Jeffrey v. Platting Bd. of Review of Town of South Kingstown

• Decision Date: 21 March 1968
• Docket Number: No. 110-A,110-A
• Citation: 103 R.I. 578,239 A.2d 731
• Parties: Arthur D. JEFFREY et al. v. PLATTING BOARD OF REVIEW OF the TOWN OF SOUTH KINGSTOWN et al. ppeal.
• Court: Rhode Island Supreme Court

Page 731

239 A.2d 731

103 R.I. 578

Arthur D. JEFFREY et al. v.PLATTING BOARD OF REVIEW OF the TOWN OF SOUTH KINGSTOWN et al.

No. 110-Appeal.

Supreme Court of Rhode Island.

March 21, 1968.

Graham, Reid, Ewing & Stapleton, Edward J. Regan, Providence, for plaintiffs-appellants.

Francis J. Kiernan, Archibald B. Kenyon, Jr., Providence, William H. Leslie, Jr., Wakefield, Merlyn A. DeConti, Thomas S. Hogan, Providence, for defendants-appeallees.

OPINION

POWERS, Justice.

This is an appeal from a superior court judgment, denying and dismissing the plaintiffs' appeal from a decision of the defendant board, which latter appeal was claimed pursuant to the provisions of G.L.1956, § 45-23-20.

The controversy arises out of an original request to the planning board of the town of South Kingstown, hereinafter called the 'board,' for the subdivision of certain real estate as shown by a preliminary plat accompanying said request.The proposed plat designated the land in question as 'Stoneway Plat' of which Salt Pond Meadowns, Inc. is owner and Henry Mars is developer.It was filed April 11, 1966, and was discussed at numerous meetings of the board held thereafter.Over strenuous objections of abutting property owners, the plat was given preliminary approval by the board subject to the conditions that prior to final approval there be compliance with the check list as set forth in the subdivision regulations of the town of South Kingstown and also that an access road to the plat be dedicated to the town.The public hearing mandated by the state enabling act, as well as the town's subdivision ordinance, was scheduled for July 19, 1966, and certain written notices thereof were mailed by the board as required by § 45-23-9, as amended.It is not disputed that plaintiffs, hereinafter called 'appellants,' received the required notice.

Subsequent to the public hearing of July 19, 1966, the final plat was filed by the developer.It depicted the location of certain existing roads on the land to be subdivided together with the location of a water system located on said land servicing abutting property.

The public hearing was held as scheduled on July 19, 1966, and numerous residents of the town of South Kingstown appeared to object to the approval of the plat.One of the principal objections voiced at the public hearing concerned possible damage to the water system on the subject parcel of land to the detriment of the abutting property owners serviced thereby.Another objection raised at the hearing by one of the abutting property owners was that approval of the plat as presented would seriously hinder the operation of a sewer system located on the proposed plat which serviced his premises.A third and prevalent objection, raised by abutters and others who attended the public hearing, related to a proposed change in zoning regulations scheduled for consideration by the town council on the evening of July 28, 1966.These proposed changes had been drafted by the board and submitted to the town council with the board's recommendation that they be adopted.

The objection to the plat based on zoning regulations arose out of the fact that each lot on the proposed subdivision averaged 40,000 square feet in area, twice the area requirement of the existing ordinance but only half that of the 80,000-square-foot requirement of the proposed amendment.

At the conclusion of the July 19, 1966 public hearing, the matter was continued to July 21, 1966.At that meeting it was announced that the board would grant final approval to Stoneway, subject however to assurances from the town sanitation officer that certain defects in the aforementioned sewer system had been corrected and the filing by the developer of a certified check or performance bond in the amount of $25,000 as required by the subdivision regulations of the town.The required assurances were filed by the sanitation officer on July 22, as was a check by the developer on July 27, 1966.It was a bank check of the Roger Williams Savings & Loan Association, payable to the order of Roger Williams Savings & Loan Association, town of South Kingstown and the developer, Harry N. Mars.Final approval of the Stoneway plat was given by the chairman of the planning board the following day at 4 p.m.That evening at the conclusion of the public hearing held before the town council, approval was given to the proposed zoning changes.

