Agenda - Planning Commission - 06/02/2016

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Zoning Bulletin April 25, 2016 I Volume 10 I Issue 8 Case Note: In its decision, the Suprerne Court of Rhode Island first addressed the issue of whether a litigant seeking review of a ruling on litigation expenses under Rhode Island's Equal Justice for Small Business and Individuals Act in a case on appeal from the decision of a zoning board can appeal from the trial court's decision on litigation expenses or must petition for a writ of certiorari. As a matter of first impression (i.e., the first time the court addressed the issue), it held that the Tarboxes were required to seek review of the litigation expenses decision by peti- tion for a writ of certiorari, instead of by appeal from the Superior Court's judgment. The court explained that because the case began in Superior Court as an appeal from the decision of a zoning board (in accordance with Rhode Island Gen. L. § 45-24-69), it was only after the Tarboxes prevailed in their zoning appeal in Superior Court that a motion for an award of reasonable litigation expenses under the Act could be brought and decided. After the motion was denied, the final judg- ment entered, from which an appeal to the Rhode Island Supreme Court was taken by the Tarboxes. "The final judgment encompassed both the decision on the merits of the zoning appeal and the denial of [the Tarboxes] motion for reasonable liti- gation expenses." Under such circumstances, said the court, the case involved review of "a judgment of the Superior Court on appeal from a decision of a zoning board," of which the proper procedure for obtaining review is to petition the Supreme Court for a writ of certiorari. The court concluded that "a litigant seeking [the Rhode Island Supreme Court's] review of a Superior Court trial justice's ruling on a request for reasonable litiga- tion expenses under the [A]ct in a case' that is in Superior Court on appeal from the decision of a zoning board under § 45-24-69 must petition [the Rhode Island Supreme Court] for a writ of certiorari.. " Because the court had never addressed that issue before, it opted to treat the Tarboxes' notice of appeal as the equivalent of a petition for a writ of certiorari and turn to the merits of the case. It noted, however, that "[ijn all future cases of this ilk —where a party appeals a decision of a zoning board to Superior Court under SS 45-24-69 and, after succeeding on the merits in that appeal, seeks reason- able litigation expenses under § 42-92-3(b)—a petition for a writ of certiorari is a prerequisite for review in [the Rhode Island Supreme CourtJ. " © 2016 Thomson Reuters 5