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Thompson v. Carlson12/14/2005
7 A.2d at 307 ("To be sufficient, the notice sent 'must be reasonably calculated, in light of all the circumstances, to apprise the interested parties of the pendency of the action, of the precise character of the relief sought and of the particular property to be affected.'") (Internal citation omitted.) Although "action taken by a board that has not satisfied the notice requirements is a nullity[,]" Ryan, 656 A.2d at 615-16 (citing Corporation Service, Inc. v. Zoning Board of Review of East Greenwich, 114 R.I. 178, 180, 330 A.2d 402, 404 (1975)), a determination of "whether a notice in a given case meets the tests will turn on its facts." Paquette v. Zoning Board of Review of West Warwick, 118 R.I. 109, 111, 372 A.2d 973, 974 (1977).
However, the right to notice may be waived by a party who appears before a zoning board and presents his or her position at the hearing. See Ryan, 656 A.2d at 616 (observing that "appearance before the zoning board is proof that the unnotified party had the opportunity to present facts that would assist the zoning board in the performance of its duties, and therefore, such a party waives the right to object to any alleged deficiency of notice."); Zeilstra, 417 A.2d at 307 ("When a party appears before a zoning board of review and avails himself of the opportunity to present his position to the board, he thereby waives his right to object to any alleged deficiencies of notice.").
In the present case, the Appellants do not appear to be asserting that their due process rights were violated due to alleged deficiencies in the notice. If they were to take such a position, that argument would fail because, by appearing at the hearing, they waived their right to notice. Consequently, substantial procedural due process rights of the Appellants were not prejudiced. It appears to this Court that the Appellants are seemingly challenging the adequacy and sufficiency of the notice and are maintaining that the Zoning Board lacked jurisdiction due to the defects in the Application and Notice.
In Pascalides v. Zoning Bd. of Review of the City of Cranston, 97 R.I. 364, 197 A.2d 747 (1964), the Applicant, Rosedale Apartments, Inc., sought a special exception to build an apartment building on a piece of land consisting of two adjacent lots at 1180 Narragansett Boulevard. However, although the address was correctly identified as 1180 Narragansett Boulevard, and although one of the lots was correctly identified as lot 1912 on Assessor's Plat 2/3, the second lot was incorrectly described as lot 3998 instead of 3898 on the same Assessor's Plat. In reviewing the defective notice in Pascalides, the Rhode Island Supreme Court held that the defect was "a minor one and in the circumstances more in the nature of a harmless typographical error." Id. at 368, 197 A.2d at 750. Noting that the street address, as well as the incorrect lot number, was listed in the notice, the Court declared that " he mistake in this further description was not of sufficient consequence to vitiate the otherwise clear and definite identification of the particular land upon which the applicant proposed to erect [the proposed] building . . . ." Id. at 368-69, 197 A.2d at 750. The Court later stated that " he applicant was entitled to have its land treated as one lot for its purpose in seeking to obtain relief from the zoning board in order to realize the benefits of the use permitted in the district." Id. at 369, 197 A.2d at 751.
In the present case, the record reveals that the Applicant submitted a request for a variance pursuant to Sections 303, 201 and 902 of the Zoning Ordinance of the City of Providence, in order to expand existing bathroom and kitchen facilities by "29' X 20' (approx 373 sq
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