Kilduff Bros. Builders v. Town Council of the Johnston

OPINION PER CURIAM. This is a zoning controversy which arises because the Johnston Town Council denied the application of Kilduff Brothers Builders, Inc. (Kilduff) to amend the town’s zoning ordinance so that Kilduff could build on a 3.8-acre parcel four town houses. Each town house was to contain four dwelling units. The denial was appealed to the Superior Court, where the trial justice, relying upon the provisions of G.L.1956 (1980 Reenactment) § 45-24-20, “reversed” the council’s decision and ordered “the Board” to “grant” Kilduff’s petition. The town then filed a petition for common-law certiorari, and on June 25, 1982, counsel for Kilduff appeared before a panel of this court in compliance with an order to show cause why the Superior Court judgment should not be quashed. At oral argument it was conceded that the trial justice erred in relying on § 45-24-20 because that section governs the Superior Court’s review of appeals from decisions made by the various municipal zoning boards rather than the legislative acts of a town or city council. The petition for certiorari is granted, the judgment of the Superior Court is quashed, and the case is remanded to the Superior Court where the litigants should be prepared to enlighten the trial justice as to whether the court’s equitable powers should be invoked in an instance where a municipal legislature, in the exercise of its legislative prerogative, has decided not to amend the town’s zoning ordinance. MURRAY and SHEA, JJ., did not participate.