E. Grossman & Sons, Inc. v. Rocha

Decision Date19 May 1977
Docket NumberNo. 74-134-A,74-134-A
CourtRhode Island Supreme Court
PartiesE. GROSSMAN & SONS, INC. v. Antone R. ROCHA et al. ppeal.
OPINION

KELLEHER, Justice.

E. Grossman & Sons, Inc. is the owner of an undeveloped parcel of land which is located in the town of Portsmouth just west of Middle Road and north of Middle Lane. The defendant, Antone R. Rocha, was the chairman of the Town of Portsmouth's Planning Board of Review. During the past 10 years three different proposals regarding the subdivision of Grossman's parcel have been presented to the town's planning board. Antone R. Escobar and his wife Mary were the owners of a farm that abuts Grossman's property. 1 Each time Grossman's proposals were considered by the town's planning board the Escobars objected to them. The Escobars were successful in two of their three appearances before the planning board. The third proposal, which concerned a proposed plat called 'Pondview Estates,' was approved by the planning board in August of 1972. The Escobars, by invoking the provisions of G.L. 1956 (1970 Reenactment) § 45-23-16, took an appeal to the planning board of review. The board of review by a 4 to 1 vote granted the Escobars' appeal, and Grossman in turn took an appeal to the Superior Court. The Escobars were permitted to intervene in the Superior Court appeal as party defendants. Subsequently, a justice of that court held a trial de novo and after reviewing the record made at the municipal level, hearing additional testimony, and taking a view, overturned the board of review's decision and reinstated the planning board's grant of Grossman's third application. In turn, the Escobars have prosecuted this appeal.

The board of review based its rejection of the proposed plat on its finding that Grossman's drainage system would not adequately protect the Escobars' property. The Pondview plat differed from the other two proposals submitted by Grossman in that it called for a subdivision of just a portion of the parcel with the remaining area to act as a buffer between the Pondview plat and the Escobars' property. One of the points of contention between the adjoining landowners was whether the so-called buffer strip would provide adequate drainage and afford protection to the Escobars from the effects of surface water runoffs. The planning board said yes, the board of review said no, and the Superior Court ruled that the Escobars had no standing to have their complaint heard by the board of review.

There are two dispositive issues in this appeal. They are (1) the Escobars' standing to appeal the planning board's decision; and (2) the scope of review available in the Superior Court. While both issues are somewhat interrelated because of the actions taken by the trial justice, we will first consider the question of standing and then discuss the various statutory provisions of ch. 23 of title 45 which pertain to planning boards, boards of review, and the appellate jurisdiction of the Superior Court.

The standing issue actually involves the Escobars' ability to obtain an administrative review of the action taken by the planning board. Earlier, in Jeffrey v. Platting Bd. of Review, 103 R.I. 578, 239 A.2d 731 (1968), and Paterson v. Corcoran, 100 R.I. 475, 217 A.2d 88 (1966), this court addressed itself to the criteria that would be used in measuring that degree of aggrievement which would enable a person to obtain the judicial review provided by § 45-23-20. In its relevant part § 45-23-20 states: 'Any person owning land in such city or town located within one thousand (1,000) feet of the subdivision involved shall have the status of an aggrieved person if the value or use of his land may be affected by the recording of such subdivision.' In Paterson we said that an individual is aggrieved provided his property is within 1,000 feet of the proposed plat and he could establish that the filing of the plat might adversely affect the use or value of his property to a substantial degree. Later, in Jeffrey, we stressed that an individual was not required to prove that his property would in fact suffer the requisite degree of harm before he could seek judicial assistance.

In the Paterson case we noted that the planning board legislation as originally enacted afforded administrative review only to a developer whose plat was rejected by the planning board but that in 1965 the General Assembly amended § 45-23-16 so that recourse to administrative review was broadened to include those who had appeared at the planning board hearing and lodged their objections to the proposals then under consideration. Section 45-23-16 makes it clear that those seeking administrative review must also satisfy the aggrievement standards of those who wish judicial review pursuant to § 45-23-20. Thus, when we apply the criteria of §§ 45-23-16 and 45- 23-20 to the Escobars, we find that (1) objections were made on their behalf at that planning board hearing; (2) they reside within 1,000 feet of the proposed plat; and (3) it is quite apparent that Pondview might pose a substantial threat to the future use and value of the Escobars' farm. When we add all these elements together, it is obvious that the Escobars claim a specific and perceptible harm which distinguishes them from the rest of Portsmouth's citizenry. They, having satisfied the criteria delineated in §§ 45-23-16 and 45-23-20, are among those persons who are entitled to be heard at the administrative review afforded to the participating objectors.

