concurring. My concurrence is directed to the issue of notice. In DeLucia v. Town of Jamestown, 107 R. I. 179, 265 A.2d 636 (1970), we ruled that where notice has been given of a public hearing on a proposed amendment to a zoning ordinance and the ordinance as finally adopted differs substantially from the proposal described in the notice, the insufficiency of the notice could be raised by an individual who was present at the hearing and aware of the counterproposals which caused the city or town council to take the action that it did. I would not extend the rule of DeLucia to all of the proceedings governed by the Administrative Procedures Act. An examination of the record compiled during the East Greenwich hearing gives compelling evidence as to why some flexibility as to notice is desirable.
The notice which was given by the Public Utilities Commission satisfied the mandate of Mello v. Board of Review, 94 R. I. 43, 177 A.2d 533 (1962), because it revealed the “precise character of the relief sought” and “the specific properties for which such relief is sought.” The commission’s notice informed the public that it would hold a hearing on the railroad’s desire to barricade the grade crossings at Long and Queen Streets and install automatic gates at the London Street crossing.
When the hearing began, the president of the East Greenwich Town Council informed the commission of the council’s opposition to the closing of Long and Queen Streets. The commission was in receipt of a letter from the town planning board giving a qualified approval to the railroad’s proposal. An attorney representing residents in the area voiced opposition to the closing of any of the crossings and expressed concern for the financial future of the crossing guards whose jobs were to be eliminated. He presented *318the commission with petitions containing about 100 signatures. Several of the signatories resided on London Street. The chief of the fire district then took over and he stressed the value of Queen Street to the firefighters. “Queen Street,” he said, “should not be blocked off,” because a “major hydrant” is found on that thoroughfare and the street’s width permits easier maneuvering of the district’s ■fire trucks. Counsel for the fire district also informed the commission that he represented a waterfront, restaurant located on Queen Street. The restaurant opposed the closing of Queen Street because it would be adverse to its business and a threat to the safety of its clientele. A communication from the East Greenwich Democratic Town Committee, signed by its secretary,1 was made part of the record. It expressed the committee’s opposition to Penn Central’s proposal.
After the fire chief had made his views known, a representative of the railroad informed the commission that it made no difference to Penn Central which two of the three crossings were closed and which one would remain open. I have no doubt that when the hearing concluded, the representatives of the town and the fire district were well aware that the chief’s forceful presentation would play an important role in the commission’s ultimate determination.
The commission was faced with a difficult choice. It had been informed that the automatic gates gave greater protection than those that are manually operated. Trains pass through the town of East Greenwich at a speed of 75 miles per hour. Once the chief had spoken, the commission became cognizant of its duty to balance the risks of collision against the risks of conflagration. In the light of the evidence presented to it, the commission exercised the wisdom of Solomon.
*319The 1969 legislation (39-8-1.4) which authorized the abandonment of grade crossings, contains no provisions for a hearing. It is my belief that our holding in DeLucia is premised upon the express provisions of G. L. 1956 (1970 Reenactment) §45-24-4 which requires any adoption, repeal, or amendment of a zoning ordinance to be preceded by a public hearing with notice thereof being given by the placing of a notice in a newspaper having general circulation within the municipality at least once a week for three successive weeks prior to the hearing date. We have said that the giving of such notice is prerequisite to a council’s exercise of its legislatve power. Rhode Island Home Builders, Inc. v. Budlong Rose Co., 77 R. I. 147, 74 A.2d 237 (1950).
The significance of §42-35-9(4) of the Administrative Procedures Act cannot go unnoticed. It allows an agency or a person, who is unable at the time of the giving of the notice to state in detail the matters to be considered at the hearing, to limit its initial notice to a statement of the issues involved at the hearing. This provision shows a legislative intent not to impose upon the numerous and various state agencies that come within the umbrella of the act the rigidity which limits a city or town council in its consideration of a zoning ordinance or amendment. Notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken upon the subject matter referred to in the notice. Neuger v. Zoning Board, 145 Conn. 625, 145 A.2d 738 (1958); Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971). The appellants had no right to assume that the commission which is entrusted with the plenary power of eliminating grade crossings was bound to accept in toto Penn Central’s application. See Hewitt v. County Commissioners of Baltimore County, 220 Md. 48, 151 A.2d 144 (1959).
