Posted by: Patricia Salkin | August 4, 2018

RI Supreme Court Holds Res Judicata Did Not Operate to Bar Property Owner’s Motion to Vacate Order Compelling Removal of Garage

This post was authored by Matthew Loeser, Esq.

In 2007, McLaughlin applied for, and received, a permit from the municipal Building Inspector to build a 40–by–60 foot garage on his property. However, as he admitted to the Tiverton Zoning Board of Review and in a letter seeking a zoning variance, that permit was based on an erroneous site plan that McLaughlin had provided to the town. That plan, which McLaughlin himself prepared, inaccurately described the boundaries of his property. In this case, McLaughlin appealed from an order of the Superior Court denying his motion to vacate an earlier court order that compelled him to remove the garage from his property.

At the outset, the court noted that when the trial justice denied McLaughlin’s motion to vacate in 2016, he did so, in part, because of his concern for the finality of the hearing justice’s April 7, 2014 order. As such, the court determined that the decision was premised upon the doctrine of law of the case, not res judicata.

On appeal, McLaughlin argued that the April 7, 2014 order was void because the Superior Court lacked subject matter jurisdiction to enter the order and because the court’s action violated his due process rights. The court rejected this contention, and found that the Superior Court was vested with the subject matter jurisdiction to order McLaughlin to remove the garage pursuant to statute, and McLaughlin admitted he received notice of the April 7, 2014 hearing.

McLaughlin next contended that the unique circumstances of this case presented a manifest injustice “justifying relief from the operation of the” order. The court found that the removal action was not properly brought under § 45–24–62. Specifically, the zoning board’s “Motion for Order to Comply” was not a “due proceeding” as required by the plain language of § 45–24–62, and a motion to comply, filed by the zoning board, rather than the town, at the conclusion of a zoning appeal, did not suffice. Here, the record reflated that the solicitor did not file a separate complaint on behalf of the town setting forth McLaughlin’s alleged noncompliance with the Tiverton Zoning Ordinance. Thus, at no point did McLaughlin’s zoning appeal transform into a “due proceeding in the name of the Town of Tiverton, instituted by its town solicitor.” Therefore, despite the fact that McLaughlin received notice and an opportunity to be heard, the town’s failure to comply with § 45–24–62 in obtaining permanent injunctive relief on April 7, 2014, was fatal. Accordingly, the court held that McLaughlin’s motion to vacate should have been granted.

McLaughlin v Zoning Board of Review of Town of Tiverton, 186 A. 3d 597 (RI 6/20/2018)


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: