Tarbox v. Zoning Bd. of Review of Jamestown
| Decision Date | 15 March 2016 |
| Docket Number | No. 2014–189–Appeal.,No. 2014–188–Appeal ,2014–188–Appeal |
| Citation | 142 A.3d 191 |
| Parties | Henry TARBOX et al. v. ZONING BOARD OF REVIEW OF the TOWN OF JAMESTOWN. |
| Court | Rhode Island Supreme Court |
Peter J. Brockmann, Esq., Jamestown, Frank F. Sallee, Esq., for Plaintiffs.
Wyatt A. Brochu, Esq., for Defendant.
Present: SUTTELL, C.J., GOLDBERG, ROBINSON, and INDEGLIA, JJ.
This case came before the Supreme Court on October 28, 2015, pursuant to an order directing the parties to appear and show cause why the issues raised in this consolidated appeal should not be summarily decided. The plaintiffs, Henry and Mary Tarbox (plaintiffs), have appealed from a Superior Court decision that denied their request for reasonable litigation expenses pursuant to the Equal Access to Justice for Small Businesses and Individuals Act (act), see G.L. 1956 chapter 92 of title 42, which was made after the plaintiffs prevailed in their appeal from the denial of a dimensional variance by the defendant, the Zoning Board of Review of the Town of Jamestown (board). The plaintiffs contend that the trial justice misinterpreted the act. Having carefully reviewed the memoranda submitted by the parties and the arguments of counsel, we are satisfied that cause has not been shown, and we proceed to decide the appeal at this time. For the reasons set forth below, we quash the judgment and remand this case to the Superior Court.1
The plaintiffs own a single-family home in Jamestown, Rhode Island. In September 2010, plaintiffs desired to construct an addition to their home so that Henry Tarbox's mother could live in a small apartment connected to the dwelling; the planned construction would convert the Tarbox home from a single-family home into a duplex—a permitted use in the zoning district. However, the lot size of plaintiffs' parcel was less than that required by the town's zoning ordinance (ordinance) for a duplex in the zoning district, causing plaintiffs to seek dimensional relief from the board. The board held a hearing on the variance application, at which plaintiffs were represented by counsel. Henry Tarbox testified in support of the application, and he and his attorney were peppered with questions from board members.2 Although no objectors appeared to oppose plaintiffs' variance application and no evidence was taken in opposition, the board members were divided, with three voting in favor of the application and two voting against it. Even though a majority of the board voted in favor of the application, the application was denied because it failed to gamer the requisite number of votes, as mandated by the state's Zoning Enabling Act. See G.L.1956 § 45–24–57(2)(iii) ().
The plaintiffs appealed the board's decision to the Superior Court3 in accordance with § 45–24–69, and, in a written decision, a justice of the Superior Court reversed the decision and granted plaintiffs' variance application. Emboldened by this victory, plaintiffs filed a motion for an award of reasonable litigation expenses under the act; the board opposed the motion.4 A second Superior Court justice5 denied plaintiffs' motion, reasoning that the board was not an “agency” within the purview of the act and that the hearing before the board was not an “adjudicatory proceeding” as that term is defined in the act. Shortly thereafter, the trial justice entered final judgment vacating the board's decision, granting plaintiffs' variance application, and denying plaintiffs' motion for reasonable litigation expenses. The plaintiffs filed a notice of appeal from the entry of final judgment.
On appeal, plaintiffs argue that the trial justice misinterpreted the act in concluding that the board is not an “agency” and that the hearing on plaintiffs' variance application was not an “adjudicatory proceeding” under the act. Before tackling the merits of this argument, however, we must first address whether plaintiffs, by filing a notice of appeal rather than a petition for a writ of certiorari, proceeded under the proper procedural vehicle for obtaining this Court's review of the denial of their motion for reasonable litigation expenses under the act. This requires us to carefully examine the provisions of the act in light of the parties' contentions, an exercise that is multifaceted based on the pertinent provisions of the act.