Inferentially the absence of an appeal by the residents of *320the área is evidence that they were not surprised by the commission’s ultimate decision.
Consequently, I believe that since the commission had jurisdiction of the subject matter of the hearing, neither the town nor the fire district can be heard at this late date on their claim relative to the insufficiency of the notice. Both were active participants at the hearing and were well aware of what was going on. They can be placed in the same category as the individual who goes to a zoning board, complains about a lack of notice but stays on and offers his views as to what or what should not be done. Such conduct, we have said, constitutes a waiver of the notice requirement. Champagne v. Zoning Board, 99 R. I. 283, 207 A.2d 50 (1965); Perrier v. Board of Appeals, 86 R. I. 138, 134 A.2d 141 (1957).
For the reasons cited herein, I have no doubt that the board acted within its jurisdiction.
Mr. Justice Joslin dissenting in part. Notice of the hearing in this matter was required by the Administrative Procedures Act, G. L. 1956 (1969 Reenactment) §42-35-9.1, 2 *321The notice, as given, stated that the issue involved was the application of the Penn Central Company (Penn Central) for permission to close and barricade public crossings at Long and Queen Streets and to replace the existing manual protection at the London Street crossing with flashing lights and gates.
While I do not question the commission’s authority to determine that a grade crossing of a railroad and a street shall be barricaded and closed, I do question its jurisdiction to make such a determination with respect to the London ■Street crossing on a notice which in no way alluded to that possibility. The variance between matters which the notice stated would be considered at the hearing and the relief subsequently authorized following the hearing was in my judgment so substantial as to indicate that the notice did not contemplate the action ultimately taken. The action was, therefore, beyond the commission’s jurisdiction. DeLucia v. Town of Jamestown, 107 R. I. 179, 186-87, 265 A.2d 636, 639-40 (1970); In re Village Board, 77 N.D. 194, 212-14, 42 N.W.2d 321, 332-33 (1950).
The plurality view the problem in a different light. They say, that the notice as given was “reasonably calculated to inform interested persons that Penn Central was applying for some action and relief relating to the crossing in question.” (emphasis added) But the question in this case is not whether the commission gave notice of “some action” relating to London Street. That it certainly did. Rather, the question is whether notice that “some action” would be taken relating to the crossings satisfied the statutory provision mandating a “plain statement” of the matters to be considered. Supra, n. 1.
*322Whether the notice satisfies that mandate is a “pure question of law” which, in the final analysis, depends Upon whether an interested party reading it could reasonably have anticipated that the outcome of the hearing would entail the closing and barricading, of London Street rather than the substitution at that crossing of one type of safety equipment for another. DeLucia v. Town of Jamestown, supra at 186, 265 A.2d at 639. The answer, it seems to me, must be in the negative.
A comparable situation, albeit involving notice in a zoning proceeding rather than in one involving a railroad crossing, is found in Mello v. Board of Review, 94 R. I. 43, 177 A.2d 533 (1962). There, although the applicant sought permission to convert a building located on two contiguous lots, the notice given to the public stated that the building-proposed for conversion was located on only one of those lots. In those circumstances we held that the enabling legislation’s requirement to “give public notice” was jurisdictional; that whatever jurisdiction was acquired could not in any event exceed the precise character of the relief sought and the specific property for which that relief was sought; and that the variance between what had been applied for and what was specified in the notice as the subject matter of the application was so substantial that the zoning board did not acquire jurisdiction to act on the application.
In this case — where the discrepancy between the relief applied for and that granted is certainly no less than in Mello — the same principle must also apply, and the commission in order to remain within the limitations imposed by the notice should have taken no action which was not reasonably compatible with what the notice stated was the nature and character of the relief sought by the application.
