Cecilia Cigarrilha v. City of Providence
State Court (Atlantic Reporter)5/15/2013
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Full Opinion
Supreme Court
No. 2012-9-Appeal.
(PC 08-3279)
Cecilia Cigarrilha et al. :
v. :
City of Providence. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2012-9-Appeal.
(PC 08-3279)
Cecilia Cigarrilha et al. :
v. :
City of Providence. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. On appeal, the plaintiffs, Cecilia and Manuel
Cigarrilha, contend that the trial justice in the Superior Court erred in declining to declare that
their three-family rental property, which is located in an area of the city of Providence that is
zoned for no more than two-family dwelling units, was a pre-existing legal nonconforming use.
This case came before the Supreme Court pursuant to an order directing the parties to appear and
show cause why the issues raised in this appeal should not be summarily decided. After a close
review of the record and careful consideration of the parties’ arguments (both written and oral),
we are satisfied that cause has not been shown and that this appeal may be decided at this time.
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
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I
Facts and Travel
It is undisputed that plaintiffs own real estate located at 24–26 Farragut Avenue in
Providence (the property) and that they have owned the property jointly since 2000.1 The parties
agree that the subject dwelling units at 24–26 Farragut Avenue were constructed in
approximately 1911—several years prior to 1923, the year in which Providence adopted its first
zoning ordinance. Pursuant to the terms of the 1923 zoning ordinance, any uses established prior
to the enactment of that ordinance were deemed to be grandfathered unless abandoned. Neither
party disputes the fact that the property owned by plaintiffs is currently situated in a Residential
R-2 zone, which zone is defined by the current zoning ordinance as being one ―intended for low
density residential areas comprising single-family dwelling units and two-family dwelling units
in detached structures located on lots with a minimum land area of five thousand (5,000) square
feet.‖ See Providence Code of Ordinances, Part II, ch. 27, art. I, sec. 101.
In 2008, plaintiffs sought permits from the city so that they might restore electrical
meters at the Farragut Avenue property. Before issuing the requested permits, the city conducted
an inspection of the property, during which plaintiffs were found to be in violation of several
provisions of the city’s housing code and Rhode Island’s building code. Most pertinently, the
inspection revealed that the property was being used as a three-family dwelling and that,
therefore, it was not in compliance with the above-quoted provision of the zoning ordinance.
The city maintains that the area in which the property is located is zoned for single- and two-
1
In fact, Cecilia Cigarrilha has been an owner of the property since 1985, having at that
time acquired joint ownership with her former husband as tenants by the entirety.
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family residences, and it contests plaintiffs’ contention that they should benefit from the
grandfathering provision.
On May 1, 2008, plaintiffs commenced this action in the Superior Court for Providence
County by filing a verified complaint as well as a motion for a temporary restraining order. In
that motion, plaintiffs sought to enjoin the city from enforcing the city’s codes based upon the
above-referenced violations; in addition, they sought to compel the city’s building official to
issue all permits necessary with respect to restoring the electrical meters. After a hearing on the
motion for a temporary restraining order, a motion justice of the Superior Court ordered that the
city issue building permits that would allow plaintiffs to restore electricity to the property (with a
proviso that the basement of the property was not to be used ―for habitable occupancy‖). The
motion justice also made it clear that her order was temporary and that its purpose was ―to
restore the property to the status quo‖ until an administrative hearing could be held before the
city’s zoning board on the issue of what plaintiffs contended was the legal nonconforming use of
the property.
Following the May 1, 2008 hearing in the Superior Court, plaintiffs filed with the city’s
zoning board an appeal of the city official’s determination that their property was an illegal
three-family dwelling. After a hearing on July 22, the zoning board affirmed the city official’s
determination that using the property as a three-family dwelling was illegal.
Thereafter, plaintiffs filed an amended verified complaint in their pending Superior Court
action, in which they appealed the zoning board’s decision and sought a declaration that their use
of the property as a three-family dwelling was a legal nonconforming use. In due course, a
nonjury trial took place, during which the parties submitted an agreed statement of facts and a
number of exhibits. The exhibits included, inter alia, a fire inspection record from 1940, which
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record indicated that the property was then being occupied in a two-family manner, and certain
tax assessment records from the 1940s, which records indicated that the property had been taxed
as a three-family dwelling. The parties agree that that manner of taxing the property has
continued since that time.
Thereafter, the trial justice issued a written decision, in which he found that plaintiffs had
failed to meet their burden of proving that the property was used as a three-family dwelling prior
to the enactment of the city’s first zoning ordinance in 1923. He therefore declined to declare
that the property constituted a legal nonconforming use. The trial justice also ruled that plaintiffs
had failed to establish that either equitable estoppel or the equitable doctrine of laches precluded
the city from enforcing its zoning ordinance.
