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)
Plaintiff: Danial Calabro, Jr., Esq
Defendants: Peter F. Skwirz, Esq. Anthony DeSisto, Esq
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
FRANCIS X. FLAHERTY ASSOCIATE JUSTICE.
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.
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. 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.
reasons set forth in this opinion, we reverse the Superior
Court order denying McLaughlin's motion to vacate the
April 7, 2014 order.
Facts and Travel
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.
McLaughlin's Zoning Appeal
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. 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.
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
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
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."
colloquy, raising the specter of a forthcoming "separate
motion, " was a foreshadowing of things to come.
The Separate Motion
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
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.
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."
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.
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.
beginning of that hearing, the hearing justice sought to
clarify what McLaughlin was seeking in his
motion. After McLaughlin raised a host of
grievances, many of which related to his ...