142 A.3d 191
R.I.2016Background
- Henry and Mary Tarbox applied to Jamestown Zoning Board for a dimensional variance to convert their single-family home into a permitted duplex on an undersized lot; no objectors appeared and the hearing was transcribed.
- The board split 3–2 in favor but denied the variance because four votes were required under the Zoning Enabling Act.
- Plaintiffs appealed to Superior Court under § 45-24-69; the Superior Court reversed and granted the variance.
- After prevailing, plaintiffs moved for reasonable litigation expenses under Rhode Island’s Equal Access to Justice for Small Businesses and Individuals Act (the act); the trial justice denied the motion, holding the zoning board was not an “agency” and the hearing was not an “adjudicatory proceeding” under the act.
- Plaintiffs appealed to this Court; the Supreme Court treated the appeal as a certiorari-equivalent, reached the merits, and remanded for further findings on remaining statutory prerequisites for an award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs used correct appellate procedure to seek this Court review of denial of EAJA fees | Tarbox argued an appeal to this Court was proper from the Superior Court denial of fees | Board argued certiorari was required because the APA supplements the act and certiorari governs review | Court held certiorari is the proper vehicle for review of a Superior Court judgment on a zoning appeal, but treated this appeal as equivalent to certiorari and proceeded to the merits |
| Whether a municipal zoning board qualifies as an “agency” under the act | Tarbox: zoning board is an agency because statute includes municipal boards that are authorized to determine contested cases | Board: not an agency because it lacks some powers in definition (e.g., to initiate suits/criminal prosecutions) and uncertainty about identifying the adjudicative officer | Court held zoning boards meet the act’s definition of “agency” because authorization to make rules or determine contested cases suffices |
| Whether the variance hearing was an “adjudicatory proceeding” under the act | Tarbox: the hearing was quasi‑judicial with notice, testimony, counsel, and thus an adjudicatory proceeding analogous to permit/license denial | Board: hearing was not an “adjudicatory proceeding” (or an adversary adjudication) because no opposing private party contested | Court held the variance hearing was an adjudicatory proceeding; denial of a variance is analogous to denial of a license or permit under the act |
| Whether plaintiffs were entitled to EAJA fees on these facts | Tarbox: prevailing in Superior Court should permit award; trial justice failed to apply act correctly | Board: because it was not an agency/hearing not adjudicatory, fees inappropriate | Court found plaintiffs satisfied agency and adjudicatory‑proceeding elements but remanded for Superior Court findings on other statutory prerequisites (party status, substantial justification, written findings on fees) |
Key Cases Cited
- Fox v. Norberg, 110 R.I. 418, 293 A.2d 520 (R.I. 1972) (APA review limited to proceedings under § 42-35-15)
- Caran v. Freda, 108 R.I. 748, 279 A.2d 405 (R.I. 1971) (APA does not apply to municipal zoning boards)
- Krikorian v. Rhode Island Dep’t of Human Servs., 606 A.2d 671 (R.I. 1992) (act modeled on federal EAJA; scope of awards and court findings)
- Taft v. Pare, 536 A.2d 888 (R.I. 1988) (award of fees under the act after judicial review of agency decision)
- Campbell v. Tiverton Zoning Bd., 15 A.3d 1015 (R.I. 2011) (distinguishing agency adjudicatory proceedings from Superior Court declaratory actions)
- Kent v. Zoning Bd. of Review of Barrington, 74 R.I. 89, 58 A.2d 623 (R.I. 1948) (variance as permission to use land in a manner otherwise prohibited)