Kirby v. Planning Bd. of Review of Town of Middletown

CourtUnited States State Supreme Court of Rhode Island
Writing for the CourtLEDERBERG; FAY
Citation634 A.2d 285
Decision Date26 November 1993
PartiesJames W. KIRBY v. PLANNING BOARD OF REVIEW OF the TOWN OF MIDDLETOWN v. PECKHAM BROS. CO., INC. 92-524-Appeal.

Page 285

634 A.2d 285
James W. KIRBY
v.
PLANNING BOARD OF REVIEW OF the TOWN OF MIDDLETOWN
v.
PECKHAM BROS. CO., INC.
92-524-Appeal.
Supreme Court of Rhode Island.
Nov. 26, 1993.

Page 286

Bradford Gorham, Gorham & Gorham, Providence, for plaintiff.

Turner C. Scott, Michael Miller, Miller, Scott, Howe & Kelly, Jeremiah Lynch, III, Stephen Haire, Newport, for defendant.

OPINION

LEDERBERG, Justice.

This litigation arises from the decision of the town of Middletown's Planning Board of Review (board) to reject the subdivision plat plan submitted by James W. Kirby (Kirby). Kirby appealed the decision. The Superior Court, sitting without a jury, entered a judgment sustaining his appeal and reversing the board's decision. The board and Peckham Bros. Co., Inc. (Peckham) appeal the judgment of the Superior Court.

The central issue on appeal is whether the Superior Court erred in concluding that article 8, section 801, of the Middletown Rules and Regulations Regarding the Subdivision of Land (Middletown Subdivision Rules and Regulations) did not require the street system in Kirby's proposed subdivision to extend to land abutting the subdivision. The board rejected Kirby's plan because the layout of its street plan did not extend to abutting land. We are of the opinion that the board's decision was correct, and we reverse the judgment of the Superior Court.

I

Kirby is the owner of lot No. 17 on tax assessor's plat No. 126 in the town of Middletown. On or about June 28, 1989, Kirby proposed a six-lot subdivision of his property, with five of the lots to be established initially. 1

Page 287

1 In a letter dated July 21, 1989, the Middletown Planning Board denied Kirby's proposed subdivision on the grounds that it "did not conform with the Rules and Regulations for the Subdivision of Land (RRSOL) 1980 (revised June 20, 1984)." Kirby filed a timely appeal to the town planning board of review.

In a decision dated August 6, 1990, the board denied the appeal. Relying, in part, upon section 801 of the Middletown Subdivision Rules and Regulations, the board found that public convenience and welfare would not be furthered by allowing Kirby to establish a subdivision whose road system did not connect to the abutting property. The board interpreted section 801 as requiring "streets within a proposed subdivision [to] project to abutting land."

On August 16, 1990, Kirby appealed to the Superior Court. 2 On September 17, 1990, Peckham, the owner of land that abutts Kirby's, moved to intervene, and on or about October 1, 1990, the motion was granted. In a decision filed September 30, 1992, the trial justice reversed the board. He reasoned that because the properties abutting Kirby's proposed subdivision had been subdivided, the streets within the proposed subdivision were not required to project to abutting property lines. Consequently, the trial justice determined that the board had exceeded its authority when it denied approval on the grounds that the proposed subdivision did not extend streets to the abutting property. In response, Peckham filed the instant appeal.

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II

Before addressing the main issue presented to this court, we must resolve several procedural issues. The first concerns whether the board is a proper party to this action.

A

The notice of appeal, filed on October 16, 1992, named Stephen A. Haire and Michael W. Miller as attorneys for defendant; the former is listed as representing Peckham, and the latter is shown as representing the town of Middletown. The notice itself, however, contained only the signature of Stephen A. Haire, and only Peckham paid the requisite appellate filing fee of $150. Therefore, notwithstanding the notice's reference to the town of Middletown, the appeal clearly was filed by Peckham alone. Only later did the board join in the appeal.

