Opinion
June 14, 1974.
PRESENT: Roberts, C.J., Joslin, Kelleher and Doris, JJ.
1. ZONING. Building Permits. Issuance Pending Appeal. Where, pending appeal, subject real estate was conveyed to a third party which commenced construction under permits applied for and granted under amended, more rigorous, zoning ordinance, entitlement to permits applied for under pre-amendment ordinances ceased to be a justiciable question.
2. APPEAL. Motion to Intervene. Purpose of Intervention. Effect of Dismissal of Case. In case held not to merit consideration of appellate court, grant of motion to intervene entered after the case was docketed would be rescinded as improvident where the interventor's only interest in the case was a possible adverse stare decisis effect of any judgment on the merits and protection of that interest, rather than requiring intervention, merited at most only permission to participate by filing an amicus curiae brief.
CIVIL ACTION involving the right of plaintiffs to building permits, before Supreme Court on appeal of defendants following entry of judgment in Superior Court pursuant to decision of Weisberger, P.J., heard and because matter in issue had ceased to be a justiciable question the appeal was sustained, the judgment was reversed pro forma, and case remitted to Superior Court for further proceedings.
Pat Nero, for plaintiffs.
Peter Palombo, Jr., City Solicitor, for defendants.
This is a proceeding for declaratory relief and for mandamus to compel the Cranston Building Inspector to issue building permits for two multifamily dwellings. The plaintiffs' applications for those permits were rejected, not because they did not meet the requirements of then-existing zoning ordinances, but because an interim ordinance imposed a moratorium on the issuance of such permits. This case was then commenced. The interim ordinance in due course expired, but not before the applicable zoning ordinances were made more rigorous by amendments which took effect before this case was heard in the Superior Court. There, a justice sitting without a jury found (1) that the city council lacked authority to enact the moratorium ordinance and (2) that the controlling zoning ordinances were those operative when the applications were presented to the building inspector, rather than when the case was heard. Accordingly, he ordered the building inspector to issue the permits. The defendants appealed.
We do not pass judgment on whether prayers for mandamus and declaratory relief may properly be joined. See Shipyard Drive-In-Theatre, Inc. v. Scuncio, 107 R.I. 554, 268 A.2d 820 (1970).
It now appears that while the case was pending in this court on appeal, title in the subject real estate was conveyed to a third party who has intervened in this appeal. Mansolillo v. Taft, 112 R.I. 926-27, 311 A.2d 53 (1973). That party has since commenced construction under permits applied for and granted under the amended ordinance. By reason thereof, entitlement to the permits applied for under the preamendment ordinances has ceased to be a justiciable question and does not merit our consideration. Anderson v. Kirshenbaum, 109 R.I. 233, 283 A.2d 676 (1971); Johnson Wholesale Perfume Co. v. Blumen, 63 R.I. 485, 489, 9 A.2d 857, 859 (1939).
Relief in any event being denied, it is unnecessary for us to consider whether our order granting intervention on appeal was improvidently granted. See 3B Moore, Federal Practice ¶ 24.13[1] at 24-258 n. 19 (2d ed. 1974).
There remains for consideration Winsor Realty Co.'s motion to intervene, which was granted by us after the case was docketed in this court. Mansolillo v. Taft, 112 R.I. 902-03, 307 A.2d 542 (1973). Our action was premised upon Winsor's representation that the Cranston building inspector had denied its application for a building permit to erect a multifamily dwelling for the same reasons that prompted the inspector's rejection of the plaintiffs' applications. It now appears that our order authorizing that intervention was improvidently granted and must be rescinded. This is so, because Winsor's only interest in this case was the possible adverse stare decisis effect of any judgment on the merits that might be entered herein. On the view we take of this case, the protection of that interest, rather than requiring intervention, merited at most only permission to participate in the proceedings by the filing of an amicus curiae brief. See State ex rel. Montaquila v. Avery, 90 R.I. 305, 157 A.2d 886 (1960). We have considered the intervenor's brief in that light.
The defendants' appeal is sustained, the judgment appealed from is reversed pro forma, and the case is remitted to the Superior Court for further proceedings.
Mr. Justice Paolino did not participate.