Dennis M. Dallman et al. v. Michael B. Isaacs et al.
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Supreme Court
No. 2005-276-Appeal.
(KC 04-1056)
Dennis M. Dallman et al.
:
v.
:
Michael B. Isaacs et al.
:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
OPINION
Chief Justice Williams, for the Court. The plaintiffs, Dennis M. Dallman et al.1
(plaintiffs), appeal the Superior Court’s grant of a motion for summary judgment in favor of the
defendants, Michael B. Isaacs, John M. McGurk, Henry V. Boezi, Mathias C. Wilkinson and
Kim A. Petti, in their capacities as members of the Town Council of the Town of East
Greenwich (council),2 as well as Hilda Hamilton Trust, Richard Hamilton Trust, James Malm,
Paula Malm, and P.J.C. Realty Company, Inc.3 (PJC Realty) (collectively defendants). The
motion justice concluded that the plaintiffs, who were displeased with the council’s amendment
1
This litigation began with two contingents of East Greenwich residents filing separate
complaints on the same day in the Superior Court: Albert Shackleton et al. and Dennis M.
Dallman et al., assigned the case numbers KC 04-1055 and KC 04-1056, respectively. By
motion of P.J.C. Realty Co., Inc. (PJC Realty), these two actions were consolidated. By
agreement of the parties, Albert Shackleton et al. v. Arthur C. Barton et al., No. KC 04-1055,
was dismissed with prejudice. Therefore, only the appeal of Dennis M. Dallman et al. (KC 041056) is before this Court.
2
This was the composition of the Town Council of the Town of East Greenwich (council) on the
date of oral argument before this Court, November 8, 2006. As a result of the November 7, 2006
general election, Mark Schwager replaced Mathias C. Wilkinson when the new council took the
oath of office on December 11, 2006.
3
PJC Realty was not named as a defendant in plaintiffs’ complaint. Instead, on December 31,
2004, PJC Realty filed a motion to join as a defendant pursuant to Rule 19 of the Superior Court
Rules of Civil Procedure, or, in the alternative, to intervene pursuant to Rule 24 of the Superior
Court Rules of Civil Procedure. The Superior Court granted this motion on January 14, 2005.
1
of a zoning ordinance, had filed their complaint in the Superior Court after the thirty-day appeal
period prescribed by G.L. 1956 § 45-24-71(a) had expired. For the reasons set forth herein, we
affirm the ruling of the Superior Court.
I
Facts and Travel
Hilda Hamilton Trust, Richard Hamilton Trust, James Malm and Paula Malm (owners)
collectively owned certain real property in East Greenwich.4 To ensure they could develop the
property as planned, the owners filed a petition requesting an amendment to the East Greenwich
Zoning Ordinance. Specifically, the petition asked the council to rezone the property from
Manufacturing/Light Industry/Office to a zone entitled “Rocky Hill Fairgrounds,” which,
according
to
the
petition,
would
be
a
“[d]evelopment
of
[an]
Office/Light
Industry/Manufacturing Park and [multiple single-family and multi-family homes].”
The council commenced its consideration of the owners’ petition, conducting a first
reading of the petition at its July 26, 2004 meeting. In accordance with the council’s instruction
at that meeting, notice of the petition, along with an announcement that it would be considered at
a September 13, 2004 public hearing, was published in a local newspaper. In addition to an
extensive summary of the petition’s details, the published notice indicated that, if an ordinance
were enacted in accordance with the petition, it would “allow the following uses[:] Multi-family
dwelling, multi-single family [sic] dwelling, Offices, Hotels, Restaurants, private Education
Center, Day Care Center, Health/Fitness Center, Light Industry, Office Park, Research and
Development Facilities, Light Industry Park.”
The newspaper notice explained that “[a]
complete copy of the proposed Ordinance, the Town of East Greenwich Zoning Ordinance and
4
The East Greenwich property is described as assessor’s plat No. 12A, lot Nos. 119, 76, and a
portion of 75, located at 1408 and 1492 Division Road.
2
the Tax Assessor’s Maps may be examined and copied at cost in the Office of the Town Clerk,”
giving the location and hours of operation for that office. The newspaper notice added:
“The proposed Ordinances may be altered or amended prior to
adoption without further advertising, as a result of the views
expressed at the public hearing. Any alteration or amendment will
be presented for comment in the course of the hearing.”
