Agenda - Planning Commission - 06/02/2016

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April 25, 2016 I Volume 10 I.Issue 8 Zoning Bulletin that if the Tarboxes were qualifying parties under the Act and met other prerequisites then they may be entitled to an award of reasonable litigation expenses under the Act. In so concluding, the court first held that a municipal zoning board is an "agency" under the Act. The court explained that the Act defines the term "agency" as: "any state and/or municipal board, commission, council, department, or of- ficer, other than the legislature or the courts, authorized by law [1] to make rules or to determine contested cases, [2] to bring any action at law or in equity, including, but not limited to, injunctive and other relief, or [3] to initiate crim- inal proceedings. This shall include contract boards of appeal, tax proceed- ings, and employment security administrative proceedings." (Rhode Island G. L. § 42-92-2(3).) Here, the Board had argued that it was not an "agency" under the Act because the Tarboxes' variance application was not a contested case. The court rejected that argument, noting that the "Act requires only that the entity be `authorized by law. . .to determine contested cases,' (§ 42-92- 2(3)) not that it do so in a particular case or in every case." Unquestionably, said the court, zoning boards are authorized by law to make rules and determine contested cases. (See § 45-24-56(a); § 45-24-57(1).) Therefore, concluded the court, a zoning board qualifies as an "agency" under the Act. The court emphasized that was so even though zoning boards lack some of the other powers enumerated in the Act's definition of agency because the definition of "agency" was "phrased in the disjunctive." The court also held that the hearing before the Board on the Tarboxes' variance application qualified as an adjudicatory proceeding under the Act. The court explained that § 42-92-2(2) defines, in pertinent part, the team "adjudicatory proceeding" as: "any proceeding conducted by or on behalf of the state administratively or quasijudicially which may result in the loss of benefits, the imposition of a fine, the adjustment of a tax assessment, the denial, suspension, or revocation of a license or permit or which may result in the compulsion or restriction of the activities of a party." In this case, the court found there was "no dispute that the hearing on the variance application, involved `notice and an opportunity to be heard.' " Moreover, the court found that an application for a variance was like a request for a permit or license in that it sought permission to do something that would otherwise not be permissible. Therefore, the court held that the denial of an application for a variance is, for the purposes of the Act, anal- ogous to the denial of a license or a permit. Accordingly, the court held that, under the circumstances of the case, the hearing on the variance ap- plication qualified as an adjudicatory proceeding under the Act. However, the court's holdings as to "agency" and "adjudicatory proceed- ings" did not, standing alone, entitle the Tarboxes to an award of reason- able litigation expenses. The court remanded the matter to the Superior Court to address whether the Tarboxes met other prerequisites required for the award of reasonable litigation expenses under the Act. 4 © 2016 Thomson Reuters