Opinion
C. A. WC-2019-0384
01-18-2022
ASA S. DAVIS, III, Appellant, v. TOWN OF EXETER ZONING BOARD OF REVIEW, sitting as a BOARD OF APPEAL, Appellee.
For Plaintiff: James P. Howe, Esq. John O. Mancini, Esq. For Defendant: James P. Marusak, Esq. Stephen J. Sypole, Esq.
For Plaintiff: James P. Howe, Esq.
John O. Mancini, Esq.
For Defendant: James P. Marusak, Esq.
Stephen J. Sypole, Esq.
DECISION
TAFT-CARTER, J.
Before the Court for decision is the appeal of Asa S. Davis, III (Appellant) from a decision of the Town of Exeter Zoning Board of Review, sitting as a Board of Appeal (ZBR), affirming the decision of the Town of Exeter Planning Board (Planning Board). The Court has jurisdiction pursuant to G.L. 1956 §§ 45-23-66 and 45-23-71.
I
Facts and Travel
Appellant owns property located at 0 Ten Rod Road, in the Town of Exeter, Rhode Island (the Property). (Compl. ¶ 1.) The Property is designated as Tax Assessor's Plat 36, Block 2, Lot 2. (Compl. ¶ 1; Certified R., Sept. 13, 2019 (Certified R.) at 11 (Zoning Certificate).) On October 24, 2018, Appellant filed a master plan application for a solar project known as "DuTemple Solar" (the Project), to be located on the Property. (Compl. ¶ 5; Certified R. at 3-4 (Appeal Appl.); Certified R. at 5-6 (Apr. 28, 2019 Davis Letter).) Appellant was assessed and paid an application fee of $30,050.99 when he submitted the master plan application. (Certified R. at 8 (Fee Calculation & Check).) The fee was assessed in accordance with the then-current Planning Board fee schedule. (Compl. ¶ 6; Apr. 28, 2019 Davis Letter.) The Project proceeded to hearing before the Planning Board, which denied Appellant's master plan application on March 26, 2019. (Compl. ¶ 8.)
Appellant was assessed his fee based upon the fee schedule approved and adopted by the Planning Board for solar energy development applications in September 2018. (Compl. ¶ 4; Apr. 28, 2019 Davis Letter; Fee Calculation & Check.) The September 2018 fee schedule imposed a charge of four cents per square foot of solar panel against the pending development. (Tr. at 7:5-8:19, June 20, 2019 (June Tr.); Fee Calculation & Check.) In February 2019, the Planning Board amended the solar development application fee schedule. (Compl. ¶ 7.) Pursuant to the February 2019 fee schedule, Appellant would have been assessed the maximum allowable fee of $5,000. Id.; see also June Tr. at 5:10-6:3. Thus, there was a difference of $25,050.99 in the fee amount charged against the Project. (Compl. ¶ 9.)
On March 28, 2019, Appellant submitted a public records request to the Town of Exeter, seeking information regarding, among other things, the actual costs incurred by the Planning Board in reviewing his master plan application. See Appellant's Suppl. Mem. Ex. A (Town Resp. to Public Records Request, May 8, 2019). In its response to Appellant's request, the Town of Exeter indicated that it "does not keep records in the form requested." Id. at 2. On April 1, 2019, Appellant requested a refund of $25,050.99 from the Town of Exeter Town Planner (Town Planner). (Compl. ¶ 9; June Tr. at 8:20-9:24, 13:1-13, 25:16-24.) On April 4, 2019, the Town Planner denied Appellant's request. (Compl. ¶ 10.) Appellant thereafter appealed the Town Planner's denial to the ZBR. Id. ¶ 11.
On May 23 and June 20, 2019, the ZBR heard Appellant's appeal. Id. ¶ 12; see May 23, 2019 Tr. (May Tr.); June Tr. In a decision dated July 1, 2019 (the Decision), the ZBR denied Appellant's appeal because "[t]he Town Planner had no authority to issue a refund based on a fee schedule that was adopted after the application was filed." (Compl. ¶ 13; Certified R. at 64-67 (Decision).) The Decision was recorded in the Exeter Land Evidence Records on the same day. See Decision; Compl. ¶ 14.
