dissenting.
I respectfully dissent. I am of the opinion that the majority’s conclusions in this case are incorrect and that the Gardners were deprived of their right to procedural due process. Because the Gardners enjoyed a constitutionally protected property interest in accessing their land through this public roadway, and the statute under which a municipality is authorized to abandon a street or highway requires that specific procedural guarantees be afforded to the abutters before an abandonment decree is issued, this abandonment order ought not stand.
This Court has declared that “[a]n abandonment of a highway is, by its nature, *982very similar to an eminent domain proceeding” because the loss of “easement of access from abutting landowners under the sovereign’s power of eminent domain” is considered a taking, thus requiring notice to a statutorily defined class of persons and compensation for damages. D’Agostino v. Doorley, 118 R.I. 700, 705, 375 A.2d 948, 950-951 (1977). As with proceedings involving the condemnation of land for public purposes, this Court vigilantly has policed the statutory process that allows such a taking. Id. Although the wisdom and merits of a takings decision are left to the legislative body, the enabling statutes must be strictly followed. Significantly, in Golden Gate Corp. v. Sullivan, 112 R.I. 641, 314 A.2d 152 (1974), we upheld as constitutional a statute authorizing the condemnation of petitioner’s land for public purposes that did not provide for a public hearing before the taking. We concluded that the necessity and expediency of taking private land for public use was a legislative question for which a pre-depri-vation hearing was not constitutionally mandated. Golden Gate Corp., 112 R.I. at 644, 314 A.2d at 154. Such is not the case with respect to abandonment proceedings because the enabling statute requires actual notice to the abutters, a public hearing and an opportunity to argue against the abandonment and a contemporaneous award of damages.
It is well settled that a property owner’s right to access a public street that abuts his or her lot is a valuable property right that cannot “be taken away by closing the highway without payment of just compensation and without due process of law.” Wolfe v. City of Providence, 77 R.I. 192, 205, 74 A.2d 843, 850 (1950). Although the process that is due is dictated by the particular circumstances in a given case and the right to a pre-deprivation hearing does not exist in every situation, Barber v. Exeter West Greenwich School Committee, 418 A.2d 13 (R.I.1980), when a statute requires that “before proceeding to abandon any highway or driftway or any part thereof, [every town council] shall give notice to the owners of the lands abutting” the roadway, “to appear * * * and be heard,” then an owner’s right to procedural due process is set forth in the statute. General Laws 1956 § 24-6-2. (Emphasis added.) This is a mandatory requirement. The General Assembly, in enabling municipalities to abandon a public highway or driftway, “has recognized these [constitutional] limitations on its authority by expressly providing that when a town desires to abandon a public highway it shall first accord to abutters thereon such due process.” Wolfe, 77 R.I. at 205, 74 A.2d at 850. Pursuant to § 24-6-2, notice of the proposed abandonment is required so that abutters may appear, “if they see fit, and be heard for or against the abandonment, and as to the damage, if any, which they will sustain * * *.” (Emphasis added.) We previously have held that “[i]f abandonment [of a street] is necessary or desirable there is a statutory procedure for accomplishing it[,]” and the limitations on a municipality’s authority to deprive an abutter of a valuable property right are clearly and unambiguously set forth in the statute. Wolfe, 77 R.I. at 204-05, 74 A.2d at 850.
Significantly, and in contrast to the eminent domain statutes, “although not constitutionally required to do so, [the Legislature] has provided for prior hearings” in abandonment proceedings, and these “statutory processes must be scrupulously followed in these instances or the actions may be held to be invalid.” D’Agostino, 118 R.I. at 706, 375 A.2d at 951. (Emphasis added.) In the case before the Court, the Gardners are not challenging the constitutionality of the statute, nor are they complaining about a lack of procedural protec*983tions. Rather, the Gardners have argued, inter alia, that the procedural protections supplied by the statute were ignored by the Town of Cumberland. I agree. In O’Reilly v. Town of Glocester, 621 A.2d 697, 700 (R.I.1993), we declared that “[p]ursuant to § 24-6-2 a town must hold a hearing so that [abutting] landowners may argue against the abandonment and present evidence concerning the damage the landowners will incur if the abandonment proceedings go forward.” It is painfully apparent that no meaningful hearing occurred in this case and that the town violated both the statute and its own procedure.
