Kingsley v. Miller

Annotate this Case

388 A.2d 357 (1978)

Gilbert H. KINGSLEY et ux. v. John S. MILLER et al.

No. 77-79-Appeal.

Supreme Court of Rhode Island.

June 30, 1978.

*358 Melvin Chernick, Providence, for plaintiffs.

Taft & McSally, Bernard F. McSally, Providence, for defendants.


KELLEHER, Justice.

This is an appeal from a judgment of the Superior Court denying the plaintiffs' prayer for declaratory relief. Before discussing the merits of the plaintiffs' appeal, we must first review the unusual procedural posture of the case and our jurisdiction to consider the appeal.

In April of 1975, plaintiffs filed an application with defendant, the Building Inspector of the Town of North Kingstown, for a permit to conduct earth-removal operations on a certain parcel of land they own in the town. The application was filed pursuant to article IV, chapter 15, of the North Kingstown Revised Ordinances (1974), an ordinance regulating earth extraction and removal.[1] The defendant building inspector refused to issue the requested permit because the parcel in question is zoned "Village Residential." According to the town's zoning ordinance, earth removal in such a district is neither a permitted use nor one permitted by way of special exception[2] The plaintiffs filed an appeal from this decision with the zoning board of review.[3]*359 No action was ever taken by the zoning board, however, because the parties agreed to forego a hearing and decision by the board and expedite matters by seeking judicial review through the pertinent provisions of the Declaratory Judgment Act. The parties, in taking this route, assumed that the zoning board would have no discretion to act because the property was located in a "Village Residential" district[4]

In the Superior Court plaintiffs sought a declaration that any provisions of the North Kingstown Zoning Ordinance proscribing earth removal were null and void because the earth-removal ordinance superseded all provisions of the previously enacted zoning ordinance relating to earth removal, and consequently, the town was without "statutory authority" or "jurisdiction" to deny them an earth-removal permit.

While some members of this court continue to have serious reservations about instituting a declaratory judgment action after the party has begun to seek relief at the administrative level,[5] such a procedure is permissible in Rhode Island, at least insofar as the complaint seeks a declaration that the challenged ordinance or rule is facially unconstitutional or in excess of statutory powers, or that the agency or board had no jurisdiction. Taylor v. Marshall, R.I., 376 A.2d 712 (1977). Accordingly, plaintiffs' appeal is properly before us, notwithstanding their failure to exhaust the administrative remedies set forth in P.L.1973, ch. 130, § 8.

The plaintiffs' sole contention is that the earth-removal enabling act and subsequent ordinance pre-empted the North Kingstown Zoning Ordinance. They interpret the earth-removal ordinance as mandating the issuance of earth-removal permits in residential areas once applicants comply with the requirements of the ordinance. In taking this position, plaintiffs give little credence to P.L.1973, ch. 130, § 15, which provides:

"This act shall not be deemed to limit by implication or otherwise any ordinance enacted pursuant to the authority of chapter 24 of title 45 of the general laws of 1956 as amended."

Chapter 24 of title 45 is the general zoning enabling act. The fair import of this provision is that the earth-removal act in no way limits or supersedes any zoning ordinance that is enacted by virtue of ch. 24 of title 45.

The plaintiffs place great stress on the fact that North Kingstown's zoning ordinance was not enacted pursuant to the authority of the general enabling act. Rather, zoning came to North Kingstown by way of a special enabling act,[6] to wit, P.L. 1948, ch. 2079. See Baker v. Zoning Board of Review, 82 R.I. 432, 111 A.2d 353 (1955).

During the January 1973 legislative session, six other communities were permitted *360 to enact earth-removal ordinances.[7] The enabling legislation for Portsmouth was introduced first, on January 12, 1973. The other six, including that for North Kingstown, were introduced at subsequent times during the 1973 session. All of them are quite similar. All of the enabling acts have an identical section 15, except for the one drafted for Exeter, which did not enact a zoning ordinance until 4 years later, in May 1977. The fact that the earth-removal acts are practically carbon copies of each other strongly suggests that the earth-removal pattern was set by Portsmouth and followed by the other six communities. See Whitman v. Mott, 114 R.I. 530, 336 A.2d 836 (1975). What evidently happened is that the drafter, in preparing the North Kingstown enabling legislation, used the Portsmouth legislation as a guide and simply failed to substitute in section 15 reference to North Kingstown's special zoning enabling act (P.L.1948, ch. 2079) for the general zoning enabling act (G.L.1956 (1970 Reenactment) § 45-24-1 et seq.).