As noted earlier, the Superior Court hearing was a full-blown trial where numerous witnesses appeared and testified. Rocha, the named defendant in this case, had dissented from the conclusion reached by the majority of the board of review. He told the trial justice of his disappointment with the position taken by his colleagues and reported that his disappointment had caused him to resign from the chairmanship. He also described the give and take that went on within the board as the members discussed the evidence that had been presented at the hearings. Anoher member of the board, who succeeded Rocha as chairman, testified and contradicted much of what the ex-chairman had reported. Other witnesses in the Superior Court were the engineer who had prepared all three of Grossman's proposed subdivisions and an engineer who appeared in behalf of the Escobars.

The trial justice in her rescript reported that she was impressed by the testimony given by Grossman's expert and found '* * * that it is more probative, credible and convincing than that of the escobars' expert.' The trial justice also disclosed that '(t)he Court finds as a fact, based upon the evidence which it finds to be most probative, credible and convincing, that the anticipated run- off from the proposed subdivision will be adequately dissipated within this undeveloped strip and the impact, if any, on the Escobar land will not aggravate the existing condition to the extent that it may affect the value or use of their land.' The trial justice concluded that the Escobars, having '* * * failed to produce probative, credible or convincing evidence that the value or use of their land may be affected by the recording of the proposed subdivision,' had no standing to appeal to the board of review and no standing to contest the matter in the Superior Court, and as a result '* * * the Board of Review exceeded its authority and acted arbitrarily in sustaining the appeal of the Escobars and overruling the decision of the Planning Board.'

In finding no aggrievement on the part of the Escobars, the trial justice relied on the in-court testimony of Grossman's engineer, who convinced her that his plans and specifications should have assuaged the Escovars' fears about the surface water flowing onto their property and eroding their soil and terrain. What the trial justice actually did in this case was to conduct a trial de novo wherein she rejected the testimony presented by the Escobars and accepted that offered by Grossman. Her ultimate finding that the Escobars are not aggrieved because they failed to prove that they may be harmed was in actuality a finding that Grossman's project posed no danger whatsoever to those whose property is located within 1,000 feet of Pondview. It is our belief that the trial justice's mistake as to the Escobars' lack of standing is the result of her having embarked upon a type of judicial review that was never authorized by the General Assembly.

The Scope of Judicial Review

Before zeroing in on the scope of judicial review, we must first give a brief delineation of the administrative processes set forth in ch. 23 of title 45. The General Assembly has authorized each city and town to establish a 'planning agency,' which in turn can promulgate rules and regulations that will control subdivision of land within the municipal boundaries. 2 Any local legislature, with the exception of West Greenwich's, that adopts subdivision ordinances and appoints a planning board must also establish a board of review. 3 The board of review is authorized to (1) hear and decide appeals taken from any order, requirement, or decision made by the planning board in the enforcement of the ordinance or its rules; (2) grant special exceptions to the planning board's rules; or (3) on an appeal, grant a variance to the application of the terms of the planning board's rules and regulations, and in the exercise of these powers the board of review can '* * * reverse or affirm wholly or partly or may modify the decision appealed from and make such order, requirement, decision or determination as ought to be made and to that end shall have all the powers of the plan commission from whom the appeal was taken.' (Emphasis added.) Section 45-23-18.

It is obvious from the...

To continue reading

Request your trial
227 cases
  • Scittarelli v. Providence Gas Co.
    • United States
    • United States State Supreme Court of Rhode Island
    • 16 Junio 1980
    ...... Geremia v. Benny's, Inc., R.I., 383 A.2d 1332, 1334 (1978); Plouffe v. The Goodyear Tire & Rubber ......
  • Montuori v. Narragansett Elec. Co., 77-286-A
    • United States
    • United States State Supreme Court of Rhode Island
    • 5 Agosto 1980
    ......389, 398, 374 A.2d 774, 778 (1977), and Sweet v. Hemingway Transport, Inc., 114 R.I. 348, 355, 333 A.2d 411, 415 (1975). Montuori v. Narragansett ......
  • Green Development, LLC v. Town of Exeter Zoning Board of Review
    • United States
    • Superior Court of Rhode Island
    • 20 Abril 2020
    ...applicable to administrative agency actions." Restivo v. Lynch, 707 A.2d 663, 665 (R.I. 1998) (quoting E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 284-85, 373 A.2d 496, 501 (1977)). Judicial review of an administrative agency is essentially an appellate proceeding. Notre Dame Cemetery ......
  • Restivo v. Lynch
    • United States
    • United States State Supreme Court of Rhode Island
    • 29 Enero 1998
    ...... E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 284-85, 373 A.2d 496, 501 (1977). ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT