Hester v. Timothy

• Decision Date: 08 April 1971
• Docket Number: Nos. 919-M,s. 919-M
• Citation: 275 A.2d 637,108 R.I. 376
• Parties: James D. HESTER et ux. v. Edgar H. TIMOTHY et al. (two cases). P., 920-M.P.
• Court: Rhode Island Supreme Court

Page 637

275 A.2d 637

108 R.I. 376

James D. HESTER et ux. v. Edgar H. TIMOTHY et al. (two cases).

Nos. 919-M.P., 920-M.P.

Supreme Court of Rhode Island.

April 8, 1971.

Smith & Smith, Z. Hershel Smith, Providence, Edward M. Botelle, Westerly, for petitioners.

William H. Leslie, Jr., Wakefield, Hogan & Hogan, Thomas S. Hogan, Providence, for respondents.

OPINION

KELLEHER, Justice.

We have consolidated these two common-law petitions for certiorari. Their common and ultimate goal is the reversal of a decision of the South Kingstown Zoning Board whereby the Board permitted a parcel of land zoned residential to be used as a trailer campground. The writs issued and the Board's record as well as those of the Superior Court have been certified to us. As will be seen, this litigation might be entitled 'The Case of the Mixed-Up Mail.'

On August 5, 1969, the heirs of William H. Webster filed an application for an exception to a zoning ordinance whereby they proposed to operate 'Camp Sites, For use by campers, self contained, and non self contained' on two contiguous parcels of land that had been owned by the Webster family for over a half century. One parcel contains six acres while the second tract consists of some 258 acres. The small parcel fronts on Worden's Pond Road. The larger parcel lies to its rear. Worden Pond ¹ is a large body of fresh water. It runs along the northerly edge of the road.

The Hesters own and reside on property abutting the Webster land. They and several other property owners appeared at the hearing and voiced their objections to the pending application. Fears were expressed that the 'campsites' would create sewerage and drainage problems. It was also suggested that the proposed use would constitute a threat to the safety of the children living nearby.

Understandably, the Webster heirs took a contrary view. They presented testimony which showed that the campsites would be adequately illuminated at night; that trash which was to be placed in covered containers would be picked up daily and that certain sanitary facilities would be built. The heirs' spokesman said that five campsites would be established: one on the front parcel with the other four being located somewhere on the back parcel. Their real estate agent, when asked if the campsites would depreciate the surrounding area, replied that 'personally he would not hesitate to sell property or take a listing from an abutting property owner.'

Since one of the members of the Board stated that he wished to see the land in question, the hearing was adjourned to meet on Saturday morning, August 23, 1969, at the Webster property. The Board viewed the locus and granted the application. The Board stipulated that 'no trailer park sites' would be located on the front six-acre parcel. The Board's decision also incorporated certain rules and regulations that the owners intended to adopt once the camp became operable. The rules contain such diversified directives as 'Leave sites free of debris.' 'Respect your neighbor,' 'No outdoor burning,' 'All speed limited to five miles per hour on all premises,' and 'No hunting or target practice on grounds.' One of the rules made part of the Board's decision established the launching fee to be charged campers who might bring their boats into the camp area. (One of the heirs operated a boat livery on the shore of Wordens Pond.)

At the time the Board's decision was reached, the applicable statute ² relating to appeals from the South Kingstown Zoning Board was P.L.1950, chap. 2490, sec. 9. This statute provided that anyone aggrieved by a decision of a zoning board might seek a review by filing with this court a petition for certiorari. It also specifies that the petition shall be presented to us within 30 days after the 'making' of the decision.

We have said that the 1950 legislation was applicable after a careful consideration of certain actions taken by the Legislature at its January 1969 session. On May 16, 1969, P.L.1969, chap. 239, known as 'An Act Providing for the Reorganization of the Judicial System of the State of Rhode Island,' became law. Section 48 thereof provides that an appeal from a decision of a zoning board shall be heard by the Superior Court in the county in which the board is situated. Any such appeal must be taken by filing a complaint in the Superior Court within 20 days after the decision has been filed in the office of the board. The new appeal provisions became effective at one minute past noon September 15, 1969, and are applicable to all zoning boards in this state regardless of whether they are organized pursuant to the general enabling statute or a special act.

