Providence County Superior Court. (PC 12-5685). Associate Justice William P. Robinson III.
For Plaintiff: Michael A. Kelly, Esq.
For Petitioners: Jennifer R. Cervenka, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
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). 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 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.
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), which directly abuts property identified in the record as Cumberland Tax Assessor's Plat No. 49, Lot No. 57 (the Hines Road property), 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 ...