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Tarbox v. Zoning Board Of Review For Town Of Jamestown

Superior Court of Rhode Island

August 22, 2017



          For Plaintiff: Peter J. Brockmann, Esq.

          For Defendant: Wyatt A. Brochu, Esq.


          VAN COUYGHEN, J.

         Plaintiffs Henry and Mary Tarbox (Plaintiffs) have moved to recover litigation expenses pursuant to the Equal Access to Justice for Small Businesses and Individuals (the Act), G.L. 1956 §§ 42-92-1 et seq. Plaintiffs incurred the expenses-namely, attorney's fees and costs-while appealing from an adverse decision of the Zoning Board of Review for the Town of Jamestown (Zoning Board). Plaintiffs have successfully appealed the Zoning Board's decision and now seek to recover the litigation expenses incurred. The Zoning Board objects to Plaintiffs' motion. Jurisdiction is pursuant to § 42-92-3(b). For the reasons set forth herein, the Court grants Plaintiffs' motion and awards fees and costs in the amount of $32, 341.21.


         Facts and Travel

         The parties have stipulated to the following facts. Plaintiffs are the owners of residential property (Property) located in the Town of Jamestown (Jamestown). See Joint Statement of Agreed Facts (Joint Statement) ¶ 1. The Property comprises approximately 11, 427 sq. ft. and is located in a Residential 8000 sq. ft. (R8) Zone. See id. In an R8 Zone, the Jamestown Zoning Ordinance requires a minimum of 8000 sq. ft. to construct a single-family dwelling and 15, 000 sq. ft. to construct a two-household dwelling-a duplex. See id.; see also Jamestown Zoning Ordinance § 82-302. Duplexes, thus, are allowed as a matter of right so long as the lot has the requisite minimum square footage.

         At some point, Plaintiffs decided to add a one-bedroom apartment to the Property. On or about September 22, 2010, Plaintiffs submitted an application to the Zoning Board for a lot area variance because the Property was undersized by 23.8%. See Joint Statement ¶ 2. On October 26, 2010, the Zoning Board took testimony and heard arguments on Plaintiffs' application. See id. at ¶ 3. At the conclusion of Plaintiffs' presentation, a member of the Zoning Board moved to approve Plaintiffs' application and grant the relief sought. See id. at ¶ 4. The motion did not pass[1] and the Zoning Board denied Plaintiffs' application. See id. The next day, October 27, 2010, the Zoning Board issued a written decision (Decision). See id. at ¶ 5.

         Plaintiffs timely appealed the Decision to the Superior Court, and on March 8, 2013, this Court issued a written decision reversing the Zoning Board's denial and granting Plaintiffs' request for a dimensional variance. See id. at ¶ 7. In December of 2013, Plaintiffs moved for litigation expenses pursuant to the Act, and the Zoning Board timely objected. See id. at ¶ 8.

         On March 7, 2014, Plaintiffs' motion came before a justice of the Superior Court. See id. at ¶ 10. The Court issued a bench decision-the Court issued an Order on May 8, 2014, memorializing its decision-denying Plaintiffs' motion. See id. The Court decided, sua sponte, that, for purposes of the Act, the Zoning Board was not an agency[2] and that the hearing before the Zoning Board was not an adjudicatory proceeding.[3] See id. On May 20, 2014, Final Judgment entered. See id. at ¶ 11.

         Plaintiffs appealed the Order and entry of Final Judgment to the Rhode Island Supreme Court-the appeal was limited to the aspects of the Order and Final Judgment that contemplated Plaintiffs' request for litigation expenses. See id. at ¶ 12. The Supreme Court heard oral arguments on October 28, 2015 and issued its Opinion on March 15, 2016. See id. at ¶ 14. The Supreme Court concluded that the Zoning Board was an agency for purposes of the Act and that the hearing before the Zoning Board was an adjudicatory proceeding. See id. The Supreme Court quashed the Final Judgment and remanded the case for consideration of Plaintiffs' motion on the merits. See id.