The Hesters, in taking an appeal from the Zoning Board's decision, acted with a superabundance of caution. On September 19, 1969, the 27th day after the Zoning Board's decision, the Hesters filed a complaint in the Superior Court for Washington County. On the same day, their attorney mailed a petition for certiorari to this court. This court and its offices are located on the seventh floor of the Providence County Courthouse. The mailman, like any mortal, can make an error. He did here. He delivered the envelope containing the Hesters' petition to the Superior Court clerk's office. The Superior Court for Providence County is also situated in the same building as we are. Its clerk's office is on the fifth floor.

Once the mail reached the fifth floor, the postman's error was compounded. Someone in the clerk's office opened the Hesters' envelope and looked at the petition. The Hesters' petition was entitled as follows:

'State of Rhode Island Washington, Sc.

Supreme Court

'James D. Hester and Virginia M. Hester

-vs-

Royal Gould, Harold Burkholder Bernard Poppe Kimball Green Albert Saunders and Frederick Jackson, Individually and Collectively as members of the Zoning Board of Review of the Town of South Kingstown, and John E. DiPretoro, Clerk

'Petition for Writ of Certiorari'

Apparently, it was decided that the petition was a zoning appeal which under the new amendment should have been filed in the Superior Court for Washington County. The words 'Supreme Court' were stricken from the title of the petition and the words 'Superior Court' were substituted in their place. The petition was then mailed to the clerk of the Superior Court for Washington County. On September 23, 1969, the Hesters' attorney contacted our clerk's office and discovered that the petition had not arrived. The attorney came to the clerk's office immediately and filed a duplicate petition-one day after the 30 day appeal period had expired. We issued our writ on September 26, 1969.

On October 8, 1969, the Board filed a motion in this court to dismiss the petition and quash the writ previously issued. We took no action on this motion because on October 14, 1969, we held a hearing on an order previously entered whereby we gave the parties in all zoning appeals then pending before us an opportunity to show cause why their appeal might not be remanded to the Superior Court for a hearing in that court pursuant to the provisions of the new Act. If counsel agreed that the pending appeal presented a pure question of law, we would retain the appeal. If the adequacy of the record was questioned, the appeal would be remanded to the Superior Court. It was on this basis that we remitted the Hesters' appeal to the Superior Court. We took this action so that the litigants might have the benefit of that portion of the new legislation which permits the Superior Court to remand the cause to a zoning board for the purpose of taking additional evidence and a possible modification by the board of its decision after its consideration of the new evidence.

The Superior Court's dismissal of Hesters' petition for certiorari was based on the trial justice's conclusion that as of 12:01 p.m. on September 15, 1969, the Supreme Court was divested of jurisdiction to hear any pending zoning appeals. The trial justice dismissed the Hesters' Superior Court appeal on the grounds that their complaint had bot been filed within the 20 days of August 23, 1969.

Following the dismissals, we issued the present petitions for certiorari. One is to review the denial of the statutory petition for certiorari; the other is to consider the dismissal of the complaint filed in the Superior Court.

We believe that the dismissals were proper, however, our conclusion is based upon reasons far different than those enunciated by the trial judge. The 1969 amendment constitutes a new statute of limitations for zoning appeals. Long age we cited the familiar rule of construction that statutes of limitations are to be held to be prospective only in their application unless by their express terms or necessary implication they shall be held to express a legislative intent that retroactive effect is to be given them. Rotchford v. Union R.R., 25 R.I. 70, 54 A. 932. Here, the Legislature expressly declared that the new amendment, though passed in the Spring of 1969, would not take effect until mid-September. This interval was notice to all that a new period of limitation would be in force from and after the latter date. We therefore hold the new statute is applicable to persons aggrieved by zoning board decisions which were filed after 12:01 p.m. September 15, 1969. As of August 23, 1969, the Hesters had a right to file their statutory petition with us anytime within the ensuing 30 days. It is obvious, nevertheless, that our statutory authority to hear the Hesters' petition terminated on September 22, 1969.

While the Legislature may limit, restrict or deny a litigant access to this court, it cannot divest this court of power to review descisions of subordinate tribunals by way of the discretionary common-law certiorari. Smith v. Estate of Catterall, R.I., 271 A.2d 300; In re Little, 103 R.I. 301, 237 A.2d 325; Nocera Bros. Liquor Mart, Inc. v. Liquor Control Hearing Board, 100 R.I. 644, 218 A.2d 659. We are...