From Casetext: Smarter Legal Research

Roger Williams College v. Gallison

Supreme Court of Rhode Island
Mar 30, 1990
572 A.2d 61 (R.I. 1990)

Summary

holding that remand for further proceedings is inappropriate to allow opponents of a special exception another opportunity to present evidence when the evidence initially presented was inadequate and there was no defect in the original proceedings and a record of the proceedings was available to the reviewing court

Summary of this case from City of Reno v. Lars Andersen & Associates, Inc.

Opinion

No. 89-551-M.P.

March 30, 1990.

Appeal from the Superior Court, Providence County, Campanella, J.

James DiPrete, Jr., Hinckley, Allen, Synder Comen, Providence, for petitioner.

Eric Paul Chappell, Chappell Chace, Portsmouth, William P. Dennis, Wright, O'Hara Dennis, Warren, Bruce H. Cox, East Providence, for respondents.


OPINION


This petition for certiorari came before the court for oral argument March 8, 1990. The petitioner seeks review of an order of the Superior Court that remanded the case to the Zoning Board of Review for the Town of Bristol for a further evidentiary hearing. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that the trial justice erred in remanding the case for a further evidentiary hearing and should have entered judgment requiring the zoning board to grant the special exception to allow construction of student dormitories as requested in the petitioner's application.

The trial justice found that a public hearing was held before the Zoning Board on April 11 and May 15 of 1989. All parties were represented by counsel. The petitioner presented seven witnesses, including three expert witnesses: a registered professional architect, a certified real estate appraiser, and a registered professional traffic engineer. The trial justice found that all petitioner's witnesses were subjected to vigorous cross-examination by members of the Zoning Board and by remonstrants through counsel. In opposition to petitioner's application, neighbors spoke and raised various concerns. The only expert "evidence" submitted by remonstrants was a memorandum summary prepared by a real estate appraiser. This memorandum also expressed an opinion concerning the effect of the proposed construction upon traffic.

The trial justice concluded that the Zoning Board erred in relying upon this written memorandum on the ground that no cross-examination of remonstrants' expert was allowed. The trial justice also found that remonstrants' real estate expert did not claim any expertise in traffic engineering and that, therefore, his opinion in this area was merely a lay judgment without force or effect. Toohey v. Kilday, 415 A.2d 732, 737 (R.I. 1980). The trial justice concluded by finding that the record did not substantiate the decision of the Zoning Board denying the application for special exception. He then remanded the case to the Zoning Board to take further evidence in respect to "traffic studies" and to address whether the proposed use would be compatible with neighboring land use.

We recognize that G.L. 1956 (1988 Reenactment) § 45-24-20(d) confers upon the trial justice the authority to remand a case to the zoning board of review for further proceedings. This authority, however, should not be exercised in such circumstances as to allow remonstrants another opportunity to present a case when the evidence presented initially is inadequate. See Betts v. Board of Adjustment of Linden, 72 N.J. Super. 213, 178 A.2d 209 (1962). The remand for further proceedings should be based upon a genuine defect in the proceedings in the first instance, which defect was not the fault of the parties seeking the remand, see, e.g., Kraemer v. Zoning Board of Review of Warwick, 98 R.I. 328, 201 A.2d 643 (1964) and Center Realty Corp. v. Zoning Board of Review of Warwick, 96 R.I. 482, 194 A.2d 671 (1963), or upon the fact that there is no record of the proceedings upon which a reviewing court may act. Holliston Sand Co. v. Zoning Board of Review of North Smithfield, 98 R.I. 93, 200 A.2d 9 (1964).

In the case at bar, however, a full evidentiary presentation was made by the petitioner concerning all relevant issues. The failure of the remonstrants to present persuasive and competent evidence on these issues was certainly not the fault of the petitioner. Therefore, we are of the opinion that it is inappropriate to require the petitioner to go through what in effect would be a de novo hearing in order that the remonstrants might present evidence that should have been available to them in the first instance.

