Munroe v. Town of East Greenwich

• Citation: 733 A.2d 703
• Decision Date: 15 June 1999
• Docket Number: No. 98-573-M.P.,98-573-M.P.
• Parties: David MUNROE et al. v. TOWN OF EAST GREENWICH et al.
• Court: United States State Supreme Court of Rhode Island

733 A.2d 703

David MUNROE et al. v. TOWN OF EAST GREENWICH et al.

No. 98-573-M.P.

Supreme Court of Rhode Island.

June 15, 1999.

Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Elizabeth McDonough Noonan, Providence, for Plaintiff.

Joseph V. Cavanagh, Jr., Edmund L. Alves, Jr., Kristen Rodgers, Providence, Andrew M. Teitz, Nancy Giorgi, Johnston, Peter J. Rotelli; Gary Berkowitz, Swansea, MA, for Defendants.

OPINION

WEISBERGER, Chief Justice.

This case comes before us on the petition for a writ of certiorari brought by the Town of East Greenwich (the town). This litigation arises from a judgment entered in the Superior Court reversing the East Greenwich town council's final approval of a subdivision acting as the Platting and Subdivision Board. The central issue in this case is whether the Superior Court erred in concluding that the Rhode Island Development and Subdivision Review Enabling Act of 1992, G.L.1956 §§ 45-23-25 through 45-23-74 (the Development Review Act), that requires all town councils to empower planning boards to control land development and subdivision projects, supersedes the town's Home Rule Charter (the charter). The charter, as further implemented by ordinance, requires the planning board to act as a technical review committee responsible for reviewing all applications for platting and subdivision of land within the town and submitting its recommendations to the town council. For the reasons explained below, we deny the petition for certiorari and affirm the judgment of the Superior Court.

The respondents, David and Donna Munroe (the Munroes), are abutting owners to a 35.5 acre parcel of vacant land in East Greenwich identified as assessor's plat 15H, lot Nos. 48 and 121 (the subject property). Philip Ryan Homes, Ltd. (Ryan) sought to subdivide the subject property into a ten-lot cluster compound known as the "Long Meadow Farms." In February 1996, Ryan, in compliance with the procedural requirements for subdivision approval, submitted his plans to the town council, acting as the Platting and Subdivision Board of the Town of East Greenwich. On or about February 17, 1998, the town council conditionally approved Ryan's final plans. The Munroes appealed the town council's decision to the town's zoning board of review (acting as a board of appeal). By a unanimous vote, the Munroes' appeal was denied.

Thereafter, the Munroes sought review of the board of appeal's decision by filing a complaint in the Kent County Superior Court. In their first amended complaint of July 16, 1998, they sought review and reversal of the board of appeal's decision, contending that its decision was made in violation of constitutional, statutory, ordinance or planning board regulation provisions, in excess of the authority granted to the planning board by statute and ordinance, and was made upon unlawful procedures. The trial justice agreed, holding that the board of appeal's decision upholding the town council's approval violated the procedural requirements of the Development Review Act and prejudiced the Munroes' substantial rights. Judgment was entered in favor of the Munroes.

On December 7, 1998, the town and the town council filed a petition for writ of certiorari to review the judgment of the Superior Court. This Court issued the writ on February 18, 1999, and assigned this matter to the regular calendar for full briefing and argument. On March 18, 1999, upon petitioners' motion we ordered that the hearing on this petition be expedited.

Petitioners' claims

First, the petitioners contend that the Superior Court was clearly wrong and misapplied the law of statutory construction in relying on the Development Review Act and in disregarding the charter's specific provisions pertaining to land development and planning. Second, they contend that the Superior Court misapplied the law and improperly attacked the validity of the town council's authority as established by the charter. Third, they argue that the decision violates article 13, section 1, the Home Rule Charter Amendment, to the Rhode Island Constitution in that its conclusion would necessarily result in the immediate, permanent alteration of the town's form of government. We shall address each issue in order.

Standard of Review

Pursuant to § 45-23-71 judicial review of board decisions is not de novo. Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 290 (R.I.1993)

. The statute authorizes the Superior Court to review such decisions utilizing the "`traditional judicial review' standard that is applied in administrative-agency actions." Id. Therefore, the Superior Court does not consider the credibility of witnesses, weigh the evidence, or make its own findings of fact. Id.; Lett v. Caromile, 510 A.2d 958, 960 (R.I.1986). Rather, "[i]ts review is confined to a search of the record to ascertain whether the board's decision rests upon `competent evidence' or is affected by an error of law." Kirby, 634 A.2d at 290.

