Gardner v. Cumberland Town Council

• Decision Date: 30 June 2003
• Docket Number: No. 2001-290-M.P.,2001-290-M.P.
• Citation: 826 A.2d 972
• Parties: William GARDNER, et al. v. CUMBERLAND TOWN COUNCIL et al.
• Court: Rhode Island Supreme Court

826 A.2d 972

William GARDNER, et al. v. CUMBERLAND TOWN COUNCIL et al.

No. 2001-290-M.P.

Supreme Court of Rhode Island.

June 30, 2003.

Thomas Hefner, Esq., Scott Partington, Esq., Richard Kirby, Esq., Cumberland, for Plaintiff.

Mortimer Newton, Esq., for Defendant.

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

OPINION

FLANDERS, Justice.

Abandoned, unnamed, and existing only on paper, a town street—surrounded by abutting property owners—awaits its fate on this petition for certiorari. But do we have jurisdiction to review the merits of a town council's decision to abandon the street? Because such an act is legislative in nature, we answer this question in the negative. We also reject various procedural challenges to the propriety of the council's abandonment order because we conclude that, in this case, the council satisfied the statutory notice and hearing provisions. Finally, we hold that, by attending the meeting at which the council voted to abandon the road, the plaintiffs, William and Flora Gardner (the Gardners), lack standing to complain about the town's alleged failure to serve them with personal notice of the council's abandonment order.

Facts and Travel

Official maps in the Town of Cumberland (town) depicted an unnamed paper street in the town running perpendicular to Ryan Avenue and parallel to Mendon Road. The defendant David Miller and his wife (the Millers) owned property on both sides of this unnamed paper street. The Gardners operated a flower and gardening center on their property, which also abutted the unnamed paper street at its southerly end.

In 1996, the Millers petitioned the seven-member Cumberland Town Council (council) to abandon the paper street. The Gardners objected. The Millers withdrew the petition, but refiled it in 1998. Eventually, on March 4, 1998, the council referred this petition to the town's planning board, which recommended against the proposed abandonment. Thereafter, the council continued the petition several times without taking action on it. Ultimately, however, it duly notified the Gardners and other abutting owners that it would hold hearings on the petition, and publicly advertised that it would do so.

Pursuant to these notices and advertisements, the council initially convened a public hearing on the matter on April 1, 1998, but, at the Millers' request, it voted to continue the hearing for several months. The council again took up the petition, on October 7, 1998, when it heard from several witnesses, and received other evidence on the merits of the abandonment petition. It then continued the hearing on this subject to its meeting on November 4, 1998, after which it again put the matter over to its next meeting, on December 2, 1998. At this December meeting, after further discussion of the petition, the council voted unanimously to abandon the street.¹ All seven council members were present, including three members who were newly elected to their positions in November. Both the Millers and the Gardners also were present, as were their attorneys. Indeed, the attorneys for these parties expressed concern about the council's voting on the petition without the three new council members having been present at the council's previous meetings during which it heard testimony, received evidence, and heard arguments about the street in question. Nevertheless, the Gardners' attorney specifically asked the council to vote on whether the street should be abandoned. The town solicitor asked the new council members whether they felt comfortable voting on the abandonment petition at that time. The new members all said that they were familiar with the matter and felt comfortable voting on the petition. The town solicitor advised the council members that the abandonment petition presented them with the issue of whether the street had ceased to be useful to the public. Thereafter, the council voted seven to zero in favor of abandoning the unnamed paper street.

The Gardners attempted to appeal the council's order to the Superior Court. But that court dismissed the appeal for lack of jurisdiction, indicating that G.L.1956 § 24-6-1,² which addresses the abandonment of highways or driftways by towns, does not specifically provide for such a right of appeal. As a result, although the Gardners initially appealed to this Court from the Superior Court judgment dismissing their complaint, they also petitioned this Court for the issuance of a writ of certiorari to review the council's abandonment order. In response, we issued the writ and granted the Gardners' motion to consolidate their appeal with the certiorari petition. Thereafter, however, the Gardners and the Millers jointly moved to dismiss the Gardners' appeal of the Superior Court judgment, which we granted. Thus, the only case pending before us is the Gardners' petition for certiorari.