Appellant filed a Complaint on July 19, 2019, pursuant to § 45-23-71, asking the Court to reverse the decision of the ZBR and allow for a refund of the fee. (Compl. 3.) The ZBR filed its Answer on August 2, 2019 and a Motion to Dismiss on December 11, 2019. See Docket. Appellant objected on May 6, 2020. See id. The ZBR replied to Appellant's objection on May 20, 2020 and submitted a Supplemental Memorandum in Support of the Motion to Dismiss on August 21, 2020. See id.
Following a hearing on September 1, 2020, the Court entered an Order for appellate briefing by both parties. See Order, Sept. 22, 2020 (Taft-Carter, J.). Appellant filed his Memorandum of Law in Support of the Appeal on November 20, 2020. See Appellant's Mem. The ZBR filed its Brief in Response on December 8, 2020. See ZBR Resp. Br. At a hearing held on January 19, 2021, Appellant sought leave from this Court to supplement the administrative record, which was granted in an Order entered on January 29, 2021. See Order, Jan. 29, 2021 (Taft-Carter, J.). Thereafter, Appellant filed his Supplemental Memorandum on February 8, 2021. See Appellant's Suppl. Mem. Following another hearing on May 26, 2021, the Court entered an Order instructing the parties to "confer and provide the Court with a complete copy of the administrative record, including all hearing transcripts." (Order, June 9, 2021 (Taft-Carter, J.).)
II
Standard of Review
Under § 45-23-66, "an aggrieved party" may take "an appeal from any decision of the planning board, or administrative officer charged in the regulations with enforcement of any provisions . . . to the board of appeal[.]" Section 45-23-70 governs the standard of review to be utilized by a zoning board when sitting as a board of appeal, providing as follows:
"(a) [I]n instances of a board of appeal's review of a planning board or administrative officer's decision on matters subject to this chapter, the board of appeal shall not substitute its own judgment for that of the planning board or the administrative officer but must consider the issue upon the findings and record of the planning board or administrative officer. The board of appeal shall not reverse a decision of the planning board or administrative officer except on a finding of prejudicial procedural error, clear error, or lack of support by the weight of the evidence in the record.
". . .
"(d) The board of appeal shall keep complete records of all proceedings including a record of all votes taken, and shall put all decisions on appeals in writing. The board of appeal shall include in the written record the reasons for each decision." Section 45-23-70.
The Superior Court has review of these appellate decisions by a board of appeal pursuant to § 45-23-71. When an aggrieved party appeals a decision of a board of appeal, the party does so "by filing a complaint stating the reasons of appeal within twenty (20) days after the decision has been recorded and posted in the office of the city or town clerk." Section 45-23-71(a). The Court's review is conducted "without a jury." Section 45-23-71(b). "[T]he record of the hearing before the planning board" and any "additional evidence . . . necessary for the proper disposition of the matter . . . shall constitute the record upon which the determination of the court shall be made." Id. "The court shall not substitute its judgment for that of the planning board as to the weight of the evidence on questions of fact." Section 45-23-71(c).
On appeal, the Superior Court may
"affirm the decision of the board of appeal or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions or decisions which are:
"(1) In violation of constitutional, statutory, ordinance or planning board regulations provisions;
"(2) In excess of the authority granted to the planning board by statute or ordinance;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Id.
The Superior Court's review of a board of appeal's decision is "not de novo," and the Court therefore should not "consider the credibility of witnesses, weigh the evidence, or make its own findings of fact." Munroe v. Town of East Greenwich, 733 A.2d 703, 705 (R.I. 1999). Instead, the Superior Court's review "'is confined to a search of the record to ascertain whether the board's decision rests upon 'competent evidence' or is affected by an error of law.'" West v. McDonald, 18 A.3d 526, 531 (R.I. 2011) (quoting Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 290 (R.I. 1993)).
