New England Development, LLC v. Berg

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 *374would not address the merits of this case and would affirm the trial justice’s finding that the applicant failed to exhaust its administrative remedies.

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 “[although 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 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 G.L. 1956 § 45 — 23—40(f) provides that the “[failure of the planning board to act [within 120 days] constitutes approval of the master plan” and that “the resulting approval will be issued on request of the applicant,” I am not convinced that this provision gives rise to the extraordinary remedy of mandamus; nor does it excuse the requirement that an applicant exhaust its administrative remedies. Section 45-23-67 provides for a right of appeal to the Tiverton Board of Appeals, a remedy that NED has chosen to pursue. Accordingly, I would decide this case on exhaustion grounds.

I also respectfully dissent from the majority’s conclusion “that § 45-23-40(e) calls for a written decision approving or denying the master plan application within 120 days” of the certification that the application is complete.

Statutory Construction

To reach the conclusion that § 45-23-40(e) requires a written decision within 120 days, three separate sections of chapter 23 of title 45 must be examined.13 I am of the opinion that this statutory scheme is unclear and ambiguous, necessitating an application of the usual rules of statutory construction.

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 them 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 *375Rights and Equality v. Gannon, 819 A.2d 651, 659 (R.I.2003)). This Court will not construe a statute that contains ambiguous language to reach a result “that is contradictory to or inconsistent with the evident purposes of the [enactment].” Carrillo v. Rohrer, 448 A.2d 1282, 1284 (R.I.1982).

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 45-23-26(b). The General Assembly also recognized that a municipality’s responsibility to regulate land development has “increased in complexity, and expanded to include additional areas of concern” § 45 — 23—29(b)(3); and that not all proposals “are sufficiently reviewed prior to recording or construction, resulting in unwarranted” impacts upon the municipality and private individuals. Section 45 — 23—29(b)(5). A major land development project is a complex proposal that consists of a pre-application meeting, § 45-23-35; followed by “three stages of review, master plan, preliminary plan and final plan * * *. Also required is a public informational meeting and a public meeting” (upon seven days public notice). Section 45-23-39(b). In addition, input must be solicited from numerous agencies, ranging from the police and fire departments to adjacent communities and environmental stakeholders. See § 45 — 23—40(a)(3).

Notably, from the time the application is certified as complete, § 45-23-40(e) affords the planning board 120 days to “approve * * * approve with changes and/or conditions, or deny the application.” The requirement that this decision must be embodied in a separate writing, (a point about which I am not convinced),14 means that the planning board, consistent with its operating procedures and state law regulating open meetings,15 has significantly less than 120 days to review and pass upon this major development project. I do not believe that the General Assembly intended to provide for less than 120 days for the planning board to decide these applications.

Because § 45 — 23—40(f) provides that the planning board’s failure to act within 120 days amounts to a default, I am of the opinion that the board must, within 120 days, vote the application up or down and that a written decision, consistent with the planning board’s operating procedures, must be provided within a reasonable time. Any other reading of these subsections, in my opinion, results in a markedly abbreviated period of review for these complex development proposals.

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 § 45-23-40(e). This language convinces me that the decisional time constraints are mandatory, but that they do not require a written decision. Consequently, I cannot agree with the majority’s conclusions.

. See G.L. 1956 § 45-23-40(e), (f), and § 45-23-63.

. I am of the opinion that the minutes of the planning board that are "written and kept permanently available for public review" satisfies the writing requirement set forth in § 45-23-63(a).

. General Laws 1956 chapter 46 of title 42, "Open Meetings” requires that any discussions of the business of the Tiverton Planning Board occur at a regular or special meeting of the planning board, for which proper notice has been given and that is open to the public.