' (Emphasis ours.) Id. at 421, 71 A.2d at 513.

It should be remembered, however, that when Rule 80 was promulgated, zoning appeals were heard in the Supreme rather than the Superior Court. Rule 80 is designed to provide a uniform appellate procedure in the Superior Court for judicial review of administrative action whether the review is instituted pursuant to the Administrative Procedures Act, or any other statute applicable to specific agencies and is patterned after similar provisions found in the Maine Rules of Civil Procedure. 1 Kent, R.I.Civ.Prac. at 545.

Although the Administrative Procedures Act, chap. 35 of title 42, relates only to state agencies and not municipal zoning boards, it is helpful in determining the question pending before us in this cause. Section 42-35-15(b) in speaking of judicial review says that such an action shall be instituted by filing a complaint in the Superior Court for Providence County with copies of the complaint to be served upon the agency and 'all other parties of record.' The Maine Rule (Me.Civ.Prac. 80B) specifies that written notice of the claim of review and a copy of the complaint shall be given to the opposite party. The term 'opposite party' apparently includes any private individual who appeared before the administrative agency as an adversary of the appellant. Field & McKusick, Me.Civ.Prac. § 80B.4 at 605.

We believe that petitioners are in the language of Rule 80(b) 'other parties to the proceeding' and consequently their attorney should have been furnished with at copy of the applicants' complaint. The rule contemplates that the copy will serve as a notice to all adversary parties at the administrative hearing that an appeal has been taken. In order to benefit from the rule, we deem it necessary that the record of the zoning board show that the individuals who appeared at the zoning hearing are there as adversaries of the appellants. In other words, a person who appears at a zoning board hearing...