         On September 13, 2016, Plaintiffs filed a second Motion for Award of Reasonable Litigation Expenses Pursuant to the Act-the instant Motion. See id. at ¶ 15. After a series of continuances and chambers conferences on the matter, Plaintiffs' Motion was heard on March 30, 2017.


         Standard of Review

         Rhode Island "adheres to the 'American rule' that litigants generally are responsible for their own attorneys' fees and costs. . . However, attorneys' fees may be appropriately awarded, at the discretion of the trial justice, given proper contractual or statutory authorization." Pearson v. Pearson, 11 A.3d 103, 108-09 (R.I. 2011) (internal quotations and citations omitted). "[T]he right to collect attorney's fees did not exist at common law and . . . such fees may be taxed only when there is either specific statutory authority or contractual liability." Eleazer v. Ted Reed Thermal, Inc., 576 A.2d 1217, 1221 (R.I. 1990) (citing Orthopedic Specialists, Inc. v. Great Atl. & Pac. Tea Co., 120 R.I. 378, 387-88, 388 A.2d 353, 357 (1978)).

         This Court looks to the express language of the authoritative statute, in this instance the Act, and applies that statute as constructed. See id. "[The Act] is modeled on the Federal Equal Access to Justice Act, 28 U.S.C.A. § 2412 (West 1978). When a Rhode Island statute is modeled [after] a federal statute, this court 'should follow the construction put on it by the federal courts, unless there is strong reason to do otherwise.'" Krikorian v. R.I. Dep't of Human Servs., 606 A.2d 671, 674 (R.I. 1992) (quoting Laliberte v. Providence Redevelopment Agency, 109 R.I. 565, 575, 288 A.2d 502, 508 (1972) (citation omitted)).



         The Act "was propounded to mitigate the burden placed upon individuals and small businesses by the arbitrary and capricious decisions of administrative agencies made during adjudicatory proceedings, as defined in the act." Taft v. Pare, 536 A.2d 888, 892 (R.I. 1988). The Act aims to "eliminate for the average person the financial disincentive to challenge unreasonable governmental actions." U.S. v. Cacho-Bonilla, 206 F.Supp.2d 204, 207 (D.P.R. 2002) (citation omitted). The Act does not, however, create an automatic right to fee shifting. "If the government can demonstrate that its position was substantially justified or that unusual circumstances existed which would make an award unjust, then the fee tree does not flower, notwithstanding that the applicant is a prevailing party within the meaning of the statute." Sierra Club v. Sec'y of Army, 820 F.2d 513, 517 (1st Cir. 1987).

         In the instant matter, the operative provision is § 42-92-3, which states in pertinent part:

"Whenever the agency conducts an adjudicatory proceeding subject to this chapter, the adjudicative officer shall award to a prevailing party reasonable litigation expenses incurred by the party in connection with that proceeding. The adjudicative officer will not award fees or expenses if he or she finds that the agency was substantially justified in actions leading to the proceedings and in the proceeding itself. The adjudicative officer may, at his or her discretion, deny fees or expenses if special circumstances make an award unjust. The award shall be made at the conclusion of any adjudicatory proceeding, including, but not limited to, conclusions by a decision, an informal disposition, or termination of the proceeding by the agency. The decision of the adjudicatory officer under this chapter shall be made a part of the record and shall include written findings and conclusions. No other agency official may review the award." Sec. 42-92-3(a).

         Pursuant to § 42-92-3, the Zoning Board must demonstrate that it was substantially justified in the actions leading to the proceeding and in the proceedings themselves; otherwise, Plaintiffs are entitled to the reasonable litigation expenses incurred.

         The Zoning Board does not challenge Plaintiffs' status as the prevailing party, as defined in the Act[4]; thus, the Court is left to determine whether the Zoning Board was substantially justified in its initial decision denying the Plaintiffs' request for a variance and in the proceedings that followed. If this Court finds that the Zoning Board's actions lacked the requisite justification, then it will exercise its discretion and determine the reasonable litigation expenses to which the Plaintiffs are entitled.


         Substantial ...

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