NEW ENGLAND DEVELOPMENT, LLC v. Noel BERG.
No. 2006-94-Appeal.
Supreme Court of Rhode Island.
Jan. 12, 2007.
913 A.2d 363
Jeanne M. Scott, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, and SUTTELL, JJ.
OPINION
Justice FLAHERTY, for the Court.
The desire of New England Development, LLC (plaintiff or NED), to build a substantial shopping center in Tiverton (Tiverton Commons) and an allegation that the Tiverton Planning Board (planning board) failed to approve NED‘s master plan in a timely fashion brings this dispute before the Court. The planning board voted to reject NED‘s master plan application, but NED contends that the planning board‘s failure to file a written decision in accordance with a statutory deadline triggered its entitlement to a certificate of the planning board‘s failure to act and the resulting approval of its master-plan application. When the administrative officer for the Tiverton Planning Board, Noel Berg (Berg), refused to issue that certificate, NED petitioned the Superior Court for a writ of mandamus to compel Berg to issue it, contending that, in view of the board‘s failure to act, Berg‘s duty to issue the certificate was ministerial in nature. The trial justice denied that petition, and NED timely appealed. For the reasons discussed in this opinion, we affirm the judgment of the Superior Court.
Statutory Scheme
In 1992, the General Assembly enacted
“(c) * * * [I]t is the intent of the general assembly:
“(1) That the land development and subdivision enabling authority contained in this chapter provide all cities and towns with the ability to adequately address the present and future needs of the communities;
“(2) That the land development and subdivision enabling authority contained in this chapter require each city and town to develop land development and subdivision regulations in accordance with the community comprehensive plan, capital improvement plan, and zoning ordinance and to ensure the consistency of all local development regulations;
“(3) That certain local procedures for review and approval of land development and subdivision are the same in every city and town;
“(4) That the local procedure for integrating the approvals of state regulatory agencies into the local review and approval process for land development and subdivision is the same in every city and town; and
“(5) That all proposed land developments and subdivisions are reviewed by local officials, following a standard process, prior to recording in local land evidence records.”
NED filed what is described in the act as a major land development master plan application for Tiverton Commons. Section
Section
Having set out the pertinent statutory framework for planning board consideration of major land developments, we now undertake a brief review of the facts that gave rise to the appeal currently before us.
II
Facts and Procedural History
NED began its quest to build Tiverton Commons on a forty-acre site on the south side of Souza Road4 in Tiverton on September 3, 2004 by submitting a major land development/master plan application to the Tiverton Planning Board. On October 27, 2004, the board issued a “Certificate of Completeness” for the application, setting in motion the 120-day clock, by the end of which the board was required to “approve of the master plan as submitted, approve with changes and/or conditions, or deny the application.” Section
In an effort to address local concerns, NED subsequently consented to eight different extensions of the statutory decision deadline.5 During the time that NED‘s application was pending, the planning board discussed the application at regularly held meetings, and it also held workshops at which NED and the planning board worked jointly on the plan in an effort to make it mutually acceptable. At the September 29, 2005, board meeting, the parties agreed to an ultimate deadline extension, establishing December 30, 2005, as the final date for the planning board to take action on the application. At this same meeting, the board and NED agreed that NED would withdraw the original master plan that called for a 335,000-square-foot complex, and replace it with
NED‘s efforts did not bear fruit, however, and when the planning board met on November 21, 2005, its members voted unanimously to deny the master plan application for Tiverton Commons. But, no written decision of the planning board was filed with the town clerk before December 30, 2005. Consequently, on January 3, 2006, NED requested that Berg issue it a certificate of the planning board‘s failure to act by January 9, 2006. Issuance of that certificate would have resulted in the approval of the master plan by the terms of
After the mandamus petition was filed, Berg, in a letter dated January 11, 2006, informed NED that the November 21, 2005 vote to deny the master plan application was all (in the opinion of the planning board) that was required to be done to satisfy the statutory requirements, and, therefore, he could not issue NED the certificate it had requested. Shortly thereafter, on January 13, 2006, Berg completed a written decision denying the master plan application, and he filed it with the town clerk. That decision was never presented to or voted on by the planning board. It is also noteworthy that NED filed a timely appeal of that decision to the Tiverton Board of Appeals on February 1, 2006.8 That appeal has been stayed pending the outcome of this appeal.
