Town of Coventry v. Hickory Ridge Campground, Inc.

• Decision Date: 06 July 1973
• Docket Number: No. 1840-A,1840-A
• Citation: 111 R.I. 716,306 A.2d 824
• Parties: TOWN OF COVENTRY v. HICKORY RIDGE CAMPGROUND, INC., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 824

306 A.2d 824

111 R.I. 716

TOWN OF COVENTRY v. HICKORY RIDGE CAMPGROUND, INC., et al.

No. 1840-Appeal.

Supreme Court of Rhode Island.

July 6, 1973.

Richard Del Sesto, Providence, Town Sol., Town of Coventry, for plaintiff

Marion J. Dillon and Francis J. Maguire, Dillon & Maguire, Providence, for intervenors.

James F. Murphy, Coventry, for defendants.

OPINION

ROBERTS, Chief Justice.

This is an action brought in the name of the Town of Coventry by the town solicitor, pursuant to the provisions of G.L.1956 (1970 Reenactment) §§ 45-24-6 and 45-24-7, to enjoin the defendants, Hickory Ridge Campground, Inc., Franklin Reed, and Grace D. and Vartan Hartunian, from building a campground and trailer park within that town pursuant to building permits issued by the building inspector of that town. It is in this court on appeals from an order of the trial justice granting a motion to intervene as to certain individuals, and a cross-appeal from the denial of a motion to intervene as to other individuals. Also involved is an appeal from an order of the trial justice denying without prejudice the motion of the intervenors to vacate a judgment on a consent decree between the original plaintiff, the Town of Coventry, and the defendants in the cause. ¹

The travel of this case is somewhat involved. The action was instituted by the town solicitor pursuant to the pertinent statute on May 27, 1971. On July 6, 1971, Harold and Ruth R. Sheldon and Lloyd A. and Joyce H. Phillips, the owners of property abutting on the site of the proposed campground, moved to intervene in the suit brought by the town against defendants; however, defendants objected to the motion. Subsequently, on July 30, 1971, without notice to the Sheldons or the Phillips, the town and defendants entered into a consent decree, and judgment was entered thereon on that same date.

For almost a year after the consent decree was entered, certain of the abutting landowners opposing the building of the campground pursued other avenues in seeking to prevent action by defendants under the building permits. Finally, the motion to intervene in the instant action was heard on June 19, 1972, but decision was reserved by the court on that motion. At the same time counsel for Sheldons and Phillips moved orally to permit intervention in the case by the following owners of land abutting on the campsite: Claude Sheldon; Vernon and Jacquelyn Hardy; William Spencer; William and Mary Marino; and Andrew Wallace, Jr. and Dorothy Wallace.

On July 7, 1972, the trial justice granted the motion of the Sheldons and the Phillips to intervene and also permitted the Hardys to intervene. He denied, however, the motion to intervene of the Marinos, the Wallaces, William Spencer, and Claude Sheldon. On that same day those whose motion to intervene had been granted moved to vacate the judgment entered pursuant to the consent decree.

Subsequently, on July 11, 1972, defendants appealed from the order granting the motion to intervene on the part of the Sheldons and the Phillips and the Hardys, and on July 17, 1972, the town also appealed from the order granting intervention to the above-named parties. On July 18, 1972, the trial justice denied without prejudice the motion of the intervenors to vacate the judgment entered pursuant to the consent decree and reserved to the intervenors the right to renew that motion after a decision on the appeals of defendants and the town. Again, on July 21, 1972, William Spencer, the Marinos, the Wallaces, and the Hardys also appealed from the order of the trial justice denying their motions to intervene. Finally, on July 22, 1972, the intervenors appealed from the order of the trial justice denying the motion to vacate the consent decree between the town and defendants.

We have before us, then, first, the appeals of defendants and the town from the order granting the motion to intervene; second, the appeal of those whose motion to intervene has been denied; and third, the appeal of the intervenors from the denial of their motion to vacate the consent decree.

I.

We turn, now, to the question of whether the order granting the motion to intervene is appealable as is contended by the town and by defendants. It is well settled that the federal courts consistently hold that an order allowing intervention is not a final order and, therefore, that the granting of a motion to intervene is not appealable. Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186 (2d Cir. 1970); Kris Petroleum, Ltd. v. Stoddard, 221 F.2d 801 (9th Cir. 1955); Otten v. Baltimore & O.R.R., 205 F.2d 58, 59 (2d Cir. 1953); 3B Moore, Federal Practice 24.15, at 24- 561 (2d ed. 1969). The federal rule is designed to discourage fragmented litigation, and, in our opinion, it is the better rule to follow. We conclude, then, that the appeals of the town and defendants are not properly before us, and we are without jurisdiction to consider them. ²

II.