Although, as the majority concludes, the finding by the town council, in accordance with § 24-6-1, that a highway “has ceased to be useful to the public” and title therefore “shall revert to its owner,” is a legislative determination that is unreviewable by this Court, the Legislature, in enacting this enabling legislation clearly set forth the procedures that must be followed to accomplish this result. Included in these procedural protections is a requirement for actual notice to an abutter and an opportunity “to appear, if they see fit, and be heard for or against the abandonment, and as to the damage, if any, which they will sustain thereby.” Section 24-6-2. Additionally, “whenever it abandons the whole or any part of a public highway or drift-way, [the town council] shall at the same time appraise and award the damages.” Section 24-6-3. (Emphasis added.) None of that happened in this case.
The hearing procedure that the majority has affirmed, was, in my opinion, a meaningless exercise. The council members who voted to abandon the street did not attend the hearing and never heard from the Gardners. Because a majority of the members of the town council were not present at the public hearing, the Gard-ners were deprived of their statutorily guaranteed opportunity to be heard. Significantly, the minutes of the town council characterize this procedure as a public hearing and reflect that the witnesses were placed under oath and gave sworn testimony. It is undisputed, however, that this proceeding, held on October 7, 1998, was concluded before the town’s biennial elections and that a new town council was elected thereafter. It was the newly elected legislative body that voted in this case, and four of its members, a majority, did not attend the public hearing. One member of the new council, who had sat on the previous council and was initially present for the hearing, absented herself because of illness. Three members were newly elected to the council and were neither present for, nor participated in, the Gard-ners’ only opportunity to be heard. Thus, the suggestion that the council complied with the statutory guarantees of notice and an opportunity to be heard is simply wrong. Although the Gardners were provided with notice, argued against the abandonment and gave evidence about their potential damages, this was an empty exercise because the majority of the members of the town council who voted to abandon the roadway did not hear from them. To reject evidence, a fortiori, a fact-finder is required to hear that evidence.
Certainly, the town council could have legitimately rejected the Gardners’ arguments against abandonment and lawfully determined that the roadway ceased to be useful to the public. That is precisely what occurred in Godena v. Gobeille, 88 R.I. 121, 143 A.2d 290 (1958), a case relied upon by the majority, in which the Jamestown town council complied with the abandonment procedures set forth in the enabling act and this Court was confronted with a challenge to the wisdom and merits of the legislative determination. We held that certiorari does not lie to review a *984purely legislative determination because judicial discretion is not employed in rendering the decision. Godena, 88 R.I. at 128, 143 A.2d at 293. That is not the issue before us today.
The fact that the Cumberland town solicitor, when confronted by both the Gard-ners and the apphcants/defendants about this obvious flaw in the legitimacy of the proceeding, asked the members of the council whether they felt comfortable voting on the abandonment petition and received an affirmative response is of no moment to the statutory guarantee of procedural due process. The relative comfort level of newly elected council members who never heard from the Gardners is irrelevant to the issue of due process. We have held previously that abandonment procedures “must be scrupulously followed.” D’Agostino, 118 R.I. at 706, 375 A.2d at 951. (Emphasis added.) Moreover, I respectfully reject as unavailing the majority’s conclusion that the provision of the Cumberland Code indicating that “four (4) members of the Town Council shall constitute a quorum for the transaction of business” somehow supplies the constitutional processes guaranteed by the statute. The same quorum that heard from the abutters did not vote on the petition. Thus, the only opportunity for the Gard-ners to appear and be heard about prospective council action that ultimately deprived them of a valuable property right was a nullity.
