Agenda - Planning Commission - 09/05/2013

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July 10, 2013 I Volume 7 I Issue 13 Zoning Bulletin The Background/Facts: Cecilia and Manuel Cigarrilha (the "Cigar- rilhas") owned real property (the "Property") in Providence, Rhode Island (the "City"). The dwelling units at the Property were constructed in 1911. In 1923, the City adopted its first zoning ordinance. Under the zoning ordinance, any uses established prior to the enactment of that ordinance were deemed to be grandfathered unless abandoned. Pursuant to the City zoning ordinance, the Cigarrilhas' Property was zoned Residential R-2. That zone allowed for single-family dwelling units and two-family dwelling units. In 2008, the City discovered that the Cigarrilhas' Property was being used as a three-family dwelling, and therefore was not in compliance with the ordinance. The Cigarrilhas maintained that their Property was grandfathered as a legal nonconfoiuiing use. The Cigarrilhas appealed to the City's zoning board of appeal (the "Board"). The Board also determined that using the Property as a three-family dwelling was illegal. The Cigarrilhas brought a legal action, appealing the Board's decision. They asked the court to declare that their use of the Property as a three- family dwelling was a legal nonconforming use. In support of their argu- ments, the Cigarrilhas presented tax assessment records from the 1940s through the present. The Property had been taxed as a three-family dwelling. The Cigarrilhas argued that the doctrines of equitable estoppel and/or laches precluded the City from enforcing its codes. The trial justice found that the Cigarrilhas 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. It also ruled that the Cigarrilhas had failed to establish that either equitable estoppel or the equitable doctrine of laches precluded that City from enforcing its zoning ordinance. Cigarrilhas appealed. DECISION: Affirmed. The Supreme Court of Rhode Island also held that the Cigarrilhas had failed to prove that the property was in use as a three-family residence before the enactment of the ordinance in 1923. The court found that all evidence in the record, including the tax assessment records, postdated 1923—the year the ordinance was enacted. Accordingly, the court concluded that the Property did not qualify for legal nonconforming use. The Cigarrilhas had argued that because the City had benefited from taxing the Property as a three-family dwelling "for an excess of seven decades," the doctrine of equitable estoppel applied, precluding enforce- ment of the zoning laws. The court explained that for equitable estoppel to be potentially ap- plicable, the Cigarrilhas had to show: (1) an affirmative representation or equivalent conduct on the part of the City which was directed to the 6 © 2013 Thomson Reuters