The plurality refer to and quote from Schenley Affiliated *323Brands Corp. v. Kirby, 21 Cal. App.3d 177, 98 Cal. Rptr. 609 (1971).- That case, however, is clearly inapposite. It construes a statute regulating the type of notice required to be given by an agency prior to the adoption, amendment or repeal of any rules or regulations. Here, we construe a provision ('§42-35-9, supra, n. 1) prescribing the notice to be given in a contested case involving a determination of the legal rights, duties or privileges of parties having conflicting interests.
The two statutory provisions are entirely different, as are the purposes which each is designed to serve. Their differing terms and dissimilar contexts hardly make the construction which one has received precedential for that which the other should receive.
Finally, the plurality say that in any event the petitioners have not shown that they were prejudiced, and that the absence of such a showing is defeating. That position misconceives the nature of the jurisdictional problem presented in this case. It is not that the service of the notice was improper or that the notice itself suffered from a technical defect. In either of those situations a general appearance might constitute a waiver thereby precluding the litigant from claiming prejudice. The problem here, however, is not with the form of the notice, or with its service, but with its sufficiency at the outset to confer jurisdiction on the commission to hear and determine Penn Central’s application. That, in the first instance, depended upon strict compliance with the statutory notice provisions. Mello v. Board of Review, supra at 49, 177 A.2d at 535-36. There was therefore, nothing to be waived. DeLucia v. Town of Jamestown, supra at 186, 265 A.2d at 639.
What I say here is also responsive to my brother Kelleher’s view that the commission’s jurisdiction to act, even if limited by the notice, was somehow enlarged by what was said at the hearing by the chief of the fire district and *324by the fire district’s attorney. The plain fact is, however, that the commission’s jurisdiction to act in this particular proceeding, irrespective of the power conferred on it by statute to hear and determine all manner of questions relating to railroad grade crossings, could in no event extend beyond the scope of the notice given, and nothing that was said at the hearing could empower it to act on any matter not properly noticed.
George A. Bristol, for East Greenwich Fire District, East Greenwich. Peter D. Nolan, Town Solicitor of East Greenwich, Leo J. Dailey, for Town of East Greenwich, for petitioners. Roberts & Willey Incorporated, Dennis J. Roberts, II, for Penn Central Company, for respondent.In sum, I conclude that the commission was limited by the notice to a consideration of questions relating to the kinds of safety equipment to be installed at the London Street crossing, and was not free to go beyond that public notice and authorize the closing and barricading of London Street. Rhode Island Home Builders, Inc. v. Budlong Rose Co., 77 R. I. 147, 152, 74 A.2d 237, 239 (1950); Elof Hansson, Inc. v. United States, 178 F. Supp. 922, 930 (Cust. Ct. 1959).
I would grant the petition for certiorari in part and quash so much of the decision as authorizes the barricading and closing of London Street.
Motion to reargue denied.
Mr. Chief Justice Roberts did not participate. Mr. Justice Powers participated in the decision but retired prior to its announcement. Mr. Justice Doris did not participate.Apparently counsel for the fire district wore several hats to the hearing. He is also the committee’s secretary.
That provision reads as follows:
“42-35-9. Contested eases • — ■ Notice — Hearing — Records. — (a) In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.
(b) The notice shall include:
(1) a statement of the time, place, and nature of the hearing;
* * *
(4) a short and plain statement of the matters inserted. If the agency or other party is unable to state the matters in detail at thi£ time the notice is served, the initial notice may be limited to a statement of the issues involved and detailed statement shall be furnished.”
While it is true, as my brother Kelleher says, that there is no specific provision for a hearing in the 1969 legislation (P.L. 1969, ch. 240, sec. 10) authorizing the abandonment of grade crossings, I am sure he is not thereby suggesting that the Legislature intended that the hearing and notice provisions of the Administrative Procedures Act would not apply *321in a proceeding like this where the commission is asked to determine the rights, duties and privileges of parties. For a general discussion of the requirement for a hearing see 1 Davis, Administrative Law Treatise ch. 7 at 407-512 (1958).