For the reasons stated, the petition for certiorari is hereby granted. The order remanding the case to the Zoning Board of Review for the Town of Bristol is hereby quashed. The papers in the case are remanded to the Superior Court with directions to enter a judgment reversing the decision of the Zoning Board and requiring the issuance of the special exception subject to the conditions and the safeguards that have been set forth on the record and are further listed on pages 17 and 18 of the petitioner's memorandum dated February 3, 1990.


Summaries of

Roger Williams College v. Gallison

Supreme Court of Rhode Island
Mar 30, 1990
572 A.2d 61 (R.I. 1990)

holding that remand for further proceedings is inappropriate to allow opponents of a special exception another opportunity to present evidence when the evidence initially presented was inadequate and there was no defect in the original proceedings and a record of the proceedings was available to the reviewing court

Summary of this case from City of Reno v. Lars Andersen & Associates, Inc.

holding that the authority to remand "should not be exercised in such circumstances as to allow remonstrants another opportunity to present a case when the evidence presented initially is inadequate"

Summary of this case from Romanik v. Meinertz

holding that the authority to remand "should not be exercised in such circumstances as to allow remonstrants another opportunity to present a case when the evidence presented initially is inadequate."

Summary of this case from Thompson v. Carlson

recognizing that although the Superior Court has "the authority to remand a case to the zoning board of review for further proceedings" such remand "should not be exercised in such circumstances as to allow remonstrants another opportunity to present a case when the evidence presented is initially inadequate . . ." rather "[t]he remand for further proceedings should be based upon a genuine defect in the proceedings in the first instance, which defect was not the fault of the parties seeking the remand"

Summary of this case from Fiske v. Westerly Brd. of Tax Asses

recognizing that although the Superior Court has "the authority to remand a case to the zoning board of review for further proceedings," such remand "should not be exercised in such circumstances as to allow remonstrants another opportunity to present a case when the evidence presented is initially inadequate . . ." rather "[t]he remand for further proceedings should be based upon a genuine defect in the proceedings in the first instance, which defect was not the fault of the parties seeking the remand"

Summary of this case from Ray Reedy, Inc. v. Town of North Kingstown

refusing to remand to the board, stating a "remand for further proceedings should be based upon a genuine defect in the proceedings in the first instance, which defect was not the fault of the parties seeking the remand"

Summary of this case from United States Cellular Corp. v. Board of Adjustment

In Roger Williams College v. Gallison, 572 A.2d 61 (R.I. 1990), the Rhode Island Supreme Court found that the trial justice erred in remanding the instant action for further evidentiary hearing after a full evidentiary presentation was already made by the petitioner and the remonstrants failed to present persuasive and competent evidence on issues.

Summary of this case from Charles Orms Assocs. v. Zoning Bd. of Review of Providence

stating a remand "should be based upon . . . the fact that there is no record of the proceedings upon which a reviewing court may act."

Summary of this case from Colwell v. Town of Coventry Zoning Bd. of Review

concerning an administrative zoning appeal, the Supreme Court noted that the authority to remand should not be exercised by a trial justice to "allow remonstrants another opportunity to present a case when the evidence presented initially is inadequate" and that such remand should be based upon a defect in the proceedings, "which defect was not the fault of the parties seeking the remand"

Summary of this case from Chattman, v. City of Woonsocket, 02-5587 (2003)

In Rogers Williams College v. Gallison. 572 A.2d 61 (R.I. 1990), the Supreme Court recognized the Superior Court's authority to remand a case to a zoning board for further proceedings but cautioned that "[t]his authority, however, should not be exercised in such circumstances as to allow remonstrants another opportunity to present a case when the evidence presented initially is inadequate."

Summary of this case from Vendettuoli v. Dimuro, 91-4520 (1993)
Case details for

Roger Williams College v. Gallison

Case Details

Full title:ROGER WILLIAMS COLLEGE v. Raymond GALLISON, Jr., et al

Court:Supreme Court of Rhode Island

Date published: Mar 30, 1990

Citations

572 A.2d 61 (R.I. 1990)

Citing Cases

Shelter Cove Props., LLC v. Town of Charlestown Zoning Bd. of Review

However, a reviewing court may remand a zoning board decision for further proceedings where there is no…

Wall v. Minifie, 2003-0130 (2004)

However, though the reviewing court may "remand the case for further proceedings, or may reverse or modify…