The Gardners argue that the council's vote to abandon the road was invalid and that we should deem its approval of the abandonment petition to be a nullity. They contend that: (1) the vote to abandon the unnamed paper street violated applicable legal requirements because fewer than four of the council members heard all the evidence pertaining to the petition to abandon; (2) the vote by the council was erroneous in view of the reliable, probative, and substantial evidence on the record because all who testified at the council's abandonment hearings stated that members of the public still were using the street; (3) the council applied a different standard of review in approving the petition than the one that § 24-6-1 prescribes; (4) the Millers did not prove by clear and convincing evidence that the unnamed paper street ceased to be useful to the public; (5) the council violated § 24-6-1 because it failed to serve personal notice of its abandonment order upon the Gardners after it granted the Millers' petition; and (6) the council failed to set forth in its order any findings of fact and reasons for abandoning the road.

For the reasons summarized in this paragraph and detailed in the rest of our opinion, we reject these contentions. Because the council's order to abandon the street was a "final and conclusive" legislative act, see § 24-6-1(a), we lack jurisdiction to review the merits of this decision on certiorari. In addition, the Gardners' procedural arguments fail because the council possessed a quorum when it voted in December 1998 to abandon the unnamed street in question and applicable law did not require council members voting thereon to have attended any previous hearings on this subject. In this case, we conclude, it was sufficient that the hearing minutes and the videotapes of the previous hearings on the petition were available for review by those council members who were not present at those hearings before they voted to abandon the street on December 2. Finally, the law did not require the council to set forth findings of fact or reasons for abandoning the road in its order granting the petition.

Also, the Gardners lack standing to complain about the town's alleged failure to effect personal service on them of the council's abandonment order because they and their lawyer attended the meeting at which the council members voted to abandon the unnamed paper street. Thus, because they received actual notice of the council's decision to abandon the street, they suffered no prejudice from any alleged lack of personal service on them of the order in question. Below, we elaborate on these reasons for denying the Gardners' petition for certiorari.

Analysis

I The Merits of the Council's Abandonment Order

A petition for certiorari will not lie to review an act of legislative discretion. Godena v. Gobeille, 88 R.I. 121, 126-27, 143 A.2d 290, 293 (1958). See also The Newport National Bank v. Hawksley, 92 R.I. 433, 436, 169 A.2d 616, 618 (1961); Lumb v. Zoning Board of Review of Bristol, 91 R.I. 498, 504, 165 A.2d 504, 507 (1960). "Every act involving judgment or discretion is not necessarily a judicial act even though notice and hearing be required [by statute] before such act may be performed." The Newport National Bank, 92 R.I. at 437, 169 A.2d at 618 (quoting R.I. Home Builders, Inc. v. Hunt, 74 R.I. 255, 258, 60 A.2d 496, 498 (1948)).

"The determination of whether an act is judicial or quasi-judicial and not in substance purely legislative or administrative in character depends upon the nature of the act rather than the officer or body performing it.' Where a council acts not to determine presently contested rights but to direct some action in the future on the basis of policy or expediency it is acting legislatively and not judicially." Godena, 88 R.I. at 126-27, 143 A.2d at 293 (quoting R.I. Home Builders, Inc., 74 R.I. at 258, 60 A.2d at 498).

When a town council decides to abandon a road or street because it has ceased to be useful to the public, it is acting prospectively and thus, "[w]hether it is expedient to discontinue a highway is a question for legislative decision * * *." Id. at 127, 143 A.2d at 293 (quoting 2 Elliott, Roads and Streets § 1182 (4th ed.1926)); see also Attorney General v. Shepard, 23 R.I. 9, 12-13, 49 A. 39, 41 (1901). Therefore, we lack jurisdiction on certiorari to review the Gardners' challenge to the merits of the council's decision to abandon the street in question. This is so because a town council's act in deciding whether the town should abandon a public highway because it "ceased to be useful to the public" under § 24-6-1 is a final and conclusive legislative determination that is immune from judicial review:

"[W]hen a town council acting under this statute [§ 24-6-1] passes on the question of whether a highway 'has ceased to be useful to the public,' it is in fact making a determination of the expediency of the proposed abandonment. This is an exercise of purely legislative discretion which we will not review by writ of certiorari." Godena, 88 RI. at 128,

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