The instant appellants, being the abutters whose properties derived water and sewerage services from installations located on Stoneway plat, seasonably appealed to the South Kingstown platting board of review, hereinafter called 'defendant.'Their appeal was predicated on the authority of § 45-23-16, as amended.No question of standing to take that appeal is before us.

Also appealing to defendant from the board's decision were a Mr. and Mrs. Russell.They had not received written notice of the board's public hearing for the reason that they did not abut the proposed plat, but did abut land, a portion of which was subsequently purported to be dedicated as a public access highway.They would not, therefore, have been entitled to receive written notice as to the board's public hearing.It was not until after final approval by the board that their interests, if any, would appear.Since the superior court justice found, and we affirm, that the land purportedly dedicated as aforesaid was not a part of the subdivision, it follows that they were not entitled to receive written notice as abutters.

Pursuant to the appeal to it, defendant held a hearing on August 16, 1966, and took the matter under advisement until August 22, 1966, when it filed a decision denying and dismissing the appeal.

The appellants thereupon appealed to the superior court on the authority of § 45-23-20, seeking judicial review of the actions of the board in the first instance and defendant's action with regard to its review of the board's decision.

A hearing which lasted several days was held, and on January 26, 1967, the superior court justice denied and dismissed the appeal and judgment was entered for defendant with costs.From that judgment, appellants seasonably appealed to this court.

At the threshold of the instant appeal is the question of whether appellants had standing in the superior court as aggrieved persons within the meaning of § 45-23-20.It provides:

'Any person, whether or not previously a party to the proceedings, aggrieved by a decision of a board of review, or by a decision of a plan commission from which no appeal lies to a board of review, or by the failure of a plan commission to take final action with respect to any plat within the required time, may appeal to the superior court for the county in which the land is situated, by bill in equity filed within fifteen (15) days after such decision is recorded or within fifteen (15) days after the expiration of the required time as aforesaid.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.The court shall hear all pertinent evidence and determine the facts, and upon the facts so determined may affirm such decision, or may annual the same if found to exceed the authority of such plan commission or board of review, or may enter such other decree as justice and equity may require.The foregoing remedy shall be exclusive, but the parties shall have all rights of appeal and exception as in other equity cases.'

In their appeal to the superior court, appellants prayed that defendant's decision affirming the board's approval of Stoneway plat be annulled for the alleged reasons that the board had failed to comply with certain jurisdictional requirements of the state enabling act, the subdivision ordinance and the regulations adopted pursuant thereto.The superior court justice, making findings of fact where necessary, considered these contentions as to noncompliance by the board and found them to be without merit.He also found that appellants had failed to prove that their respective properties would be adversely affected by the approved subdivision and denied and dismissed the appeal.

It is defendant's contention that it this finding of no actual damage is not clearly wrong, appellants were not aggrieved persons within the meaning of § 45-23-20.Stated otherwise, defendant contends that appellants lacked standing to complain of any irregularities in the board's exercise of jurisdiction, absent a showing by appellants that the value or use of their properties will, as distinguished from may, be adversely affected by the board's approval of the proposed subdivision.In support of this contention, defendant relies on Paterson v. Corcoran, 100 R.I. 475, 217 A.2d 88.

In Paterson we held at 480, 217 A.2d 91, '* * * It is our conclusion then that the legislative intent in the enactment of § 45-23-20 was to restrict standing to claim the judicial review therein provided to those landowners whose land was within the prescribed distance who established that its filing might affect the use or value of their land.'Furthermore, we concluded that to be aggrieved the property owners' interest must be substantial and not merely nominal, citing Tillinghast v. Brown University, 24 R.I. 179, 52 A. 891;Greene v. Willis, 47 R.I. 251, 132 A. 545, andHall v. Burgess, 40 R.I. 314, 100 A. 1013.

In those casesthis court held that a grievance exists only when the wrong asserted acts to deny a personal or property right or imposes a burden on the person asserting the grievance.We adhered to this principle in Paterson because the probative evidence established that plaintiff was complaining only of that which affected the public generally.

Contrary to defendant's contention, however, we did not hold that a property owner qualifying within the restrictive...