Hines Road, LLC v. Neil Hall, in his capacity as Building Inspector for the Town of Cumberland
113 A.3d 924
R.I.2015Background
- DiOrio abutting the Hines Road property; the two parcels are Cumberland Plat No. 49, Lot Nos. 56 and 57.
- Hines Road, LLC built a retaining wall on the Hines Road property in 2006 near the DiOrio property.
- Town ordered removal of the wall and return to original configuration in 2008; notices of violation issued in 2010 citing permit failures and a stop-work order.
- Plaintiff appealed the 2010 notices to the Town’s Zoning Board of Review; in March 2011, an Agreement was reached between plaintiff and the Town; the Town agreed to withdraw the stop-work order and plaintiff to complete specified tasks and withdraw the appeal.
- Petitioners (the DiOrios) challenged the Agreement by appealing to the Board, which in 2011 determined it lacked jurisdiction; Petitioners did not appeal that decision.
- By 2012-2013, the Town issued a third Notice of Violation; Board again found no jurisdiction in 2012; plaintiff filed the underlying Superior Court action (counts related to the Agreement and Board proceedings); petitioners moved to intervene under Rule 24.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Abutting owners' right to intervene as of right | Abutting owners have a direct interest under Caran. | Caran does not apply; intervenors not entitled here. | Not entitled to intervene as of right |
| Whether petitioners’ interest is contingent on the Agreement | Interest is sufficiently close and direct despite contingency. | Interest is contingent upon the Agreement and not enough to justify intervention. | Interest is contingent; no intervention as of right |
| Consideration of petitioners' failure to appeal the 2011 Board decision | Failure to appeal weighs against intervention | Not a decisive factor; other grounds exist | Trial court's consideration of that failure within Tonetti factors affirmed |
Key Cases Cited
- Caran v. Freda, 108 R.I. 748 (1971) (abutting owners’ special interest justifies intervention in some appellate contexts)
- Tonetti Enterprises, LLC v. Mendon Road Leasing Corp., 943 A.2d 1063 (R.I. 2008) (four-factor test for Rule 24(a)(2) intervention)