III
Analysis
The Appellate Record
The certified record in this case was provided in three different filings. First, on September 13, 2019, the Clerk for the ZBR submitted a certified record that included draft minutes from the May 23 and June 20, 2019 meetings of the ZBR. See Certified R. Thereafter, on January 2, 2020, the Clerk submitted a Supplemental Certification, consisting of the approved ZBR meeting minutes. See Suppl. Certification, Jan. 2, 2020. Finally, on June 7, 2021, the Town Clerk for the Town of Exeter submitted a Second Supplemental Certification, providing transcripts of the same ZBR meetings. See Second Suppl. Certification, June 7, 2021. The Court relies herein on the first certified record, excluding the draft minutes of the May 23 and June 20, 2019 meetings, and the transcripts of those meetings submitted in June 2021. Additionally, the Court relies on the Town of Exeter's response to Appellant's public records request, submitted pursuant to this Court's Order. See Town Resp. to Public Records Request, May 8, 2019; Order, Jan. 29, 2021 (Taft-Carter, J.).
Appellant argues that the record has been sufficiently developed to permit review by this Court and that the Decision of the ZBR is not supported by the record and is ultra vires, claiming that the Decision is affected by error of law, not supported by substantial evidence, in violation of constitutional and statutory law, made upon unlawful procedure, and characterized by an abuse of discretion. (Appellant's Mem. 1, 17-18.) Appellant argues that Rhode Island law mandates that the Master Plan Fee be refunded, citing § 45-23-58 and the Town of Exeter's Land Development and Subdivision Regulations. Id. at 3-5, 9-14. Appellant then contends that he followed the applicable protocols for seeking a refund, establishing his entitlement, and rendering the denial of his request unlawful. Id. at 14-17. As part of this argument, Appellant first claims that he has not waived his right to a refund, through either action or inaction. Id. at 14-16. Appellant then notes that his challenge to the Master Plan Fee was deemed timely by the ZBR. Id. at 16-17. Finally, Appellant contends that any argument that he is precluded from seeking judicial review under G.L. 1956 § 45-15-5 is without merit. Id. at 18-19. Consequently, Appellant requests that the Court reverse the Decision of the ZBR. Id. at 19.
The Court will address each of Appellant's three substantive arguments in turn.
A
Proper Procedure
The Court first addresses Appellant's contention that he followed the applicable protocols for seeking a refund, establishing his entitlement, and rendering the denial of his request unlawful. (Appellant's Mem. 14-17.) Specifically, Appellant states that he did not waive his right to a refund, through action or inaction, and that his filing was timely. Id.
1
Waiver
Appellant claims that he has not waived his right to a refund, through either action or inaction. Id. at 14-16.
The ZBR maintains that Appellant is precluded from arguing that he is entitled to receive a retroactive application of the February 2019 Planning Board fee schedule because he failed to raise the issue of the reasonableness of the fee schedule. (ZBR's Resp. Br. 5.) Next, the ZBR argues that Appellant's Complaint must be dismissed because he failed to exhaust his administrative remedies and, thus, the Court lacks subject matter jurisdiction. Id. at 10. Specifically, the ZBR argues that Appellant did not challenge the reasonableness of the fees he paid, without objection, until after his application was heard and denied. Id. at 11.
Appellant argues that waiver does not apply because the issue of the reasonableness of the costs of the fees he paid to the Town Planner was raised when he sought information about the basis for the costs following the Planning Board's denial of his master plan application, as well as being raised before the ZBR. (Appellant's Mem. 14-16; Appellant's Suppl. Mem. ¶ 7.)
The Rhode Island Supreme Court "generally will not consider on appeal an issue that was not raised before the trial court." Neuschatz v. Reitsma, No. PC-2002-1589, 2004 WL 1351325, at *4 (R.I. Super. May 24, 2004) (citations omitted); see also Patel v. Patel, 252 A.3d 1221, 1232 (R.I. 2021). "Thus, a party who fails to assert his objections is deemed to have waived his rights on appeal." Fiske v. MacGregor, Division of Brunswick, 464 A.2d 719, 726 (R.I. 1983). "Our Supreme Court also has articulated the rationale behind the 'raise-or-waive rule.'" Neuschatz, 2004 WL 1351325, at *4. "Not only does the rule serve judicial economy by encouraging resolution of issues at the trial level, it also promotes fairer and more efficient trial proceedings by providing opposing counsel with an opportunity to respond appropriately to claims raised." State v. Burke, 522 A.2d 725, 731 (R.I. 1987).