The plaintiffs filed a timely notice of appeal. They assert three arguments on appeal: (1)
that the trial justice erred in concluding that the property was not a nonconforming use; (2) that
the trial justice erred in concluding that tax assessments had no bearing on the issue of
nonconforming use and did not provide a basis for holding the city to be equitably estopped; and
(3) that the trial justice erred in declining to allow plaintiffs to rely upon the doctrine of laches as
a basis for ruling that the city should not be permitted to enforce the provision of the zoning
ordinance that prohibits using the property in a three-family manner.
II
Standard of Review
In an action for declaratory relief, a justice of the Superior Court has ―discretion to grant
or deny declaratory relief under the Uniform Declaratory Judgments Act * * *.‖ Town of
Barrington v. Williams, 972 A.2d 603, 608 (R.I. 1999); see also G.L. 1956 § 9-30-1 (―The
superior * * * court upon petition * * * shall have power to declare rights, status, and other legal
-4-
relations whether or not further relief is or could be claimed.‖). The trial justice’s denial of a
request for declaratory judgment will be sustained absent an abuse of discretion or clear error.
See Town of Richmond v. Rhode Island Department of Environmental Management, 941 A.2d
151, 155 (R.I. 2008). Accordingly, this Court reviews a decision by a trial justice in a
declaratory judgment action in order ―to determine whether the court abused its discretion,
misinterpreted the applicable law, overlooked material facts, or otherwise exceeded its
authority.‖ Id. (internal quotation marks omitted). We are also guided by the principle that this
Court affords the ―[f]actual findings of a trial justice in a nonjury case * * * great weight and will
not * * * disturb[] [them] on appeal unless they are clearly wrong or unless the trial justice has
overlooked or misconceived material evidence.‖ Cullen v. Tarini, 15 A.3d 968, 977 (R.I. 2011)
(internal quotation marks omitted).
III
Analysis
A
The Merits of the Nonconforming Use Contention
We have previously noted that a ―nonconforming use is a particular use of property that
does not conform to the zoning restrictions applicable to that property but which use is protected
because it existed lawfully before the effective date of the enactment of the zoning restrictions
and has continued unabated since then.‖ RICO Corp. v. Town of Exeter, 787 A.2d 1136, 1144
(R.I. 2001). It is axiomatic that the ―burden of proving a nonconforming use is upon the person
or corporation asserting the nonconforming use‖; it is also a basic principle that that ―burden
cannot be sustained by hearsay or unsworn testimony or when the evidence of such alleged prior
use is contradictory.‖ See id. The proponent of a nonconforming use must shoulder that burden
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because the law views nonconforming uses as ―thorn[s] in the side of proper zoning [which]
should not be perpetuated any longer than necessary.‖ Duffy v. Milder, 896 A.2d 27, 37 (R.I.
2006). Indeed, in Duffy, we bluntly stated that ―[t]he policy of zoning is to abolish
nonconforming uses as speedily as justice will permit.‖ Id. (internal quotation marks omitted).
The plaintiffs contend that the trial justice erred when he declined to sufficiently consider
the tax assessment records because of his view that they constituted inadmissible hearsay. In
order to succeed in having their property declared a legal nonconforming use, plaintiffs were
required to prove that the Farragut Avenue property was used as a three-family dwelling at the
time of the enactment of the zoning ordinance in 1923. See RICO Corp., 787 A.2d at 1144. We
note that all evidence in the record, including the tax assessment records, postdate 1923. Bearing
in mind the previously described burden of proof that the law imposes upon plaintiffs, it is our
view that we need not address plaintiffs’ above-referenced contention because the evidence of
any use of the property after 1923 is irrelevant to the determination of legal nonconforming use.
As the trial justice correctly noted, the record is silent as to the use of the property in 1923;
accordingly, we perceive no error in the trial justice’s conclusion that plaintiffs failed to sustain
their burden of proof. Therefore, in our view, the trial justice did not abuse his discretion in
declining to declare that plaintiffs’ property was a legal nonconforming use, nor did he
misinterpret the applicable law, overlook facts, or otherwise exceed his authority. See Town of
Richmond, 941 A.2d at 155.