The board claims that plaintiffs were required to petition this Court for a writ of certiorari. To support this argument, the board points to language from the act that declares that the act is intended to supplement the provisions of the Administrative Procedures Act (APA), G.L. 1956 chapter 35 of title 42, and that, in the event of any conflict between the APA and the act, the provisions of the APA control. See § 42–92–7.6 According to the board, because the act does not explicitly provide for the method of seeking this Court's review of a decision under the act, and because the APA provides for review in this Court by certiorari, that provision of the APA controls. See § 42–35–16.7 However, the APA does not encompass zoning appeals; by its terms, § 42–35–16 of the APA applies only to “proceedings brought under § 42–35–15.” See Fox v. Norberg, 110 R.I. 418, 422, 293 A.2d 520, 523 (1972). Because this case was brought under § 45–24–69 of the state's Zoning Enabling Act, the provisions of the APA do not apply. See Caran v. Freda, 108 R.I. 748, 751, 279 A.2d 405, 407 (1971) (); Robert B. Kent et al., Rhode Island Civil Procedure § 80:1 at 639 (West 2015) ( ). This observation, however, does not end our analysis.
Although we reject the board's primary argument that the APA controls appellate review in this case, we nonetheless agree, for the reasons explained below, that plaintiffs were required to seek review by petition for a writ of certiorari. Nonetheless, because we have not heretofore addressed this precise procedural issue in a case such as this, we shall treat this appeal as the equivalent of a petition for a writ of certiorari.
Because this case began in Superior Court as an appeal from the decision of a zoning board in accordance with § 45–24–69, it was only after plaintiffs prevailed in their zoning appeal in Superior Court that a motion for an award of reasonable litigation expenses under the act could be brought and decided. After the motion was denied, the final judgment entered, from which an appeal to this Court was taken. The final judgment encompassed both the decision on the merits of the zoning appeal and the denial of plaintiffs' motion for reasonable litigation expenses. Under these circumstances, we are of the opinion that the case before us involves review of “a judgment of the Superior Court on appeal from a decision of a zoning board.” Lupo v. Community Works Rhode Island, Inc., 57 A.3d 667, 667 (R.I.2012) (mem.) (quoting Northern Trust Co. v. Zoning Board of Review of Westerly, 899 A.2d 517, 519 (R.I.2006) (mem.)). It is well settled that the proper procedure for obtaining review of such a judgment is to petition this Court for a writ of certiorari. See id.; Bassi v. Zoning Board of Review of Providence, 107 R.I. 702, 706, 271 A.2d 210, 213 (1970).
The plaintiffs dispute this conclusion and point to provisions of the act that they suggest support their contention that an appeal is proper. They first emphasize that their appeal to this Court is not from the decision of the Superior Court reversing the board's denial of their variance application but is from only the denial of their motion for reasonable litigation expenses. The plaintiffs also claim that the act contains a provision that explicitly authorizes an appeal to this Court from a Superior Court ruling on a request for reasonable litigation expenses. Finally, plaintiffs note that this Court recently entertained an appeal from the denial of relief under the act in Campbell v. Tiverton Zoning Board, 15 A.3d 1015 (R.I.2011).8
With respect to the act, plaintiffs argue that an appeal to this Court is authorized by § 42–92–5 of the act, which provides, in pertinent part, that “[a]ny party dissatisfied with the fee determination by the adjudicatory officer
may appeal to the court having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication.”9 (Emphasis added.) Clearly, § 42–92–5 references an appeal from a determination by the “adjudicatory officer,” and not a justice of the Superior Court. In an effort to show that the adjudicatory officer and the trial justice are one and the same in this case, plaintiffs propose a creative interpretation. First, plaintiffs point out that § 42–92–3(a) sets forth the circumstances under which an “adjudicative officer” can award reasonable litigation expenses to a party who prevails in an adjudicatory proceeding.10 The plaintiffs also note that, under § 42–92–3(b), “[i]f a court reviews the underlying decision of the adversary adjudication, an award for fees and other expenses shall be made by that court in accordance with the provisions of this chapter.” Even though the act provides a definition of the term “adjudicative officer,”...
To continue reading
Request your trial