However, the "Rhode Island Supreme Court 'has not explicitly held that the raise-or-waive doctrine applies to administrative proceedings,' including zoning appeals." Carello v. Zoning Board of Review of the City of Providence, No. PC-2012-5979, 2013 WL 6714081, at *8 (R.I. Super. Dec. 17, 2013) (quoting East Bay Community Development Corporation v. Zoning Board of Review of the Town of Barrington, 901 A.2d 1136, 1153 (R.I. 2006)). "Moreover, the underlying principle of the doctrine-that the record below must be sufficient to permit a proper review of the alleged error at the administrative level-still applies." Id. (citing Charles H. Koch Jr., Administrative Law and Practice, § 8.27).
Here, the ZBR considered the issue of "whether the Town Planner erred when she denied [Appellant's] request for a partial refund of his Master Plan application fee." (Decision at 3.) The ZBR also considered the applicable standard of review when making its decision to deny Appellant's appeal. (May Tr. at 2:25-3:25; June Tr. at 27:15-28:12; Decision at 2-3.) The June transcript indicates that Appellant, through counsel, challenged the reasonableness of the amount of fees he paid to the Town Planner. (June Tr. at 8:20-9:24, 13:1-13, 25:16-24.) Thus, the ZBR's argument fails because the ZBR had a sufficient record before it in denying Appellant's appeal. See id.
Under Rhode Island law, "a plaintiff aggrieved by agency action must first exhaust his or her administrative remedies before bringing a claim before th[e] court." Burns v. Sundlun, 617 A.2d 114, 116 (R.I. 1992). The "exhaustion of administrative remedies" doctrine serves two purposes: "(1) it aids judicial review by allowing the parties and the agency to develop the facts of the case, and (2) 'it promotes judicial economy by avoiding needless repetition of administrative and judicial factfinding, perhaps avoiding the necessity of any judicial involvement.'" Id. at 117 (quoting Schwartz, Administrative Law § 8.33 at 542 (1991)). "Requiring a party to exhaust administrative remedies does not forward these purposes in situations in which an appeal to an administrative review board would be futile." Id.
The exhaustion of administrative remedies does not apply where the plaintiff has raised a pure question of law and, consequently, exhausting administrative remedies would have been futile. Burns, 617 A.2d at 117. Here, the ZBR stated in its own brief that "the Town Planner had no authority to issue a refund based on the request as it was presented to her by [Appellant]." (ZBR's Resp. Br. 12.) The record supports this: members of the ZBR stated during the June 20, 2019 hearing that the Town Planner "did not have the authority [to issue a refund]. It would have been wrong, if she had . . . ." (June Tr. at 12:11-14.) Further, here the ZBR members stated that the sole issue before them was whether the Town Planner had the "legal right" to issue a refund to Appellant. Id. at 24:3-10. Thus, because Appellant's appeal contained a purely legal question and the Town Planner had no discretion to determine whether she had the authority to issue Appellant a refund, exhaustion of the available administrative remedies would not have furthered that doctrine's purpose, making it futile.
2
Timeliness
Additionally, Appellant argues that his challenge to the Master Plan Fee was deemed timely by the ZBR. (Appellant's Mem. 16-17.) In contrast, the ZBR argues that Appellant failed to bring a timely appeal because he did not challenge the fee when he paid it, and the Town Planner did not issue a decision challengeable under § 45-23-71. (ZBR's Resp. Br. 12, 14.)