While the judicial branch has no authority to amend or extend an act of the Legislature, a literal reading of a statute may be ignored if it does not convey a sensible meaning or where it defeats an evident legislative purpose. Providence Journal Co. v. Mason, 116 R.I. 614, 359 A.2d 682 (1976); Pucci v. Algiere, 106 R.I. 411, 261 A.2d 1 (1970). The paramount task in construing a statute is to ascertain the intent behind its enactment and to effectuate that intendment whenever it is lawful and within the competence of the Legislature. Narragansett Racing Association, Inc. v. Norberg, 112 R.I. 791, 316 A.2d 334 (1974). This court will not ascribe to the General Assembly an intent to enact legislation which is devoid of any purpose, inefficacious, on nugatory. Town of Scituate v. O'Rourke, 103 R.I. 499, 239 A.2d 176 (1968); Ewing v. Frank, 103 R.I. 96, 234 A.2d 840 (1967).

Here, the legislative purpose, though imperfectly expressed, is clear. Even if earth-removal enabling legislation might permit a municipality to adopt an ordinance which might be considered as "quasi-zoning"[8] legislation, the General Assembly has clearly indicated that the locale of earth-removal operations is to be determined by the provisions of the town's zoning ordinance. If the zoning ordinance dos not permit an earth-removal operation to take place within certain districts, any ordinance enacted under the 1973 enabling legislation will afford no additional legislative basis for such an undertaking in those districts. The 1973 statute simply allows the town to regulate all facets of an earth-removal operation. It in no way supersedes the provisions of the zoning ordinance which specify the uses to which land in the various zoning districts can be devoted. Accordingly, the building inspector was acting within his jurisdiction when he denied the plaintiffs' request for an earth-removal permit.

The plaintiffs' appeal is denied and dismissed, and the judgment appealed from is affirmed.


[1] The town's authority to enact the earch-removal ordinance may be found in P.L.1873, ch 130.

[2] Earth removal is a permitted use in a "Heavy Business" district and a use allowed by special exception in a "Rural Residential" district. North Kingstown Revised Ordinances, secs. 17-4-5 and 17-2-1.

[3] Both the enabling act and the earth-removal ordinance provide that appeals from decisions of the building inspector to the zoning board of review shall be taken "in the same manner" as other appeals to the zoning board. P.L.1973, ch. 130, § 8; North Kingstown Revised Ordinances § 15-4-6 (1974). Neither mention the procedure for judicial review but presumably both the Legislature and the North Kingstown Town Council intended such review to be conducted "in the same manner" as other appeals from decisions of the zoning boardthat is, by writ of certiorari to this court. P.L.1948, ch. 2079, § 9. In any case, this court has issued a writ of certiorari in the exercise of its final revisory jurisdiction upon all questions of law when no other remedy has been specifically provided by statute for the review of alleged errors of law in an inferior tribunal. City of Providence v. Local 799, International Ass'n of Firefighters, 111 R.I. 586, 305 A.2d 93 (1973).

[4] This assumption may well be inconsistent with the North Kingstown special zoning enabling act. P.L.1948, ch. 2079, § 8. See Baker v. Zoning Board of Review, 82 R.I. 432, 435, 111 A.2d 353, 355 (1955).

[5] See Taylor v. Marshall, R.I., 376 A.2d 712, 717 (1977) (Kelleher, J., dissenting).

[6] Six other Rhode Island communities have special zoning enabling acts. They are New Shoreham (P.L.1953, ch. 3125); Johnston (P.L. 1935, ch. 2233); Narragansett (P.L.1928, ch. 1277); South Kingstown (P.L.1973, ch. 101); West Warwick (P.L.1933, ch. 2065); Westerly (P.L.1922, ch. 2299). All but New Shoreham's have been amended in one form or another since the date they were originally enacted. See P.L.1977, Tables 2, 3.

[7] P.L.1973, ch. 103 (Lincoln), ch. 127 (Portsmouth), ch. 161 (East Greenwich), ch. 167 (Tiverton), ch. 178 (Little Compton), ch. 190 (Exeter). None of these communities have a special zoning enabling act, but all have enacted zoning ordinances pursuant to the general enabling act.

[8] In Town of Scituate v. O'Rourke, 103 R.I. 499, 239 A.2d 176 (1968), we differentiated between licensing legislation which governs only the activities conducted on land and those that may pertain to the use to which a parcel of land may be employed. We ruled in the O'Rourke case that Scituate's junkyard licensing ordinance was a quasi-zoning ordinance because it regulated both the use of one's property and the activities conducted thereon.