I further reject the conclusion of the majority that an abandonment solely is a legislative exercise. As noted, valuable and constitutionally protected property interests are at stake and a pre-abandonment hearing, although not constitutionally required, is required by statute. This Court previously has held that “the procedure prescribed by the [abandonment] statute is in part judicial and in part legislative.” Godena, 88 R.I. at 127, 143 A.2d at 293. (Emphasis added.) The requirement that the council notify the abutters, afford them an opportunity to argue against the proposal and assess damages, if necessary, is a judicial function, notwithstanding that the ultimate abandonment decision is a legislative act of prospective application. Id.
In Wolfe, 77 R.I. at 203, 74 A.2d at 849, this Court declared that “[i]n this state a municipality may permanently close or abandon a street only after formal proceedings of a semijudic[i]al nature in accordance with [law.]” That is, a proceeding that “is in part judicial and in part legislative.” Godena, 88 R.I. at 127, 143 A.2d at 293; See Frank W. Coy Real Estate Co. v. Pendleton, 45 R.I. 477, 123 A. 562 (1924) (abandonment petitions involve semijudical proceedings to be undertaken by the town council). In Wolfe, supra, we were confronted with a statute that authorized the City of Providence to enact a traffic ordinance that permanently closed a city street to vehicular traffic and severely restricted access to plaintiffs premises. We concluded that this was not a legitimate traffic regulation within a municipality’s police power but amounted to an abandonment of the roadway. We concluded that the Legislature may not authorize cities and towns to permanently prohibit vehicular traffic on a street or highway unless it is accomplished through the statutorily prescribed abandonment procedures. “An abutter’s right in the street is a property right and cannot unreasonably be interfered with * * * taken away * * * without payment of just compensation and without due process of law.” Wolfe, 77 R.I. at 205, 74 A.2d at 850. Accordingly, “when a town desires to abandon a public highway it shall first accord to abutters thereon such due process.” Id. (Emphasis added.)
*985Finally, in contravention of § 24-6-3, the town council failed to assess damages and, in violation of § 24-6-1 and its own resolution, the town council failed to provide the Gardners with personal notice of the abandonment decree. I reject the majority’s opinion that the town’s failure to comply with its own resolution “is of no legal consequence in this case” because, the majority concludes, the Gardners, having attended the meeting, “are deemed to know that this event occurred, thereby satisfying the notification purpose for requiring personal service of the order.” According to the statute, the “event” is not concluded by the vote of the council; the Gardners were entitled to know the particulars, including a decision on damages, none of which occurred during this unorthodox proceeding. I am not prepared to overlook the statutory mandate of notice that was included in the council’s own order. According to the record provided to this Court, the resolution of abandonment filed in the land evidence records of the town, although allegedly voted upon on December 2, 1998, is dated and attested to by the town clerk as having been enacted on June 3, 1998, six months earlier. How a resolution of the town council can be signed and attested to by the clerk six months before the actual vote of the council is simply inexplicable. Moreover, according to § 24-6-4, anyone aggrieved by the order or decree awarding damages may, “within one year after the making of the award[,]” petition the superior court for a jury determination of damages against the town. At what point does the one-year time limitation begin to run? As noted in O’Reilly, 621 A.2d at 700, the purpose of notice is to inform the public that the town has terminated its obligation to maintain the right-of-way and that title to the land on which the right-of-way sits has reverted to the owners of the property adjacent to the right-of-way. Further, the abutters are entitled “to an assessment of damages once a town officially abandons its obligation to maintain a right-of-way.” Id. (Emphasis added.) In light of the town council’s statutory obligation to personally serve an abutting landowner with notice of the abandonment, the council’s own resolution ordering notice and the fact that the one-year limitations period to claim a jury trial begins to run as of the date of the decree, I deem these procedural deficiencies to be equally fatal to the validity of the abandonment.
In conclusion, at best, this case represents sloppy and uninformed practices by a newly elected town council. Consequently, I dissent. For the reasons set forth herein, I would grant the petition for certiorari and quash the abandonment decree.