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McLaughlin v. Zoning Board of Review of Town of Tiverton

Supreme Court of Rhode Island

June 20, 2018

William C. McLaughlin
Zoning Board of Review of the Town of Tiverton et al.

          Newport County Superior Court Associate Justice Walter R. Stone (NC 11-535)

          For Plaintiff: Danial Calabro, Jr., Esq

          For Defendants: Peter F. Skwirz, Esq. Anthony DeSisto, Esq

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.



         When, close to a decade ago, William C. McLaughlin built a garage on his property in Tiverton, he did so in violation of the setback requirements set forth in Tiverton's Zoning Ordinance. As the record indicates, and as is not in dispute, a portion of McLaughlin's garage was within seven feet of his property boundary, twenty-three feet short of the side yard setback requirement of thirty feet. Those twenty-three feet have triggered a yearslong process that McLaughlin now seeks to partially unwind.

         McLaughlin appeals from a September 2, 2016 order of the Superior Court denying his motion to vacate an earlier court order, entered on April 7, 2014, that compelled him to remove the garage from his property. As it stands now, over eleven years after McLaughlin first set out to build a garage, the Town of Tiverton has had the garage removed, and it holds a $69, 300 lien on McLaughlin's property arising from contempt fines that were imposed by a trial justice in August 2015.[1] In this appeal, we are tasked with resolving the following issues: whether to vacate the April 7, 2014 order under Rule 60(b)(4) of the Superior Court Rules of Civil Procedure; whether to vacate it under Rule 60(b)(6); and whether McLaughlin is barred by the doctrine of res judicata from pursuing either of those two avenues.

         For the reasons set forth in this opinion, we reverse the Superior Court order denying McLaughlin's motion to vacate the April 7, 2014 order.

         I Facts and Travel

         The relevant facts of this case are not in dispute, but they tell a rather complicated tale. In 2007, McLaughlin applied for and received a permit from the municipal Building Inspector to build a 40-by-60 foot garage on his property. As he would later admit to the Tiverton Zoning Board of Review and in a letter seeking a zoning variance, that permit was based on an erroneous site plan that McLaughlin had provided to the town. That plan, which McLaughlin himself prepared, inaccurately described the boundaries of his property. Whether this error was inadvertent or intentional is unknown, but it is clear that McLaughlin's garage was built well short of the side yard setback required by the Tiverton Zoning Ordinance.

         A McLaughlin's Zoning Appeal

         In 2010, spurred to action by a notice of violation issued by the zoning official, McLaughlin applied for a zoning variance from the Zoning Board of Review.[2] After a number of continuances, the zoning board held a hearing on McLaughlin's variance request on September 7, 2011. At that hearing, McLaughlin, who was represented by counsel, argued that the zoning board should grant him a variance from the setback requirement because he had exercised reasonable care in locating the area on which to build the garage. The financial hardship associated with moving the garage, McLaughlin asseverated, justified relief from the literal requirements of the ordinance.

         After hearing from McLaughlin and also after taking testimony from one of McLaughlin's abutting neighbors, the zoning board unanimously denied the variance application. In a letter dated October 3, 2011, the zoning board explained, among other things, that not only was McLaughlin's garage in violation of the side yard setback requirement, but also that the garage was in violation of the front yard setback requirement.

         Shortly after his variance request was denied, McLaughlin, now pro se, appealed to the Superior Court for relief. But there, too, his appeal for zoning relief was unsuccessful. In an October 4, 2013 bench decision, a justice of the Superior Court affirmed the zoning board's denial of McLaughlin's variance request. That justice concluded that the only hardship McLaughlin faced was purely financial in nature, and the hearing justice held that such self-created financial hardship was not a sufficient ground justifying a variance. McLaughlin, still unsatisfied, then appealed that judgment to this Court. However, in January 2014, his appeal was dismissed as procedurally improper.[3]

         It is at this juncture that this seemingly run-of-the-mill zoning matter went astray. That is so because on October 4, 2013, just after rendering his decision affirming the zoning board, the hearing justice and counsel for the zoning board had engaged in the following colloquy:

"[COUNSEL]: Thank you, your Honor. Your Honor, I would also ask the Court to make part of the order that there be compliance with the Zoning Board's decision. This is not an appeal from the Municipal Court, so it would be with this court to enter the order with respect to the applicable remedy as well.
"THE COURT: The only thing before me is the Zoning Board decision right now.
"[COUNSEL]: Okay. I have to do a separate motion.
"THE COURT: I would suggest a separate motion. I have every reason to believe that - I mean, that the decision of the Court upholding the Board's decision, I assume that Mr. McLaughlin is going to comply or appeal, whatever. So I'll await whatever request you want to formally make.
"[COUNSEL]: Thank you, your Honor."

         That colloquy, raising the specter of a forthcoming "separate motion, " was a foreshadowing of things to come.

         B The Separate Motion

         On March 11, 2014, the same assistant town solicitor who represented the board in defending McLaughlin's zoning appeal filed a motion entitled "Motion for Order to Comply." That motion was filed in this case, captioned NC 11-535, the same case in which, as discussed above, the hearing justice had affirmed the zoning board's denial of the variance. In moving for an order to comply, the zoning board asked the Superior Court to order McLaughlin to "either move or remove the [garage] to comply with local zoning in accordance with the Decision of the [zoning board], affirmed by this court[.]" As a penalty, the zoning board suggested "that if [McLaughlin] does not effectuate such compliance by either moving or removing the structure within ninety (90) days of this Order[, ]" then he "shall be adjudged in contempt and subject to a fine for each day thereafter that the [garage] remains out of compliance[.]"

         Furthermore, in its memorandum supporting the motion, the zoning board requested that the Superior Court invoke its equitable powers under G.L. 1956 § 8-2-13 and order McLaughlin to comply with the Tiverton Zoning Ordinance by moving or removing his garage. The matter was scheduled for a hearing on April 7, 2014. Significantly, McLaughlin does not dispute that he received notice of that hearing.

         However, McLaughlin did not appear on April 7. A brief hearing was presided over by the same hearing justice who heard and denied McLaughlin's zoning appeal. It went as follows:

"[COUNSEL]: Your Honor, this is a motion for, requesting motion to comply. This was a zoning case. The decision was appealed, the Zoning Board, in Superior Court. The Court upheld the decision of the Zoning Board. Defendant is pro se. He filed an appeal with the Supreme Court. That was dismissed as improper back in January, and there's been no further filing. So at this time we'd ask for an order to move or remove the structure to comply with the zoning, and if that's not done within 90 days, to order a daily fine. We left the fine to your discretion. We would request up to $500 a day for that fine if it's not moved in the 90 days.
"THE COURT: Do you have an order prepared?
"[COUNSEL]: I do. Thank you, your Honor. We've left the blank for the dollar amount.
"THE COURT: $200 a day.
"[COUNSEL]: Thank you, your Honor.
"THE COURT: Motion's granted."

         And with that, the April 7 hearing concluded. An order entered, granting the zoning board's motion and setting a ninety-day clock for McLaughlin to comply with the setback requirements of the Tiverton Zoning Ordinance.

         On the very next day, April 8, 2014, McLaughlin filed a motion of his own. He denominated his filing as a "Motion to Vacate Judgment/Reconsider[.]" However, a letter accompanying that motion referred to his pleading as a "[m]otion to reconsider judgment * * *." A hearing on the motion was held on May 9, 2014.

         At the beginning of that hearing, the hearing justice sought to clarify what McLaughlin was seeking in his motion.[4] After McLaughlin raised a host of grievances, many of which related to his ...

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