"When this [C]ourt reviews such an appellate decision of the Superior Court, the scope of our review is confined to determining whether the trial justice exceeded his or her authority under § 45-23-[71]." Id.; see Sawyer v. Cozzolino, 595 A.2d 242, 245 (R.I.1991)

. We shall reverse a lower court judgment on appeal from a planning board of review if the trial justice "misapplied the law, misconceived or overlooked material evidence, or made findings that were clearly wrong." Kirby, 634 A.2d at 290 (quoting Brum v. Conley, 572 A.2d 1332, 1335 (R.I.1990)); see Taylor v. Marshall, 119 R.I. 171, 178, 376 A.2d 712, 716 (1977). After reviewing the trial justice's decision and the record of the proceedings before the board of appeals, we are of the opinion that the trial justice committed no error.

Discussion

In rejecting the town council's authority to approve the subdivision proposed by Ryan, the trial justice relied in part upon the Rhode Island Zoning Enabling Act of 1991. G.L.1956 § 45-24-47(A) and (B).¹ He concluded that the town "usurped the decision-making authority that the Development Review Act [specifically, G.L.1956 § 45-23-51] provided was to be bestowed upon [a town's] planning board in favor of its town council acting as platting board[;] rather than requiring that land development projects be referred for approval to its planning board, the town requires that land development projects be referred for approval to its town council acting as platting board." This effectively reduced the planning board to the status of a technical review committee. We agree.

The town's charter provides that "the Town council shall act as the Platting and Subdivision Board," East Greenwich, R.I., Home Rule Charter, art. III § 3170(S) (1972); see also East Greenwich, R.I., Code of Ordinances ch. 2, § 2-26(a) (1993) ("the members of the town council shall constitute the platting and subdivision board"). Further, the platting board is designated as the permitting authority vested with decision-making power and control over subdivisions. Id. at § 2-26(b). ("the power and authority is hereby granted to the platting and subdivision board of the town * * * to control the subdivision of such land" within the town); see also East Greenwich, R.I., Code of Ordinances appendix B, § 7(33) (defining permitting authority as the "entity of the Town of East Greenwich charged with the responsibility of application of these regulations relative to proposals for development or subdivision of property. (Also known as the platting and subdivision board)"); id. at § 29 ("[t]he East Greenwich Town Council has authorized by Ordinance * * * the permitting authority [town council acting as platting board] * * * to govern land development and subdivision projects * * *."); but see G.L.1956 § 45-23-32(29) (defining permitting authority as "[t]he local agency of government specifically empowered by state enabling law and local ordinance to hear and decide on specific matters pertaining to local land use"). (Emphasis added.)

Pursuant to § 45-23-51 of the Development Review Act, control of land development and subdivision projects is required to be conferred upon the planning board. Section 45-23-51 provides:

"Local regulations Authority to create and administer regulations. The city or town council shall empower, by ordinance, the planning board to adopt, modify and amend regulations and rules governing land development and subdivision projects within that municipality and to control land development and subdivision projects pursuant to those regulations and rules." See also § 45-23-63(D) ("[a] decision by the planning board to approve any land development or subdivision application shall require a vote for approval by a majority of the current planning board membership"). The petitioners argue that the Development Review Act cannot supersede any inconsistent provisions of the charter because the charter became a special act of the Legislature when its terms were ratified by the General Assembly in 1973. Moreover, pursuant to G.L.1956 § 45-22-1 ² the town has the right to permit the town council to continue to exercise power over land development. We agree that the statute permits the town to operate under its home rule charter with respect to establishing a planning board or commission subject to the duties described in § 45-22-7. We note, however, that the Legislature may pursuant to § 45-22-7(D) require a "planning board or commission * * * [to] perform such other duties as may be assigned * * * from time to time by any act of the general assembly * * *." The Development Review Act is such an act and supersedes inconsistent ordinances adopted pursuant to the charter provision. See, e.g., East Greenwich, R.I., Code of Ordinances ch. 2. § 2-26(b) ("the power and authority is hereby granted to the platting and subdivision board of the town * * * to control the subdivision of such land * * *" within the town); id. at § 2-26(a) ("[t]he...