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Rhode Island Lawyers Weekly / Zoning: Intervention – Retaining wall

By Tom Egan

April 29, 2015

 

Where two landowners petitioned to intervene in a Superior Court suit between an abutting plaintiff and the defendant town of Cumberland over a retaining wall on the plaintiff’s land, the Superior Court judge committed no error in finding the petitioners unentitled to intervene as of right or under Rule 24, which authorizes permissive intervention.


Background

“The petitioners Joseph and Angitta DiOrio live in Cumberland, Rhode Island, on a parcel of property identified in the record as Cumberland Tax Assessor’s Plat No. 49, Lot No. 56 (the DiOrio property), which directly abuts property identified in the record as Cumberland Tax Assessor’s Plat No. 49, Lot No. 57 (the Hines Road property),3 owned by plaintiff Hines Road, LLC. In 2006, plaintiff built a retaining wall on the Hines Road property in close proximity to the DiOrio property. According to petitioners, in 2008, defendant, the Town, ordered plaintiff to remove said retaining wall and ‘return the Hines Road property to its original configuration.’ However, petitioners assert that plaintiff failed to comply with that order; and, according to petitioners’ filings, in both March and September of 2010, the Town proceeded to issue two separate Notices of Violation to plaintiff with respect to the Hines Road property. The petitioners further allege that each Notice cited plaintiff’s failure to comply with permit requirements promulgated by the Town and that each Notice included both a stop-work order and a requirement that plaintiff remove the retaining wall.

 

“In October of 2010, plaintiff appealed to the Town’s Zoning Board of Review (the Board) with respect to the Notices of Violation. However, in March of 2011, during the pendency of that appeal, plaintiff and the Town came to an agreement regarding the retaining wall (the Agreement). The Agreement provided, inter alia, that plaintiff would: (1) complete certain tasks related to the permitting and construction of the retaining wall on the Hines Road property; and (2) withdraw its appeal to the Board. In return, the Agreement indicated that the Town would, inter alia, withdraw its stop-work order relative to the retaining wall on the Hines Road property. Subsequent to the execution of the Agreement, plaintiff withdrew its appeal to the Board as promised.

 

“It was at that point in time, after the parties had entered into the Agreement, that petitioners undertook their first attempt to challenge the arrangement that had been agreed to by plaintiff and the Town; they did so by filing an appeal with the Board. However, in October of 2011, the Board determined that it did not have jurisdiction over petitioners’ challenge (the 2011 Board decision). According to plaintiff’s Superior Court complaint, the Board held that, ‘because [the Agreement] was a contract between the Town and a private party [viz., plaintiff],’ the Board lacked jurisdiction. Significantly, petitioners did not appeal from that decision.

 

“In spite of the existing arrangement between plaintiff and the Town, by July of 2012 it appeared that plaintiff had not yet completed the work contemplated by the Agreement with respect to the retaining wall on the Hines Road property. The Town proceeded to issue its third Notice of Violation to plaintiff, citing (among other violations) plaintiff’s continued failure ‘to remove the unsafe wall at the [Hines Road property].’ As it had done with respect to earlier Notices, plaintiff appealed to the Board from the issuance of that third Notice. In response, in October of 2012, the Board determined that it lacked jurisdiction over the matter (the 2012 Board decision). Accordingly, unable to obtain redress from the Board, in November of 2012 plaintiff filed a complaint in Superior Court in order to litigate issues relating to the Agreement, thereby commencing the underlying action, in which the parties are plaintiff and the Town. Each count of the complaint directly relates to the Agreement and the parties’ ability to litigate its status before the Board and in Superior Court. Specifically, the complaint contains four counts: (1) a claim for declaratory judgment regarding the Superior Court’s jurisdiction to ‘declare the rights and responsibilities of the Parties pursuant to the Agreement’ (Count One); (2) a claim for equitable estoppel pertaining to the procedural propriety of plaintiff’s attempts to appeal from the 2012 Notice of Violation (Count Two); (3) a claim for injunctive relief to prevent the Town from undertaking legal action against plaintiff in regard to the Hines Road property until the Superior Court ‘determine[s] the rights, duties and obligations of the parties pursuant to the Agreement and applicable law’ (Count Three); and (4) a claim that the 2012 Board decision to the effect that the Board lacked jurisdiction over plaintiff’s appeal prejudiced ‘the substantial rights of … Plaintiff’ (Count Four). In sum, all four counts related to either the Agreement between plaintiff and the Town or plaintiff’s appeal from the 2012 Board decision determining that the Board lacked jurisdiction.

