Henry Tarbox, et al.
Zoning Board of Review of the Town of Jamestown.
Newport County Superior Court NC 10-667 Associate Justice Bennett R. Gallo
For Plaintiffs: Peter J. Brockmann, Esq. Frank F. Sallee, Esq.
For Defendant: Wyatt A. Brochu, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
Maureen McKenna Goldberg Associate Justice
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.
Facts and Travel
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.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 garner the requisite number of votes, as mandated by the state's Zoning Enabling Act. See G.L. 1956 § 45-24-57(2)(iii) (requiring that a zoning ordinance must provide that "[t]he concurring vote of four (4) of the five (5) members of the zoning board of review sitting at a hearing is required to decide in favor of an applicant on any matter within the discretion of the board upon which it is required to pass under the ordinance, including variances and special-use permits").
The plaintiffs appealed the board's decision to the Superior Court 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. A second Superior Court justice 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.
Procedural Hurdle: Appeal or Certiorari
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. 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. 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) ("[T]he [APA] * * * relates only to state agencies and not municipal zoning boards * * *."); Robert B. Kent et al., Rhode Island Civil Procedure § 80:1 at 639 (West 2015) ("The [APA] does not apply to review of administrative action by municipal agencies. An aggrieved party pursuant to * * * § 45-24-69 may appeal a decision of a Zoning Board of Review to the Superior Court sitting in the county in which the city or town is situated. Where municipal agency action is by statute reviewable in the Superior Court, again the [APA] does not apply."). 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 ...