Also presented here is a question of whether the denial of a motion to intervene as of right is appealable. In our opinion, such a denial of a motion to intervene has sufficient finality to be appealable. Industrial National Bank v. Colt, 101 R.I. 488, 224 A.2d 900 (1966); accord, Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961). It is our conclusion, then, that the cross-appeal of those whose motion to intervene was denied is properly before us, and we turn to the question of whether it was error to deny the motion of these appellants.

In the instant action the town seeks to enjoin defendants from acting in violation of the zoning ordinance of the town of Coventry. Sections 45-24-6 and 45-24-7 confer upon the town council authority to invoke judicial assistance in the enforcement of local zoning ordinances. Such assistance is obtained by the institution of an appropriate action in the name of the municipality by the town solicitor. We have held that under these statutory provisions only the town can initiate a suit to enjoin violations of local zoning ordinances. Mauran v. Zoning Board of Review, 104 R.I. 604, 247 A.2d 853 (1968); Town of Lincoln v. Cournoyer, 95 R.I. 280, 186 A.2d 728 (1962). Furthermore, this court has specifically held that intervention by an adjoining landowner in a proceeding brought by the town solicitor in the name of the town pursuant to §§ 45-24-6 and 45-24-7 is not permissible. Town of Lincoln v. Cournoyer, supra.

The defendants argue that the Cournoyer rule denying intervention in such suits is applicable to the case at hand. Those that were denied the right to intervene argue to the contrary, contending that they have such a right pursuant to Super.R.Civ.P. 24(a). The decision in Cournoyer was rendered in 1962 prior to the adoption of the Superior Court Rules of Civil Procedure. We are, therefore, faced for the first time with the question of whether the enactment of the new rules and more specifically Rule 24(a) affects the rule of Cournoyer prohibiting intervention.

The enabling act which authorizes the Superior Court, with the approval of this court, to promulgate rules of procedure and practice provides: 'Such rules, when effective, shall supersede any statutory regulation in conflict therewith.' General Laws 1956 (1969 Reenactment) § 8-6-2 (Supp.). Intervention was never a right at common law and was only permitted where granted by statute. Garey v. Marcus, 92 R.I. 25, 166 A.2d 220 (1960). At the time of Cournoyer the practice in Rhode Island was only to allow intervention proceedings in equity. However, Rule 24 extends the scope of intervention.

In Cournoyer we denied the right to intervene because we felt that the Legislature had been explicit in providing that only the town through its solicitor could seek enforcement of its zoning ordinances. We said that we would not assume that the Legislature intended that adjoining landowners would be able by intervention to do what they could not do by direct action. However, such a rule is inconsistent with the scope and intent of Rule 24. In light of § 8-6-2, which holds that rules of court procedure take precedence over prior inconsistent procedural legislation, we must retreat from the absolute prohibition on intervention annunciated in Cournoyer.

Rule 24(a)(2) provides that upon timely application an individual will be permitted to intervene as of right '* * * when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.' In Caran v. Freda, 108 R.I. 748, 279 A.2d 405 (1971), we held that abutting landowners could invoke the mandatory provisions of Rule 24(a) in appeals from zoning board to the Superior Court. We reached this conclusion for the reason that the adjoining landowners were threatened with a loss in the value and enjoyment of their property if the Superior Court overturned the zoning board's denial of an application for a variance. We took the view also that, the zoning board being without standing to seek review of such denial by the Superior Court, Hassell v. Zoning Board of Review, 108 R.I. 349, 275 A.2d 646 (1971), the interest of the abutting landowners might not be adequately represented in the Superior Court. Hence, we found that abutting landowners had met the criterion of Rule 24(a)(2) to allow them to intervene as of right.

Here the trial justice, in considering the motion to intervene, set out the requirements of Rule 24(a)(2). He then reviewed the record in the case and concluded that the failure of the town solicitor to appear in court on the town's motion for preliminary injunction in this case, and also the town solicitor's action in entering into a consent decree while a motion to intervene was pending constituted inadequate representation of the interests of the citizens of the town of Coventry. While he concluded that all citizens of the town were bound by the judgment in the...