Hines Road, LLC v. Neil Hall, in his capacity as Building Inspector for the Town of Cumberland

Supreme Court
No. 2013-257-Appeal.
(PC 12-5685)
Hines Road, LLC :
v. :
Neil Hall, in his capacity as Building :
Inspector for the Town of Cumberland et
al.
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2013-257-Appeal.
(PC 12-5685)
Hines Road, LLC :
v. :
Neil Hall, in his capacity as Building :
Inspector for the Town of Cumberland et
al.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. The petitioners, Joseph and Angitta DiOrio, appeal
from an order by the Providence County Superior Court denying their motion (filed pursuant to
Rule 24 of the Superior Court Rules of Civil Procedure) to intervene in the underlying civil
action commenced by the plaintiff, Hines Road, LLC, against the defendants, collectively
referred to as the Town of Cumberland (the Town).1 This case came before the Supreme Court
pursuant to an order directing the parties to appear and show cause why the issues raised in this
1
For the sake of brevity, we shall refer only once to the multitude of defendants named in
the complaint in the underlying action: Neil Hall, in his capacity as Building Inspector for the
Town of Cumberland; John McCoy, in his capacity as Chairman of the Town of Cumberland
Zoning Board of Appeals; Carl Zoubra, in his capacity as Co-Chairman of the Town of
Cumberland Zoning Board of Appeals; Peter Vosdagalis, in his capacity as a member of the
Town of Cumberland Zoning Board of Appeals; Robert Chaput, in his capacity as a member of
the Town of Cumberland Zoning Board of Appeals; Edmond McGrath, in his capacity as a
member of the Town of Cumberland Zoning Board of Appeals; Nicholas Goodier, in his
capacity as a member of the Town of Cumberland Zoning Board of Appeals; Richard Barret, in
his capacity as a member of the Town of Cumberland Zoning Board of Appeals; and the Town
of Cumberland, as a municipal entity.
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appeal should not be summarily decided. After a careful review of the record and after
consideration of the parties’ written and oral submissions, we are satisfied that cause has not
been shown and that this appeal may be decided at this time. For the reasons set forth in this
opinion, we affirm the order of the Superior Court denying the motion to intervene.
I
Facts and Travel
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),2 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.4
2
The DiOrio property is located at 21 Georgiana Drive in Cumberland.
3
The Hines Road property is located at 138 Wrentham Road in Cumberland.
4
The stop-work order related to construction of the retaining wall, according to an
agreement between plaintiff and the Town, which is described infra.
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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).5 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
5
We note that the record does not contain a copy of the 2011 Board decision concerning
its own jurisdiction that is referenced in the text; as a result, we must rely upon the parties’
filings to discern the details of that decision. Accordingly, from the parties’ filings, it is unclear
whether the 2011 Board decision related solely to petitioners’ challenge, or whether it addressed
plaintiff’s earlier appeal to the Board. Regardless, it is clear that the Board declined to exercise
its jurisdiction in the matter.
-3-
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),
-4-
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.
First, with regard to intervention as a matter of right, the hearing justice ruled that the
petitioners were not able to demonstrate that they had a right to intervene pursuant to Rule 24(a);
in so ruling, the hearing justice was guided by the four-factor test articulated by this Court in
Tonetti Enterprises, LLC v. Mendon Road Leasing Corp., 943 A.2d 1063, 1072-73 (R.I. 2008)
(hereinafter Tonetti). In our opinion in Tonetti, we described the four-factor test as follows:
“Under Rule 24(a)(2), an applicant will be granted intervention as
of right if [(1)] the applicant files a timely application * * * ,
[(2)] the applicant claims an interest relating to the property or
transaction which is the subject matter of the action, [(3)] the
disposition of the action may as a practical matter impair or
impede the applicant’s ability to protect that interest, and [(4)] the
applicant’s interest is not adequately represented by current parties
to the action * * * .” Tonetti, 943 A.2d at 1072-73 (emphasis
added).
The hearing justice began his analysis by focusing on the first factor, finding that
petitioners’ motion was timely filed. However, he then proceeded to find that petitioners had
failed to satisfy the second and third factors of the Tonetti test.
Specifically, as to the second factor, the hearing justice stated that, although petitioners’
interest in the underlying action was “close,” he found that interest to be “contingent upon a
determination of the Agreement,” and he stated that “[t]he [A]greement is between the parties
[i.e., plaintiff and the Town], and the DiOrios [petitioners] are not a party to that [A]greement.”