In joining the appeal, the board referred to itself as the "Planning Board of Review of the Town of Middletown." The board, however, was not named as a party to the action appealed from, in that Kirby's Superior Court complaint named the individual members of the board in their official capacities. Our first concern is whether this disparity, standing alone, invalidates the board's appeal.

It is recognized that whenever a party "is a defined public body with a small and readily ascertainable membership * * *, there is no legal bar to referring collectively to the individual members of the public body by its statutory title." Ciszewski v. Industrial Accident Bd., 367 Mass. 135, 139-40, 325 N.E.2d 270, 273 (1975) (quoting School Committee of Boston v. Reilly, 362 Mass. 334, 339-40, 285 N.E.2d 795, 799 (1972)). This rule applies in situations in which the public body is a defendant as well as where it is a plaintiff. 367 Mass. at 139-40, 325 N.E.2d at 273. Moreover, when the name of a party to an action is changed on appeal, the new name will suffice if it refers to the party "in such terms that every intelligent person understands who is meant." C & C Title Co. v. Independent School District No. 7 of Tulsa County, 503 P.2d 554, 559 (Okl.1972) (quoting United States v. A.H. Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir.1947)).

Applying these principles to the instant case, we conclude that the board permissibly altered its designation on appeal. The board consists of only five members, and the name as altered clearly designates who is pressing the action. In these circumstances, the board, as such, is a properly named party. This, however, does not conclude our inquiry, for we also question whether the board properly joined in Peckham's appeal.

Under Rule 3(b) of the Supreme Court Rules of Appellate Procedure, two or more persons may file a joint notice of appeal or may join the appeal after filing separate timely notices of appeal. Each party, however, must pay the prescribed $150 filing fee. Rule 5(a). Failure of a party to tender the requisite fee renders its appeal invalid. Rule 3(a).

The record before us indicates that whereas Peckham paid its fee, the board did not. Nor did the board seek relief from the filing fee pursuant to Rule 5(b)(1). Consequently, the board is not a party to this appeal. 3 Nevertheless, resolution of this

Page 289

case is not affected, for Peckham may properly press the appeal.
B

The second procedural issue addresses the proper method for obtaining review of judgments of the Superior Court in municipal-planning-board cases. Peckham, citing Lett v. Caromile, 510 A.2d 958 (R.I.1986), contends that review by this court is by direct appeal. In contrast, Kirby argues that review should arise by the granting of a petition for a writ of certiorari, as in the procedure for reviewing judgments of the Superior Court in zoning cases. We agree with Kirby.

Although the enabling legislation concerning the subdivision of land, G.L.1956 (1991 Reenactment) chapter 23 of title 45, does provide for appeal to the Superior Court from planning-board decisions, there is no statutory right of appeal to this court. 4 In ruling that certiorari is the proper procedure, we are guided by our jurisdictional determinations in appeals from zoning-board decisions.

Because of the absence of a statutory provision for review by this court of the Superior Court's judgments in zoning cases, we have held that "[s]uch judgments are only reviewable in this court by common law certiorari." Gaschen v. Zoning Bd. of Review of Cumberland, 499 A.2d 419, 419 (R.I.1985) (order) (citing Bassi v. Zoning Bd. of Review of Providence, 107 R.I. 702, 271 A.2d 210 (1970)). This practice accords with the statutory provisions for judicial review of administrative agency decisions. General Laws 1956 (1988 Reenactment) § 42-35-15 and § 42-35-16. Specifically, § 42-35-16 provides for Supreme Court review of Superior Court decisions in administrative agency cases by writ of certiorari. Barrington School Committee v. Rhode Island State Labor Relations Bd., 608 A.2d 1126, 1138 (R.I.1992) (citing § 42-35-16).