A trial was held in Superior Court on the petition for writ of mandamus on February 28, 2006. At that trial, NED asserted that
In response, Berg interposed several arguments. First, he argued that NED lacked standing because it did not own the land it sought to develop.9 Second, Berg maintained that the requirement that the board make a decision on the master plan within the statutory time period did not include a requirement that a written decision be issued within that period, and, therefore, the November 21, 2005 vote satisfied the planning board‘s statutory duty. Third, he took the position that mandamus was unavailable to NED because an administrative remedy had not been exhausted—namely, an appeal of the denial by the planning board to the Tiverton Board of Appeals.10
In his decision, the trial justice summarily dismissed the standing argument and proceeded to address the substantive argument on the statutory requirements and the question of exhaustion of administrative remedies. He found that, read together,
Despite these findings, the trial justice nevertheless denied NED‘s mandamus petition because he concluded that, procedurally, NED was required to pursue an administrative appeal of the planning board‘s denial of its application to the Tiverton Board of Appeals before seeking relief in the Superior Court.
III
Standard of Review
A writ of mandamus is an extreme remedy that will be issued only when: (1) the petitioner has a clear legal right to the relief sought, (2) the respondent has a ministerial duty to perform the requested act without discretion to refuse, and (3) the petitioner has no adequate remedy at law. Union Station Associates v. Rossi, 862 A.2d 185, 193 (R.I. 2004). “A ministerial function is one that is to be
IV
Analysis
On appeal, NED maintains that the trial justice erred when he denied the writ of mandamus, because the statutory scheme provided it a clear legal right to a certificate of the planning board‘s failure to act, that a mere ministerial duty was imposed on Berg to issue that certificate without any exercise of discretion, and that it had no adequate remedy at law to obtain the relief it sought. Berg, on the other hand, asserts that NED did not have a clear legal right to the issuance of the certificate because the planning board denied the application within the statutory time limit by voting to do so at its meeting on November 21, 2005.11
Berg, on the other hand, posits that the statutory scheme does not require a written decision be filed by the statutory deadline, but that only an action on the part of the board—in this case a vote denying the application—was necessary by that time. Additionally, Berg asks this Court to agree with the trial justice that NED has not yet exhausted its administrative remedies—via an appeal of the denial of the application—and that, therefore the petition for mandamus is improper.
For mandamus to lie, NED must show that all three conditions required for the writ to issue are met: (1) that NED has a clear legal right to the relief sought—the issuance of the certificate of the planning board‘s failure to act by the administrative officer, Berg; (2) that the action requested of the government official was ministerial in nature—that Berg had no discretion to withhold the certificate; and (3) that mandamus is the only means for NED to obtain the relief sought. Because we hold NED does not have a clear legal right to the issuance of the certificate, we address only that issue here.
The trial justice found that §§
Section
“Decision. The planning board shall, within one hundred and twenty (120) days of certification of completeness, or within a further amount of time that may be consented to by the applicant, approve of the master plan as submitted, approve with changes and/or conditions, or deny the application, according to the requirements of
§ 45-23-63 .”
Section
“Failure to act. Failure of the planning board to act within the prescribed period constitutes approval of the master plan, and a certificate of the administrative officer as to the failure of the planning board to act within the required time and the resulting approval will be issued on request of the applicant.”
Conversely,
When discerning the meaning of a statute, we consistently have stated that we give the words of the statute their plain and ordinary meaning. Pastore, 900 A.2d at 1078. However, as in this case, when the language of a statute is not susceptible to literal interpretation, it is ambiguous, and we must look to give meaning to the intent of the General Assembly. DiPrete, 845 A.2d at 279. Therefore, we will look at the entire statute, including the “nature, object, language and arrangement” of the provisions to construe their meaning. DiCicco, 707 A.2d at 253 n. 1.
We agree with the trial justice that
NED argues that the language of
In Bendick, 576 A.2d at 115, the applicable statute said that “the director shall make his decision on the application * * * within a period of six weeks,” yet the decision was not issued in that time frame. Like NED in this case, the applicant in that action sought a writ of mandamus, contending that a failure to act within the statutory time frame estopped the DEM director from denying his application. Id.
In the case now before us, we are presented with a very similar situation. NED filed an application for master plan approval, and
A sanction is found, however, in the language of
“Act,” in its plain and ordinary meaning, means “to do something.” Random House Unabridged Dictionary 19 (2d ed. 1993). That definition clearly encompasses a broader scope of behavior than merely filing a written decision. In fact, in this case, the planning board clearly did do “something.” On November 21, 2005, the planning board voted to deny the master plan application.
NED directs our attention to Board of Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 202 N.E.2d 409, 414 (1964), a Massachusetts case in which a similarly worded statute directed the constructive approval of a development plan because the planning board failed to file a written decision by the statutory deadline. However, there is a very significant difference between the wording of the Massachusetts statute, and the wording of the statute currently before us. The Massachusetts statute attaches a sanction to the failure of the planning board to take a “final action.” Id. at 410. Furthermore, the sanction is found in the same section of the statute as the requirement that the decision be written. Id. Here, on the other hand, the mandatory section of the statute requires “action” as opposed to “final action,” and the sanction is in a separate section of the statute than the requirement that a written decision be filed.
