Plaintiff: Peter J. Brockmann, Esq.
Defendant: Wyatt A. Brochu, Esq.
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.
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.
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 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.
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.
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 and that the hearing before the
Zoning Board was not an adjudicatory
proceeding. See id. On May 20, 2014, Final
Judgment entered. See id. at ¶ 11.
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.
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.
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)).
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)).
"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).
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).
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
Zoning Board does not challenge Plaintiffs' status as the
prevailing party, as defined in the Act; 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.