After the September 13 public hearing, the proposed amendment to the East Greenwich
Zoning Ordinance was continued for consideration at three subsequent council meetings before
finally being scheduled for a third reading and vote on October 26, 2004.5 Before this final
meeting, a list of nineteen conditions negotiated by the developer, planning director and town
manager were submitted to the council. According to the minutes of the October 26 council
meeting, these conditions “chang[ed] and increase[ed] some of the requirements” of the
proposal. On October 26, the council was to select one of four options with regard to the
proposed ordinance amendment and the negotiated conditions:
“(1) All the conditions together with the Planning Board’s
recommendation of October 20th, that includes language to be
added to the zoning ordinance that the Planning Board do the
phasing and also maintain the community character and existing
quality of life;
“(2) Same recommendations as Option 1 together with the same
language from the Planning Board with the exclusion of the
language community character and existing quality of life;
“(3) Same recommendations together with what was presented by
the developer and the letter that was delivered to the members of
Council yesterday, noting certain phasing of items regarding
Brook’s [sic], the Restaurant, the development and included an
office building which would be phased per the Council and then
the remainder of the phasing would fall to the Planning Board;
5
According to the affidavit of then Director of Planning Lee R. Whitaker, the ordinance
amendment in question was discussed first at the advertised September 13, 2004 meeting and
then on September 27, October 12, and October 25, before it finally was passed at the October
26, 2004 meeting, for a total of five meetings.
3
“(4) Same recommendation of the developer minus the addition of
the office building.”
After a third reading of the petition, a discussion on the proposed conditions, and an opportunity
for public comment, the council voted to approve the petition as amended during the hearing.
The approved amendment included the original nineteen negotiated conditions, plus an
additional five conditions proposed and approved during the hearing, for a total of twenty-four
conditions. Thereafter, a written copy of the East Greenwich Zoning Ordinance, as amended,
labeled Ordinance No. 750, was posted in the town clerk’s office on November 26, 2004.
On December 14, 2004, plaintiffs filed a complaint with the Superior Court pursuant to §
45-24-71, arguing that the amended ordinance did not conform to East Greenwich’s
Comprehensive Community Plan and Future Land Use Map because it “alter[ed] those uses
allowable and envisioned by the Comprehensive Community Plan and Future Land Use Map,
and [greatly increased] the density of allowable development on the premises.” PJC Realty filed
a motion for summary judgment on February 15, 2005, and a hearing date was set for Monday,
March 28; the council added its own motion for summary judgment on March 15, but relied
upon PJC Realty’s memorandum to support its own motion.
Each motion contended that
plaintiffs’ appeal was untimely, having been filed some nineteen days after the expiration of the
thirty-day appeal period prescribed by § 45-24-71. The plaintiffs eventually filed an objection to
defendants’ motions on Friday, March 25, accompanied by the affidavit of Clayton Shackleton.
The motion justice, however, did not receive these papers before the hearing on the following
Monday. At the summary judgment hearing, the motion justice stated that plaintiffs’ complaint
had not been timely filed, and she accordingly granted defendants’ motions for summary
judgment. The plaintiffs appealed the motion justice’s ruling.
4
The plaintiffs’ appeal was assigned to this Court’s show-cause calendar and was heard in
April 2006. In an order dated May 4, 2006, we decided that cause had, in fact, been shown, and
the matter was scheduled for full briefing. That order directed that the parties, in their briefs to
this Court, specifically address the following two questions:
“1. For purposes of an appeal of an amendment to a municipal
zoning ordinance in accordance with G.L. 1956 § 45-24-71, when
does a town council amendment to the zoning ordinance become
effective—when the council votes on the amendment or at some
later point in time?
“2. If the amendment does not become effective on the date of the
council vote, when does it become effective?”
II
Analysis
On appeal, plaintiffs advance several legal arguments challenging the motion justice’s
ruling. First, plaintiffs maintain that, strictly for the purpose of filing an appeal to the Superior
Court pursuant to § 45-24-71, the effective date of an ordinance amendment should be
contingent not upon the date of its passage by the council, but rather upon its printing and
publication in accordance with G.L. 1956 § 45-6-7 and the Code of Ordinances of the Town of
East Greenwich (East Greenwich Code). The plaintiffs point to other provisions of the General
Laws to support their interpretation of § 45-24-71. In addition, plaintiffs insist that what they
characterize as principles of fairness and justice require that the thirty-day appeal period
prescribed by § 45-24-71 should not begin to run until the public has had an opportunity to view
an amended ordinance in its final written form and thereby become able to ascertain whether a
legal cause for objection should be pursued.
5
A
Standard of Review
“This Court reviews the granting of summary judgment de novo and applies the same
standards as the motion justice.” Andreoni v. Ainsworth, 898 A.2d 1240, 1241 (R.I. 2006)
(quoting DeCamp v. Dollar Tree Stores, Inc., 875 A.2d 13, 20 (R.I. 2005)). We will “affirm the
judgment only if, after reviewing the evidence in the light most favorable to the nonmoving
party, we conclude that no genuine issue of material fact exists and that the moving party is
entitled to judgment as a matter of law.” Tanner v. Town Council of East Greenwich, 880 A.2d
784, 791 (R.I. 2005) (citing Roe v. Gelineau, 794 A.2d 476, 481 (R.I. 2002)).
Our de novo review, however, is not a panacea for a party’s failure to raise in the lower
court the specific legal basis for his or her objection to a motion for summary judgment. See
Konar v. PFL Life Insurance Co., 840 A.2d 1115, 1120 (R.I. 2004) (“Although our review of
summary judgment is de novo, it is not without limits.”). “‘In reviewing a summary judgment
award * * * we consider only those issues that were properly presented before the trial court.’”