The ZBR's argument that Appellant's appeal was untimely must fail because the ZBR found the appeal timely in issuing its Decision to deny Appellant's appeal. (Decision at 4.) Having previously found Appellant's appeal timely, the ZBR cannot now argue that Appellant failed to bring a timely appeal. Id. Likewise, the ZBR's argument that the Town Planner did not issue an appealable decision is flawed because the ZBR characterized the Town Planner's denial of Appellant's refund request as a "Decision." (Decision at 4; Certified R. at 49 (Town Planner Refund Denial Letter).) Furthermore, Appellant complied with the requirements of § 45-23-67 when he appealed the Town Planner's denial of his refund request and completed an appeal application with an attached letter explaining his appeal. See Appeal Appl; Apr. 28, 2019 Davis Letter. Thus, Appellant's appeal of the Town Planner's denial of his refund request was timely and properly brought before the ZBR.
B
Section 45-15-5Appellant also contends that any argument that he is precluded from seeking judicial review under § 45-15-5 is without merit. (Appellant's Mem. 18-19.) This contention is addressed toward the ZBR's argument that Appellant failed to comply with § 45-15-5 because he failed to notify the Exeter Town Council of his request for a refund. (ZBR's Resp. Br. 15.) According to the ZBR, § 45-15-5 "clearly applies here because [Appellant] is seeking to recover money from the Town." Id. Thus, the ZBR claims that Appellant's Complaint should be dismissed. Id.
Appellant argues that § 45-15-5 does not apply because his appeal is brought pursuant to § 45-23-71, which provides for appeals from municipal zoning boards to the Superior Court. (Appellant's Mem. 18.) Appellant argues that under State v. Eight Cities and Towns, 571 A.2d 27 (R.I. 1990), his request for a refund does not constitute a "claim for money" for purposes of § 45-15-5. Id. at 18-19.
Under § 45-15-5:
"Every person who has any money due him or her from any town or city, or any claim or demand against any town or city, for any matter, cause, or thing whatsoever, shall take the following method to obtain what is due: The person shall present to the town council of the town, or to the city council of the city, a particular account of that person's claim, debt, damages, or demand, and how incurred or contracted; which being done, in case just and due satisfaction is not made to him or her by the town or city treasurer of the town or city within forty (40) days after the presentment of the claim, debt, damages, or demand, the person may commence his or her action against the treasurer for the recovery of the complaint." Section 45-15-5.
Our Supreme Court in Eight Cities and Towns held that "the Legislature, in enacting what is now § 45-15-5 by speaking in terms of 'claim,' 'debt,' 'damages,' or 'demand,' was using these words in a monetary context." Eight Cities and Towns, 571 A.2d at 29. The State of Rhode Island sought declaratory judgment as to whether the State was responsible for withholding and paying employers' taxes for municipal police and fire departments. Id. at 28. Our Supreme Court in Eight Cities and Towns reasoned that the fact that a municipality was found liable for damages under a judgment did not trigger the requirements of § 45-15-5 because a declaratory judgment claim was not a monetary claim against the municipalities. Id. at 29.
Here, Appellant filed his Complaint under § 45-23-71, which provides a statutory cause of action for appeals from municipal zoning board decisions to the Superior Court. (Compl. ¶ 15.) Like the State in Eight Cities and Towns, which sought declaratory judgment under G.L. 1956 § 9-30-1, Appellant's claim is an appeal from the ZBR's denial of his appeal, not a claim for money. Id. ¶ 13; Eight Cities and Towns, 571 A.2d at 29. Appellant does not allege that he is owed a debt by the Town of Exeter. (Compl. ¶¶ 2-10.) Rather, Appellant challenges the fees that were paid. Id. Furthermore, the Town of Exeter is also not a party. Id. Thus, similar to the State's filing of its declaratory judgment action in Eight Cities and Towns, Appellant properly brought his claim pursuant to § 45-23-71 as an appeal from the ZBR's Decision denying his appeal. Such an action does not trigger the requirements of § 45-15-5.
