Summary
In Dresser the court relied on an earlier decision, Coderre v. Zoning Board of Review of Pawtucket, 103 R.I. 575, 578, 239 A.2d 729, 730-31 (1968), in which this court held that "there having been a change in the composition of the board intervening between its decision and our remand, it was the obligation of the board as newly constituted to consider the case de novo."
Summary of this case from Lombardi v. KooloianOpinion
April 11, 1977.
PRESENT: Bevilacqua, C.J., Paolino, Joslin, Kelleher and Doris, JJ.
1. ZONING. Hearing on Remand to Zoning Board. In addition to holding hearing de novo on remand of matter for further hearing on question of termination or discontinuance of nonconforming use, all five members of presently constituted town zoning board of review had to participate in rendering decision.
2. ZONING. Decisions of Zoning Board Invalid. Decision of town zoning board of review, which failed to hold hearing de novo on remand of matter for further hearing on question of termination or discontinuance of nonconforming use, and which failed to have all five members of presently constituted board participate in deciding matter, was invalid.
On petition for certiorari to review reversal of decision of town zoning board of review, the Supreme Court, 113 R.I. 458, 322 A.2d 294, remanded case for further proceedings to the Superior Court, which in turn remanded matter to zoning board for further hearing. The Superior Court, after transcript and exhibits of original hearing were reviewed and findings of fact and conclusions therefrom filed, reversed decision of zoning board, and petition for certiorari was brought. The Supreme Court held that decision of zoning board, which failed to hold hearing de novo on remand, and which failed to have all five members of presently constituted board participate in deciding matter, was invalid.
Petition granted, decision of Superior Court quashed, and records ordered returned to the Superior Court.
Lavine Sutherland, Robert Hope Larder, Paul P. Baillargeon, for petitioners.
Fontaine Croll, Paul A. Fontaine, for respondents.
This petition for certiorari was brought to review the Superior Court judgment reversing the decision of the Zoning Board of Review of the Town of North Smithfield. The case was originally before us in A.T. G., Inc. v. Zoning Bd. of Review, 113 R.I. 458, 322 A.2d 294 (1974), in which we remanded the case to the Superior Court for further proceedings. The Superior Court, in turn, remanded the matter to the zoning board for a further hearing on the question of the termination or discontinuance of the nonconforming use. No further hearing was held. Instead, the transcript and exhibits of the original hearing were reviewed and findings of fact and conclusions therefrom were filed in Superior Court.
During oral argument before this court, it was disclosed that only four individuals participated in rendering the decision on remand. Moreover, between the time of the zoning board's original decision and the remand, the composition of the board had changed. Several of the individuals participating in the decision on remand had been members of the original board, but were not members of the presently constituted zoning board.
[1, 22] In Coderre v. Zoning Bd. of Review, 103 R.I. 575, 239 A.2d 729 (1968), we held:
"[W]here there has been a change in the composition of a board of review made subsequent to the rendering of a decision which this court remands for clarification, completion and/or supplementation of the record on which the decision was based, a hearing de novo on the application for relief is a jurisdictional condition precedent to a valid decision." Id. at 577-78, 239 A.2d at 730.
In addition, all five members of the presently constituted zoning board must participate in rendering a decision. Kent v. Zoning Bd. of Review, 102 R.I. 258, 229 A.2d 769 (1967). Since the zoning board failed to hold a hearing de novo, and since the board failed to have all five members of the presently constituted board participate in deciding this matter, its decision was invalid.
The petition for certiorari is granted, the decision of the Superior Court is quashed without prejudice to the applicants to have their applications considered de novo, and the records certified are ordered returned to the Superior Court with our decision endorsed thereon.