Notwithstanding the absence of a statutory right of appeal and notwithstanding our precedent in appeals from the decisions of zoning boards and administrative agencies, we have on occasion heard appeals of Superior Court judgments in planning-board cases as of right. See Lett, 510 A.2d at 959; Jeffrey v. Platting Bd. of Review of South Kingstown, 103 R.I. 578, 580, 239 A.2d 731, 733 (1968). However, we have never addressed the propriety of direct appeal. Although we choose to consider the instant appeal, in the future we shall review judgments of the Superior Court in planning-board cases only by writ of certiorari. We are of the opinion that this is a sounder approach. It comports with our method of reviewing Superior Court decisions in the appeals of administrative agencies and zoning-board cases. In addition, it complies...

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331 practice notes
  • State v. DiStefano, No. 99-119-C.A.
    • United States
    • Rhode Island Supreme Court
    • December 20, 2000
    ..."what appears to be the meaning that is most consistent with its * * * obvious purpose." Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 290 (R.I.1993) (quoting Zannelli v. Di Sandro, 84 R.I. 76, 81, 121 A.2d 652, 655 (1956)). See also State ex rel. Town of Middletown v. Anth......
  • Mosby v. Devine, No. 2001-161-Appeal.
    • United States
    • Rhode Island Supreme Court
    • June 10, 2004
    ...that the "[f]ailure of a party to tender the requisite fee renders its appeal invalid." Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 288 (R.I.1993); see also Tateosian v. Celebrity Cruise Services, Ltd., 768 A.2d 1248, 1249 n. 1 (R.I. 2001). Our records reveal that, of the......
  • Parella v. Montalbano, No. 2003-595-Appeal.
    • United States
    • Rhode Island Supreme Court
    • June 9, 2006
    ...held that "[f]ailure of a party to tender the requisite fee renders its appeal invalid." Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 288 (R.I.1993). Because only these three plaintiffs paid a filing fee, the other plaintiffs in the original complaint are not properly befo......
  • Burchard v. Buhrendorf, C.A. NC-2007-0284
    • United States
    • Superior Court of Rhode Island
    • May 6, 2009
    ...decision rests upon 'competent evidence' or is affected by an error of law." Id. (quoting Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 290 (R.I. 1993)). III Discussion A Notice Appellant argues that adequate and sufficient notice is a due process requirement in zoning matt......
  • Request a trial to view additional results
331 cases
  • State v. DiStefano, No. 99-119-C.A.
    • United States
    • Rhode Island Supreme Court
    • December 20, 2000
    ..."what appears to be the meaning that is most consistent with its * * * obvious purpose." Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 290 (R.I.1993) (quoting Zannelli v. Di Sandro, 84 R.I. 76, 81, 121 A.2d 652, 655 (1956)). See also State ex rel. Town of Middletown v. Anth......
  • Mosby v. Devine, No. 2001-161-Appeal.
    • United States
    • Rhode Island Supreme Court
    • June 10, 2004
    ...that the "[f]ailure of a party to tender the requisite fee renders its appeal invalid." Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 288 (R.I.1993); see also Tateosian v. Celebrity Cruise Services, Ltd., 768 A.2d 1248, 1249 n. 1 (R.I. 2001). Our records reveal that, of the......
  • Parella v. Montalbano, No. 2003-595-Appeal.
    • United States
    • Rhode Island Supreme Court
    • June 9, 2006
    ...held that "[f]ailure of a party to tender the requisite fee renders its appeal invalid." Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 288 (R.I.1993). Because only these three plaintiffs paid a filing fee, the other plaintiffs in the original complaint are not properly befo......
  • Burchard v. Buhrendorf, C.A. NC-2007-0284
    • United States
    • Superior Court of Rhode Island
    • May 6, 2009
    ...decision rests upon 'competent evidence' or is affected by an error of law." Id. (quoting Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 290 (R.I. 1993)). III Discussion A Notice Appellant argues that adequate and sufficient notice is a due process requirement in zoning matt......
  • Request a trial to view additional results

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