-5-
As such, the hearing justice concluded that petitioners’ interest did not sufficiently relate to the
subject matter of the underlying action so as to satisfy the second factor of the Tonetti test.
Next, with respect to the third factor of the Tonetti test, the hearing justice found that the
underlying action did not “threaten to impede [petitioners’] ability to protect [their] interest
because * * * there [were] other legal actions that [petitioners] could have pursued regarding the
wall.” Thus, in the hearing justice’s estimation, the disposition of the underlying action would
not impair petitioners’ ability to protect their own interests; for that reason, he concluded that
petitioners had failed to satisfy the third factor of the Tonetti test.
Notwithstanding his negative findings with respect to the second and third factors, the
hearing justice went on to find that petitioners had made a “satisfactory showing” regarding the
fourth factor of the Tonetti test—namely, that the existing parties in the underlying action did not
adequately represent petitioners’ interests. Nevertheless, having determined that petitioners had
failed to demonstrate that they satisfied (as required) all four factors of the Tonetti test, the
hearing justice concluded that petitioners were not entitled to intervene as of right under Rule
24(a)(2). See Tonetti, 943 A.2d at 1072-73.
Finally, the hearing justice turned to petitioners’ contention that they should be permitted
to intervene under Rule 24(b)(2) (permissive intervention). Pursuant to Rule 24(b)(2), “[u]pon
timely application anyone may be permitted to intervene in an action * * * [w]hen an applicant’s
claim or defense and the main action have a question of law or fact in common.” In light of the
hearing justice’s earlier finding that the motion was timely, he moved directly to consider
whether there existed a common question of law or fact between petitioners’ claims and the
underlying action. The hearing justice found, however, that petitioners had not demonstrated the
existence of a common question of law or fact because “the issues to be litigated in [the
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underlying action] are not the same factual or legal issues that would be litigated in any action
that [petitioners] would seek to litigate regarding their interest vis-à-vis the Hines Road
property.” On that basis, the hearing justice concluded that petitioners had failed to demonstrate
that they should be accorded the status of permissive intervenors.
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.
II
Standard of Review
Although we have described Rhode Island precedent concerning motions for intervention
as “sparse,” Tonetti, 943 A.2d at 1073; Credit Union Central Falls v. Groff, 871 A.2d 364, 367
(R.I. 2005), we have nonetheless indicated with respect to intervention as of right that “[t]his
Court reviews a trial justice’s grant of a motion to intervene for abuse of discretion, reversing
only if the justice failed to apply the standards set forth in Rule 24(a)(2), or otherwise committed
clear error.” Town of Coventry v. Baird Properties, LLC, 13 A.3d 614, 619 (R.I. 2011); see also
Marteg Corp. v. Zoning Board of Review of Warwick, 425 A.2d 1240, 1242 (R.I. 1981) (“[I]t is
well settled that the determination of timeliness [of an application for intervention] is a matter
committed to the sound discretion of the trial justice.”).
Similarly, we have also utilized the abuse of discretion standard of review in the context
of Rule 24(b)(2)—viz., permissive intervention. See Town of Smithfield v. Fanning, 602 A.2d
939, 943-44 (R.I. 1992) (holding that the trial justice did not abuse his discretion by declining to
grant permissive intervention under Rule 24(b)).
-7-
III
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. We shall address each of petitioners’ arguments below.
A
Rights of Abutting Property Owners
We begin with petitioners’ contention that the Caran decision affords them the right to
intervene in the underlying action. To put that contention in context, we shall first refresh the
reader’s recollection of our ruling in that case. In Caran, 108 R.I. at 749-50, 279 A.2d at 406-07,
a town zoning board of review held a hearing on an application for a variance related to the
proposed construction of a shopping center. Those who appeared before the board included the
applicants themselves as well as owners of property abutting the site at issue; the attorney for
those abutters entered an appearance at the hearing and voiced their concerns regarding the
variance at issue. Id. at 750, 279 A.2d at 406. The town ultimately denied the application for the
-8-
variance, and the applicants appealed to the Superior Court, serving a complaint upon the town
solicitor, but failing to serve the attorney who had represented the abutting property owners at
the zoning board of review hearing. Id. Our opinion in the Caran case passed upon the issue of
whether to apply a procedural rule requiring service of the complaint upon the abutting property
owners in the context of the applicants’ appeal to the Superior Court; however, this Court also
had occasion to pass upon the propriety of intervention by the abutting property owners in the
initial application hearing before the town’s zoning board of review. Id. at 753, 279 A.2d at 408.