 

“Some months later, in February of 2013, petitioners filed a motion to intervene in the underlying Superior Court action pursuant to Rule 24. The petitioners argued that they were entitled to intervene as a matter of right pursuant to Rule 24(a) as abutting property owners. In addition, petitioners argued that they should be permitted to intervene pursuant to Rule 24(b), which rule deals with permissive intervention. The plaintiff objected to petitioners’ motion to intervene; the Town, by contrast, did not file any response to petitioners’ motion. After conducting a hearing on the motion (attended by the parties and the would-be intervenors), the hearing justice rendered a bench decision denying petitioners’ motion to intervene with respect to both intervention as a matter of right and permissive intervention. …

 

“In sum, the hearing justice found that petitioners could neither demonstrate their right to intervene under Rule 24(a)(2) nor show an adequate basis to justify permissive intervention under Rule 24(b)(2); accordingly, he denied petitioners’ Rule 24 motion to intervene. From the hearing justice’s decision, petitioners timely appealed.”

 

RI Supreme Court’s analysis
“The petitioners raise three arguments on appeal. First, noting the fact that petitioners’ property ‘directly abuts’ the Hines Road property and relying upon their interpretation of our decision in Caran v. Freda, 108 R.I. 748, 279 A.2d 405 (1971), petitioners argue that their status as abutting property owners entitles them to intervene as a matter of right in the underlying action between plaintiff and the Town. Second, petitioners contend that the hearing justice erred in ruling that their interest in the instant litigation is ‘contingent’ upon the Agreement between plaintiff and the Town. Specifically, petitioners argue that the Notice of Violation at issue in the 2012 Board decision was not related ‘in any way’ to the Agreement made between plaintiff and the Town. Finally, petitioners argue that their failure to appeal from the original 2011 Board decision determining that it lacked jurisdiction over petitioners’ appeal ought not to be ‘held against’ them. …

 

“… Most critically, in Caran the abutting property owners had a clear interest in the ultimate decision on the merits regarding a zoning variance that would permit construction of a shopping center on land directly adjoining their property. Specifically, the eventual disposition of the applicants’ appeal would determine whether or not the shopping center would be constructed. …

 

“By contrast, in the instant case, an adjudication concerning the Agreement between plaintiff and the Town would not yield a decision as to whether or not to construct the retaining wall. Unlike the petitioners in Caran, who, if not permitted to intervene, may have found themselves living next to a shopping center without having had a voice in the zoning decision which would have permitted its construction, petitioners in the instant case are already living with what is in their eyes the rough equivalent of that shopping center, because the wall has already been built. Furthermore, although the fact that the wall has been built may appear to support petitioners’ argument that their circumstances are similar to — or perhaps more dire than — that of the abutting property owners in Caran, we emphasize that the underlying action in the instant case simply permits plaintiff and the Town to resolve the issues surrounding whether or not plaintiff has lived up to the Agreement — an Agreement that relates to the wall, but is a contract to which petitioners are not a party. In other words, petitioners’ chosen route to attack the construction of the wall is both untimely (the wall has already been built) and procedurally inappropriate (since the instant case relates not to the merits of constructing the wall, but rather the Agreement between plaintiff and the Town).

 

“In sum, we are not persuaded that petitioners’ status as abutting property owners ipso facto entitles them to intervene in this particular case as a matter of right. We therefore hold that the hearing justice did not err in concluding that petitioners were not entitled to intervene as a matter of right pursuant to our decision in Caran. …

 

“The petitioners next argue that the hearing justice erred in ruling that their interest in the Superior Court action is merely ‘contingent’ upon the Agreement between plaintiff and the Town. … By its very nature, the underlying action in the case at bar concerns the dispute between plaintiff and the Town; the litigation centers on the Agreement between those parties and whether or not the Board could exercise jurisdiction over the dispute between them. Furthermore, the four counts of the complaint relate to a claim for declaratory judgment (regarding the Agreement), a claim for equitable estoppel (pertaining to plaintiff’s attempts to appeal from the 2012 Notice of Violation), a claim for injunctive relief to prevent the Town from undertaking legal action against plaintiff until the underlying action is resolved, and a claim that the 2012 Board decision (to the effect that it lacked jurisdiction over plaintiff’s appeal) prejudiced plaintiff’s rights.

 

“It is clear that the underlying action concerns the Agreement between plaintiff and the Town. Any legally cognizable interest of petitioners in the underlying action depends upon the resolution of the Agreement and may be fairly characterized as ‘contingent’ upon such resolution. .. Accordingly, we agree with the hearing justice — petitioners’ interest in the underlying action is ‘contingent’ upon the Agreement between plaintiff and the Town; consequently, we hold that the hearing justice did not abuse his discretion in so ruling. …

 

“… Notably, the hearing justice found: (1) that the wall had already been constructed; and (2) that other legal avenues existed that petitioners could have initiated. We are persuaded that those two findings suffice to show that the disposition of the action would not impede petitioners’ ability to protect their interest in their property. …”

 

Hines Road, LLC v. Hall, et al. (Lawyers Weekly No. 60-048-15) (15 pages) (Robinson, J.) (R.I. Supreme Court) Appealed from a decision by Matos, J., in Superior Court. Michael A. Kelly for the plaintiff; Jennifer R. Cervenka for the petitioners (Docket No. 2013-257-Appeal) (April 28, 2015).