Gabriele v. Rocchio

OPINION PER CURIAM. This case came before the court for oral argument on September 12, 1995, pursuant to an order that had directed both parties to appear in order to show cause why the issues raised in this appeal should not be summarily decided. After hearing the oral argument and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues should be summarily decided. Certain intervenors have appealed from a judgment of the Superior Court that denied a motion to vacate an earlier judgment of the Superior Court reversing a decision of the zoning board of review for the town of Glocester. The Superior Court judgment authorized the plaintiffs before the Superior Court to construct an electronic transmission tower. Thereafter, parties who had appeared before the zoning board in opposition to the application for special exception sought to intervene before the Superior Court and to vacate the earlier judgment of that court on the ground that they had not been notified of the appeal taken to the Superior Court in accordance with G.L.1956 (1991 Reenactment) § 45-24r-69. A justice of the Superior Court granted the motion to intervene but denied the motion to vacate the prior judgment. From this denial the intervenors have appealed to this court. This court has held in numerous cases that review of a judgment of the Superior Court on an appeal from a decision of a zoning board may be had only by petition for the discretionary writ of certiorari. See, e.g., Harmel Corp. v. Members of the Zoning Board of Review of Tiverton, 603 A.2d 303 (R.I.1992); OK Properties v. Zoning Board of Review of Warwick, 601 A.2d 953 (R.I.1992); Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646 (R.I.1981); Hassell v. Zoning Board of Review of East Providence, 108 R.I. 349, 275 A.2d 646 (1971). Neither the current statute, § 45-24-69, nor its predecessor, § 45-24-20, provides for any appeal to the Supreme Court from a Superi- or Court judgment on an appeal from a decision of a zoning board of review. Thus, review may be obtained only by the common law writ of certiorari, which may be issued pursuant to the plenary power granted to the Supreme Court by the Constitution of the State of Rhode Island. The intervenors seek to draw a distinction between an order denying a motion to vacate a judgment and review of the judgment itself. We perceive no such distinction. The motion to vacate challenges the correctness [567] of the judgment from which no statutory appeal is provided. Thus, the only means of review would be by petition for issuance of a writ of certiorari. Consequently, the appeal of the interve-nors is denied and dismissed. The papers in the case may be remanded to the Superior Court.