Specifically, we stated:
“[The] petitioners, as abutting property owners, have a special
interest in the pending appeal. If the right of appeal is lost to the
board, it is conceivable that petitioners would be confronted with a
threat of loss in the value and enjoyment of their property. This
potential threat gives petitioners the right to invoke the mandatory
provisions of Rule 24(a).” Caran, 108 R.I. at 753, 279 A.2d at 408.
Upon scrutinizing the facts of the Caran case as described above, it is apparent that the attendant
circumstances in that case differ significantly from those at bar. 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. Id.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
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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.
B
The Petitioners’ Interest in the Underlying Action
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. In Tonetti, we addressed that consideration explicitly, stating that “[a]n intervenor’s
interest must bear a sufficiently close relationship to the dispute between the original litigants
and the interest must be direct, not contingent.” Tonetti, 943 A.2d at 1073 (emphasis added)
(internal quotation marks omitted). 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
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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. See Tonetti, 943 A.2d at 1073. 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.
C
The Petitioners’ Failure to Appeal from the 2011 Board Decision
Finally, petitioners contend that the hearing justice erred in considering their failure to
appeal from the 2011 Board decision as a factor weighing against intervention in the underlying
action. However, even if we were persuaded that petitioners’ failure to appeal from the 2011
Board decision ought not to be considered in conjunction with whether they satisfied the four
Tonetti factors, the hearing justice’s decision denying intervention did not constitute an abuse of
discretion—simply because there were other grounds for his finding that the disposition of the
action did not impede petitioners’ ability to protect their interest in their property. Notably, the
hearing justice found: (1) that the wall had already been constructed; and (2) that other legal
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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. First, any interest that petitioners had in preventing the
construction of the wall has been precluded by its construction, which occurred before plaintiff
even initiated the underlying action. Second, with respect to the ability of petitioners to
undertake other legal actions, we note that petitioners conceded at oral argument that they have
initiated a separate legal proceeding with respect to their concerns regarding the wall as it affects
the DiOrio property. Accordingly, we hold that the hearing justice did not commit reversible
error in considering petitioners’ failure to appeal from the 2011 Board decision as one factor
weighing against intervention.
In sum, we hold that the petitioners have not raised any arguments that demonstrate that
the hearing justice abused his discretion in finding that the petitioners failed to fulfill the four
Tonetti factors, with respect to Rule 24(a)(2) intervention, nor have the petitioners proffered any
convincing arguments that demonstrate that the hearing justice abused his discretion in finding
that the petitioners were not entitled to permissive intervention.6 As such, we hold that the
hearing justice did not abuse his discretion in denying the petitioners’ motion to intervene.
6
We note that all three of petitioners’ arguments on appeal have been presented supra, and
that those contentions noticeably lack any specific legal arguments that relate to whether or not
the hearing justice erred in denying petitioners’ motion for permissive intervention. To the
extent that petitioners’ claims of error on appeal related to the hearing justice’s decision on their
motion for permissive intervention, we note that our analysis above has effectively disposed of
these arguments. Should there exist other legal arguments for permissive intervention by
petitioners in the underlying action, petitioners have failed to raise those arguments before us,
and, on the basis of our well-settled precedent, we deem those arguments to be waived. See
Bowen Court Associates v. Ernst & Young, LLP, 818 A.2d 721, 728 (R.I. 2003) (“We have
repeatedly held, consistent with Article I, Rule 16(a) of the Supreme Court Rules of Appellate
Procedure, that a party’s failure to include a particular issue in his, her, or its brief on appeal
results in a waiver of that issue. * * * Indeed, Rule 16(a) includes language embodying this rule,
providing that [e]rrors not claimed, questions not raised and points not made [in a party’s brief]
- 12 -
IV
Conclusion
We affirm the Superior Court’s decision to deny the petitioners’ motion to intervene.
The record may be returned to that tribunal.
ordinarily will be treated as waived and not considered by the court.”) (internal quotation marks
omitted); see also Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n. 1
(R.I. 2002).
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Hines Road, LLC v. Neil Hall, in his capacity as Building
Inspector for the Town of Cumberland et al.
CASE NO: No. 2013-257-Appeal.
(PC 12-5685)
COURT: Supreme Court
DATE OPINION FILED: April 28, 2015
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice William P. Robinson III
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Luis M. Matos
ATTORNEYS ON APPEAL:
For Plaintiff: Michael A. Kelly, Esq.
For Petitioners: Jennifer R. Cervenka, Esq.