Nunes v. Town of Bristol, Nos. 6

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: KELLEHER
• Citation: 232 A.2d 775,102 R.I. 729
• Parties: Joseph P. NUNES et al. v. TOWN OF BRISTOL et al. Gilbert FERREIRA et ux. v. TOWN OF BRISTOL et al. Appeal
• Decision Date: 18 August 1967
• Docket Number: 7,Nos. 6

Page 775

232 A.2d 775 102 R.I. 729 Joseph P. NUNES et al.
v.
TOWN OF BRISTOL et al.
Gilbert FERREIRA et ux.
v.
TOWN OF BRISTOL et al. Appeal Nos. 6, 7. Supreme Court of Rhode Island. Aug. 18, 1967.

[102 R.I. 740]

Page 776

Hugo L. Ricci, Providence, for Joseph P. Nunes et al.

Helen M. MacGregor, Providence, for Gilbert Ferreira et ux.

Anthony R. Berretto, Bristol, Ralph C. DeLuca, Providence, for respondents.

OPINION

[102 R.I. 730] KELLEHER, Justice.

These civil actions ¹ were brought to enjoin[102 R.I. 731] the construction by the town of Bristol of an addition to one of its fire stations. We treat these actions as having been certified to us as an agreed

Page 777

statement of facts pursuant to G.L.1956, § 9-24-25, as amended. In doing so, we think it appropriate to comment on the hybrid method chosen by the parties to bring these actions before us. In these cases a decree was entered on February 15, 1966, which includes fifteen separate findings of fact, a statement that the 'cause is ready for a final decree' and four questions propounded for our determination. The use of findings of fact and the four questions make it dubious as to whether these actions have been certified on an agreed statement of facts pursuant to § 9-24-25, as amended, or as questions of importance pursuant to § 9-24-27, as amended. It is clear that each section is different from the other. Section 9-24-25, which calls for the statement of facts, provides that a final judgment based on our decision will be entered by the superior court. Section 9-24-27 contains no such provision but merely states that proceedings in the superior court will be stayed pending our decision on the questions certified to us. Since this certification appears to have been initiated by the parties on the filing of an agreed statement of facts, it should be noted also that neither party filed in the superior court a motion for certification as is required by the provisions of rule 72(a) of the rules of civil procedure of the superior court. In deference to orderly procedure, it behooves all parties when they invoke our assistance pursuant to a certification statute to adhere with care to the established procedures incidental thereto. By failing to do so, they run the risk of an improper certification which we, quite properly, will not answer. Since we have before us in the instant cases an issue of extreme public interest involving the public safety of one of our municipalities, we shall overlook the unorthodox manner in which our aid is sought. Our action here, however, is taken without any intention of setting a precedent for the future.

[102 R.I. 732] The record discloses that sometime prior to August 17, 1961, the town of Bristol purchased a new addition to its fire-fighting equipment described in the record as a 'snorkel fire truck.' Because this particular apparatus is designed especially for the extinguishing of fires or the rescuing of people in the upper portions of tall buildings, it is of unusual design. The snorkel on this truck is a large boom at the end of which is a basket wherein stands the fire-fighter. With the aid of a hydraulic system this boom can be raised to great heights. In order to house the snorkel truck, it was planned to build an addition to the Dreadnaught fire station which stands at the southwesterly corner of High and Church streets.

When several of plaintiffs learned of the size and the proposed location of the addition, they initiated litigation which has succeeded in keeping the town in court and the fire truck out of the station for the past six years.

Building plans show that the addition would abut the property of one of plaintiffs and come within two feet of two of the remaining plaintiffs. The Bristol zoning ordinance, which is an exhibit here, shows that in 1961 a fire station was a permitted use in this area of the town. It is clear, however, that the proposed structure violated the area or set-back requirements of the ordinance.

Faced with this dilemma, the town council president applied to the zoning board for relief. The board granted the application but certain of plaintiffs appealed this action to us. In Nunes v. Zoning Board of Review, 93 R.I. 483, 176 A.2d 721, the town, for reasons which are not apparent in the record, conceded that the board's decision was a nullity. Because of this concession, this court on January 12, 1962, held that there was no further justiciable controversy between the parties and the decision of the board was quashed.

Later the controversy arose again because the town council amended the zoning ordinance by providing that the [102 R.I. 733] town, or any agency thereof, would be exempt from the provisions thereof whenever it sought to

Page 778

erect a use or a building for public or municipal purposes. ² The town also secured a building permit and commenced construction on the addition. Subsequently plaintiffs instituted suit and further construction was enjoined. When the causes were reached for trial, the superior court certified the following four questions:

'1. Is the Town of Bristol acting in a governmental (sic) capacity to erect an addition to an existing fire station exempt from the provisions of the zoning ordinance of the Town of Bristol.

'2. Does the Town of Bristol under the State Enabling Act (Title 45-24-1 through 20) or otherwise have the power by specific terms or otherwise to exempt itself from the operation of its zoning ordinance.

'3. If the Town of Bristol does have the power to exempt itself from the operation of its zoning ordinance, does this constitute an unlawful delegation of power by the legislature.

'4. If it is found that the Town of Bristol does not have the power to exempt itself then:

a. Does this use of land satisfy the requirements for a special exception as set forth in Section C(2) of the 1961 Zoning Ordinance of the Town of Bristol.

b. Does this use of land satisfy the requirements for a variance as set forth in Section C(3) of the 1961 Zoning Ordinance of the Town of Bristol'

We answer the first question in the negative; the second in the affirmative; the third in the negative. Because of our replies to the earlier inquiries, there is no need to reply to the fourth question.

102 R.I. 734

I

It needs no citation of authority to hold that a municipality when engaged in the construction or expansion of a fire station,...