C
Rhode Island Law
Finally, the Court assesses Appellant's argument that Rhode Island law mandates the refund of the Master Plan Fee in this case. In support of this argument, Appellant cites § 45-23-58 and the Town of Exeter's Land Development and Subdivision Regulations. (Appellant's Mem. 3-5, 9-14.) The ZBR argues that, because the 2019 fee schedule did not explicitly state that it applied retroactively, Appellant is not entitled to a refund. (ZBR's Resp. Br. 9-10.) The ZBR claims that, absent an explicit statement that an amendment to the fee schedule applied retroactively, the Town Planner could not issue a refund to Appellant. Id. at 10.
Appellant argues that, under § 45-23-58, the Town Planner only has the authority to collect reasonable fees "in an amount not to exceed [the] actual costs incurred[.]" (Appellant's Mem. 9-14; Appellant's Suppl. Mem. 1-2.) Appellant also argues that, under Kent County Water Authority v. Rhode Island Department of Health, 723 A.2d 1132 (R.I. 1999), the fee schedule amounted to an illegal tax. (Appellant's Mem. 10-11.) Thus, because Appellant argues that remand would be futile, Appellant requests as remedy a refund of the difference of $25,050.99 under the fee schedules. Id. at 13-14.
Under § 45-23-58:
"Local regulations adopted pursuant to this chapter may provide for reasonable fees, in an amount not to exceed actual costs incurred, to be paid by the applicant for the adequate review and hearing of applications, issuance of permits and recordings of subsequent decisions." Section 45-23-58.
In Kent County Water Authority, the Rhode Island Supreme Court held that a collected fee's purpose and intent was to pay for costs incurred in carrying out the agency's statutory duties, and the fees "were roughly equivalent to [the] costs in implementing such regulation[.]" Kent County Water Authority, 723 A.2d at 1136. Therefore, the fees did not constitute an unconstitutional, impermissible tax. See id. The plaintiff in Kent County Water Authority argued that annual approval fees paid by it to the Rhode Island Department of Health constituted a tax, from which the plaintiff would be statutorily exempt, because the Department of Health deposited the monies collected into the state general fund. Id. However, because the fees' purpose was to cover the Department of Health's carrying costs, our Supreme Court reasoned that the fees were not a tax, absent a showing that the fees were not approximately equivalent to the Department of Health's costs. Id.
The Planning Board's actual costs in reviewing Appellant's master plan application are the issue of another ongoing suit in which Appellant is challenging the Planning Board's enactment of the solar fee policy and its failure to keep records regarding costs/fees, Asa S. Davis III, et al. v. Town of Exeter et al., No. WC-2020-0226, filed June 1, 2020. (Appellant's Mem. Ex. I (Compl., WC-2020-0226), ¶¶ 17-46.) The Town of Exeter did not maintain records regarding the cost to review Appellant's master plan application. See Town Resp. to Public Records Request, May 8, 2019. The Town of Exeter claimed that, under G.L. 1956 § 38-2-3(h), it had no duty to produce such records because it did not maintain them. Id.
Given that the ZBR's Decision was constrained by its standard of review, as is the Superior Court, remand here would be futile. See Roger Williams College v. Gallison, 572 A.2d 61, 62 (R.I. 1990) (noting that the Court's authority to remand under § 45-23-71(c) "should not be exercised in such circumstances as to allow remonstrants another opportunity to present a case when the evidence presented initially is inadequate"). In fact, in Appellant's Complaint challenging the Planning Board's enactment of the solar fee policy and its failure to keep records regarding costs/fees, Appellant acknowledges that this Court cannot reach the substantive merits of his appeal. See Appellant's Mem. Ex. I (Compl., WC-2020-0226), ¶ 53 ("The claims articulated herein cannot be adjudicated in the Zoning Appeal, given that matter's administrative nature."). Consequently, the Court must decline to consider the merits of Appellant's challenge to the fee paid by Appellant, as that is the subject of a separate action and not properly reviewable under the current administrative appeal posture. See id.
IV
Conclusion
For the reasons stated above, the Court finds that while Appellant's appeal in this matter was timely brought, the essential merits of Appellant's appeal of the Decision of the ZBR cannot be reached in the current administrative appeal. Counsel shall prepare the appropriate order.