Nedder v. Rhode Island Hospital Trust National Bank, 459 A.2d 960, 962-63 (R.I. 1983); see
also Konar, 840 A.2d at 1120 (“The taking of an appeal does not provide the appealing party
with a second bite at the apple. For example, a party may not assert an argument on appeal that
was not presented below.”).
“If a party fails to assert a legal reason why summary judgment
should not be granted, that ground is waived and cannot be considered or raised on appeal.”
Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (quoting Vaughner v. Pulito,
804 F.2d 873, 877 n.2 (5th Cir. 1986)). The party appealing an award of summary judgment
cannot “advance new theories or raise new issues in order to secure a reversal of the lower
court’s determination.” 10A Charles Alan Wright et al., Federal Practice and Procedure Civil: §
2716 at 282, 284, 286 (1998); see also 11 James WM. Moore, Moore’s Federal Practice §
6
56.41[3][c] at 56-303 (3d ed. 2006) (“As a general rule, arguments and evidence not presented in
the [trial] court in connection with a summary judgment motion are waived on appeal and the
appellate court will be unable to consider these materials in its review of the [trial] court’s
decision.”).6
B
Waiver
We are mindful that previously we issued an order in this case directing the parties to
address specific questions, with which they have complied fully.
However, after careful
consideration of the record, we are constrained to decide this case in accordance with our wellsettled raise-or-waive rule. See Ahlburn v. Clark, 728 A.2d 449, 452 (R.I. 1999) (noting that this
Court may “affirm a judgment on grounds not actually relied upon by the trial court to justify its
ruling”).
By failing to inform the motion justice of the legal bases for their objection to
defendants’ motions for summary judgment, plaintiffs have waived the arguments they now
present to this Court. At the summary judgment hearing, the motion justice stated her belief that
the court had received no objection from plaintiffs.7 The plaintiffs explained that they had sent
the objection to the court and to opposing counsel, but conceded that the objection had been filed
6
We pause to note that our reference here to federal precedent is not exceptional. Because of the
oft-noted fact that Rhode Island’s current rules of civil procedure are largely patterned after their
federal counterparts, this Court frequently seeks guidance from the federal jurisprudence in
deciding novel issues concerning civil process in this state. See, e.g., Gliottone v. Ethier, 870
A.2d 1022, 1025 (R.I. 2005) (“in situations in which our own case law is sparse in the area of
civil procedure, we shall consult the precedents in the federal courts since our Superior Court
Rules are patterned after the federal rules”).
7
Opposing counsel acknowledged receipt of plaintiffs’ objection on Thursday, March 24. PJC
Realty managed to reply to this objection, which was filed with the Superior Court on the same
day as the objection, Friday, March 25.
7
late, and offered no satisfactory justification for the omission.8 In any event, the motion justice
was unequivocal in that she had no knowledge of the filing, and, therefore, was never apprised of
the legal arguments presented therein. Despite this, however, plaintiffs made no effort to provide
the motion justice with a copy of the previously filed objection and affidavit or otherwise to
inform the motion justice at the hearing of the legal bases for their objection to defendants’
motions, despite numerous invitations by the motion justice to do exactly that. Undoubtedly, we
think, it was incumbent upon plaintiffs to inform the motion justice of the various legal
arguments they now advance before this Court to preserve them for our review. Their failure to
do so forces us to conclude that they have waived their claims. See Thomas v. Ross, 477 A.2d
950, 953 (R.I. 1984) (holding that a party who fails to argue certain issues at trial may not assert
those claims for relief at the appellate level).
Before concluding, we think it important to note the well-settled principle that, absent
express statutory language designating otherwise, an ordinance amendment becomes effective on
the date of its passage. See, e.g., 5 Eugene McQuillin, The Law of Municipal Corporations §
15:36 at 253 (3d rev. ed. 2004) (“[W]here publication is not required and there is no time
specified either in the charter or ordinance, the ordinance takes effect from the date of its
passage.”). We stress the corollary, however, that both the state and various municipalities of
this jurisdiction are free to assign, by positive enactment, a date or contingency other than the
date of passage as the effective date of an ordinance amendment. In fact, we strongly urge the
General Assembly and the various municipalities of this state to define, by positive enactment,
the “effective date” of an ordinance amendment and to set forth any conditions that necessarily
must be satisfied before the thirty-day appeal period provided for in § 45-24-71 begins to run.
8
The plaintiffs explained that they refrained from objecting sooner because, as they understood
it, “[the] case [was] about a millimeter away from settling.”
8
Furthermore, it is our view that citizens in a participatory democracy deserve that an ordinance
amendment in final written form be made available to the public forthwith once it has been
passed by a town or city council.
Conclusion
For the foregoing reasons, the ruling of the Superior Court is affirmed. The record shall
be remanded to the Superior Court.
9
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