We therefore hold that
We do not believe that the Legislature intended to tacitly remove the authority of municipalities to control development within their borders when they have timely voted to deny a master plan application but failed to file a written decision within the prescribed period. Section
We are cognizant of the fact that developers who are faced with a planning board decision denying their applications cannot appeal those decisions until a written decision has been filed with the town clerk. Section
V
Conclusion
For the reasons stated in this opinion, we affirm the judgment of the Superior Court, to which we remand the papers in this case.
Justice ROBINSON did not participate.
Justice GOLDBERG, concurring in part and dissenting in part.
Although I concur in the result in this case, the majority and I part company in two respects. The trial justice decided this case on the basis of New England Development, LLC‘s (NED) failure to exhaust its administrative and legal remedies. I agree with this holding and am of the opinion that the exhaustion doctrine serves as a bar to any relief. Thus, I
I write separately because I do not agree that in the context of a major land development plan, a planning board is required to issue a written decision within 120 days of the certification that the application is complete; nor am I of the opinion that this provision is directory.
Exhaustion of Remedies
The trial justice found that “[a]lthough NED‘s arguments on the merits may be valid, this justice finds that the developer is, at present, procedurally barred from the remedy it now seeks in Superior Court.” Citing our decision in Krivitsky v. Town of Westerly, 849 A.2d 359, 362 (R.I. 2004) (Krivitsky II), the trial justice found that “the exhaustion [of remedies] doctrine is applicable in the context of those who might otherwise seek a writ of mandamus.” Significantly, the trial justice noted that NED had perfected its appeal to the Tiverton Board of Appeals, thereby invoking the administrative process. He also rejected NED‘s argument that our holding in Krivitsky II was inapplicable to the facts in this case.
In Krivitsky II, 849 A.2d at 363, we vacated an order of mandamus upon our determination that the plaintiff failed to exhaust its administrative appeals to various town officials. We also noted that if the license ultimately was denied by the town, the plaintiff could seek review in this Court by way of writ of certiorari. Id. I am of the opinion that when faced with an application for writ of mandamus, the trial justice‘s first order of business should be an exhaustion analysis.
Although
I also respectfully dissent from the majority‘s conclusion “that
Statutory Construction
To reach the conclusion that
When the language of a statute is free from ambiguity and capable of only one interpretation, there is no room for statutory construction and “this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings.” Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996). “When a statute is ambiguous, however, we must apply the rules of statutory construction and examine the statute in its entirety to determine the intent and purpose of the Legislature.” Harvard Pilgrim Health Care of New England, Inc. v. Rossi, 847 A.2d 286, 290 (R.I. 2004) (citing Direct Action for
When it enacted the Rhode Island Land Development and Subdivision Review Enabling Act of 1992, the Legislature directed that all municipalities adopt procedures “intended to provide thorough, orderly, and expeditious processing of development project applications.” Section
Notably, from the time the application is certified as complete,
Because
Finally, I cannot agree with the majority‘s conclusion that the 120-day period for a written decision is directory, because the statute sets forth mandatory compliance parameters and has heavy consequences for the board‘s failure to comply with its provisions. See
Notes
“(b) Certification. The application must be certified complete or incomplete by the administrative officer within sixty (60) days, according to the provisions of
“* * *
“(e) Decision. The planning board shall, within one hundred and twenty (120) days of certification of completeness, or within a further amount of time that may be consented to by the applicant, approve of the master plan as submitted, approve with changes and/or conditions, or deny the application, according to the requirements of
“Motion to accept the offer of New England Development to permanently withdraw the 335,000 SF Master Plan Proposal currently being considered by the Planning Board and accept a revised single-phase plan not to exceed 275,000 SF to be submitted as a substitute Master Plan for consideration by the Planning Board, which revised plan shall include an additional site of up to 15,000 SF for a municipal use and that the Planning Board shall have up to and including December 30, 2005 to approve, approve with changes and/or conditions or deny the Master Plan.”
After the addition of one cosmetic amendment, this motion passed, with one vote against it.
The election-of-remedies argument was not raised before the trial justice, and therefore it is not properly before us, and we will not address it. Richard v. Richard, 900 A.2d 1170, 1178 (R.I. 2006) (“Our well settled raise-or-waive rule prevents us from addressing arguments not raised before the trial justice.“) (quoting State v. Mohapatra, 880 A.2d 802, 810 (R.I. 2005)).