B
The Equitable Estoppel Contention
In an effort to win judicial approval of the use of their property as a three-family home,
plaintiffs contend that the trial justice, by not properly considering certain tax assessment records
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concerning the property, erred in not allowing the doctrine of equitable estoppel to preclude the
city from enforcing its codes. The plaintiffs argue that the city has benefited from taxing the
property as a three-family dwelling ―for an excess of seven decades.‖ The city, in response,
points out that plaintiffs have benefited from the rental income on what it refers to as the ―illegal
third unit.‖
This Court has clearly indicated what must be present for equitable estoppel to be
potentially applicable:
―The indispensable elements of an estoppel are, first, an
affirmative representation or equivalent conduct on the part of the
person against whom the estoppel is claimed which is directed to
another for the purpose of inducing the other to act or fail to act in
reliance thereon; and secondly, that such representation or conduct
in fact did induce the other to act or fail to act to his injury.‖
Lichtenstein v. Parness, 81 R.I. 135, 138, 99 A.2d 3, 5 (1953); see
also Providence Teachers Union v. Providence School Board, 689
A.2d 388, 391–92 (R.I. 1997) (citing Lichtenstein, 81 R.I. at 138,
99 A.2d at 5).
We agree with the trial justice that there is no evidence in the record that the city acted or made
any representation which induced plaintiffs to act. Although plaintiffs pointed to tax assessments
from the 1940s, they did not supply the trial justice with any conduct on behalf of the city that
would lead to reliance that injured them. Moreover, simple reliance on taxes assessed (which
taxes the parties agree are assessed based upon actual use) does not result in the equities being
balanced in plaintiffs’ favor. The plaintiffs benefited from additional rental income, thus
negating the injury requirement of equitable estoppel.2 See Providence Teachers Union, 689
2
We note that, having determined that there is no evidence in the record that the city
committed any act which induced plaintiffs to act to their detriment, we need not and therefore
do not reach the issue of whether or not the doctrine of equitable estoppel would be appropriate
in this case.
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A.2d at 391–92. After a careful review of the record before the trial justice, we perceive no basis
for holding that he erred in declining to apply the doctrine of equitable estoppel against the city.
C
The Laches Contention
Finally, plaintiffs contend that the equitable doctrine of laches should be applied so as to
shield them from the city’s efforts at enforcement of its ordinances.3 We have noted that
―[l]aches is an equitable defense that precludes a lawsuit by a plaintiff who has negligently sat on
his or her rights to the detriment of a defendant.‖ O’Reilly v. Town of Glocester, 621 A.2d 697,
702 (R.I. 1993). In order to pass upon the applicability (vel non) of the doctrine of laches in a
particular case, the court looks to two considerations: (1) whether there has been negligence that
has led to ―a delay in the prosecution of the case‖; and (2) whether that delay has prejudiced the
adverse party. See School Committee of Cranston v. Bergin-Andrews, 984 A.2d 629, 644 (R.I.
2009) (internal quotation marks omitted). It is also well established that ―the applicability of the
defense of laches in a given case generally rests within the sound discretion of the trial justice.‖
Hazard v. East Hills, Inc., 45 A.3d 1262, 1270 (R.I. 2012). For that reason, we ―will not reverse
the trial justice’s decision on what constitutes laches on appeal unless it is clearly wrong.‖ Id.
(internal quotation marks omitted).
The trial justice in the instant case specifically found that the city had not ―acted
negligently‖ due to the fact that the city took the appropriate steps against the property in taxing
3
The plaintiffs have articulated their argument concerning laches as follows:
―In this particular instance the City sat on its rights, if it had any,
for over 70 years. To hold [plaintiffs] responsible to try to prove
something that occurred more than 70 years ago while the City
refused to enforce its own rights, whatever they might be, demands
the use of the concept of laches.‖
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its actual use and in promptly enforcing its codes once it learned of the violations. He further
stated that, even if he believed that the city had acted negligently, he would ―not use laches to
sanction an illegally established nonconforming use in contravention of the Zoning Ordinance.‖
In our view, the trial justice was not ―clearly wrong,‖ see id., especially given our clear
adherence to the principle that nonconforming uses ―should not be perpetuated any longer than
necessary‖ and that they should be ―abolish[ed] * * * as speedily as justice will permit.‖ See
RICO Corp., 787 A.2d at 1145.
IV
Conclusion
For the reasons set forth in this opinion, the judgment of the Superior Court is affirmed.
The record in this case may be remanded to that tribunal.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Cecilia Cigarrilha et al. v. City of Providence.
CASE NO: No. 2012-9-Appeal.
(PC 08-3279)
COURT: Supreme Court
DATE OPINION FILED: May 15, 2013
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice William P. Robinson
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Bennett R. Gallo
ATTORNEYS ON APPEAL:
For Plaintiffs: Daniel R. Sumner, Esq.
For Defendant: Michael A. Calise, Esq.