O'Neill v. Carr, 84-45-A

• Decision Date: 24 March 1987
• Docket Number: No. 84-45-A,84-45-A
• Citation: 522 A.2d 1213
• Parties: James W. O'NEILL, et al. v. Mary Jo CARR, et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1213

522 A.2d 1213

James W. O'NEILL, et al. v. Mary Jo CARR, et al.

No. 84-45-Appeal.

Supreme Court of Rhode Island.

March 24, 1987.

Joseph R. Palumbo, Jr., Palumbo Galvin & Boyle, Middletown for plaintiffs.

Maryjo Carr, City Solicitor for City of Newport, for defendants.

William P. Robinson III, Edwards & Angell, Providence, as Intervenor.

OPINION

KELLEHER, Justice.

This is a Superior Court civil action in which the plaintiffs ¹ seek a writ of mandamus that would compel the city solicitor and the zoning enforcement officer of the city of Newport to revoke certain building permits allegedly issued in violation of the city's zoning ordinance and to compel the defendants to enforce the pertinent zoning-ordinance provisions against buildings already under construction. ² The dispute came before the trial justice on cross-motions for summary judgment. He granted the defendants' motion and denied the plaintiffs' motion. The plaintiffs now appeal.

The facts in this litigation are undisputed. On April 13, 1979, a group of individuals not involved in this litigation filed an application for a special exception for the construction of multifamily units within the confines of a Newport ocean-front estate known as Bonniecrest. The applicable zoning ordinance at the time permitted multifamily dwellings on such acreage as Bonniecrest by way of special exception. The zoning board granted the application on April 26, 1979.

Three months later, in late July, a building permit was issued authorizing construction of foundations for multifamily units at Bonniecrest. No construction was ever commenced under this permit. Subsequently on May 7, 1980, the Newport City Council amended its zoning ordinance so as to prohibit construction of multifamily dwellings on property having certain dimensions. The Bonniecrest parcel comes within the prohibition.

On August 15, 1980, the original group sold its interest in Bonniecrest to the Bonniecrest Development Company. Notwithstanding the May 1980 prohibition, a second building permit was issued in September 1981 authorizing construction of the foundations for two buildings that were to be used as multifamily dwellings. In mid-October 1981 the Bonniecrest Development Company sold its title and development rights in the Bonniecrest endeavor to Abraham D. Gosman (Gosman), an individual who was allowed to intervene in these proceedings as defendant.

Gosman obtained permits for full construction of both buildings on October 22, 1981. Later Gosman was informed by the then-city solicitor, Thomas W. Kelly, that no more building permits would be issued for any new Bonniecrest construction because of an amendment to the zoning ordinance enacted by the city council in early May 1980. Gosman responded to this motion by filing an application for relief with the zoning board of review.

The zoning board considered Gosman's application at a hearing conducted on February 22, 1982. The hearing focused on whether substantial construction had already begun at Bonniecrest prior to the change in the ordinance. The zoning board found that Gosman had indeed incurred substantial construction costs at Bonniecrest and was therefore entitled to continue.

In the summer of 1982 permits were issued to Gosman for the construction of three more buildings at Bonniecrest. Subsequently, in October 1982, plaintiffs appealed the issuance of the permits to the zoning board, which ruled that plaintiffs' appeal had not been filed within a reasonable time after the issuance of the permits. The plaintiffs appealed the board's decision to the Superior Court, where the appeal is presently pending.

In ruling on the cross-motions for summary judgment, the trial justice declined to issue the prerogative writ of mandamus because of his belief that (1) in zoning matters the only individual authorized to enforce the zoning ordinances by way of litigation is the city or town solicitor in this jurisdiction and (2) mandamus would not lie in this case because plaintiffs had failed to exhaust their administrative remedy.

In describing the city solicitor as the sole enforcement official in zoning matters, the trial justice relied upon G.L.1956 (1980 Reenactment) § 45-24-7 and Town of Coventry v. Hickory Ridge Campground, Inc., 111 R.I. 716, 724, 306 A.2d 824, 828-29 (1973), where this court ruled that only a municipality, acting through its solicitor, could initiate actions to enforce local zoning ordinances. ³ On occasion this court has held that a private individual has standing to bring a mandamus action when the private interest to be protected is independent of the public interest. Daluz v. Hawksley, 116 R.I. 49, 351 A.2d 820 (1976).

The plaintiffs have alleged that the proposed multifamily units at Bonniecrest would cause their property to diminish in value, clearly a private or particular interest to be protected. Although the plaintiffs may...