Martel Investment Group, LLC (Martel) appealed from a Superior Court decision granting summary judgment in favor of the defendant, Town of Richmond (town). Martel brought suit against the town, contending that the town should be equitably estopped from enforcing an amended zoning ordinance that prohibited Martel from operating an “adult entertainment business.” Shortly after Martel purchased a parcel of land, formerly the site of a Bickford’s restaurant, the town issued it a building permit that allowed it to begin renovations on the building. Subsequent investigation by the building official revealed that Martel had not submitted to development-plan review under § 18.54.010.D.2 of the Town of Richmond Zoning Ordinance. The building official notified Martel that it was required to apply for development- plan review, but Martel delayed seeking development-plan review, and in the interim the town’s zoning ordinance was amended to prohibit “adult entertainment businesses.”
After hearing arguments of counsel, the hearing justice entered summary judgment in favor of the Town. The court primarily relied on this Court’s opinion in Town of Johnston v. Pezza, 723 A.2d 278, 283 (R.I. 1999), in which the Supreme Court held that the doctrine of equitable estoppel does not apply to instances in which a building official acts outside the authority vested in the official by the zoning ordinance. On appeal, Martel argued that the hearing justice erred in declining to find that the town was estopped from enforcing its zoning ordinances. The Supreme Court disagreed. It held that this case was governed by its earlier holding in Pezza and declined to disturb the hearing justice’s decision. The Court reiterated that a building-permit applicant is responsible for ensuring that his or her application conforms to the relevant zoning ordinances. Because a building official may not act beyond the authority granted to him or her by law, the building official’s issuance of a building permit without the required development-plan review was ultra vires such that the doctrine of equitable estoppel did not apply. Accordingly, the judgment of the Superior Court was affirmed.
Martel Investment Group v. Town of Richmond, 982 A.2d 595 (RI 11/9/2009).
The opinion can be accessed at: http://www.courts.ri.gov/supreme/pdf-files/08-152.pdf
Adult entertainment in industrial zones can be disruptive. In Boulder CO there was in 1982 a strip club near an industrial park. The industrial park had a lot of small units. A young female circuit board designer rented a space. She frequently worked in the evenings as her customers always wanted fast turnaround. A “lap dance” club moved in next door. The police claimed to be unable to shut down the lap dance club. The lap dance club kept a bright light on to attract men leaving the strip club. They would wonder down to the industrial park and start rapping on my friend’s window. She was so scared she had to move her business. I had been considering renting a small space there and so also lost an opportunity.
I lived in Boston MA too. There they had an “adult entertainment district”. One time I was walking from Government Center to Copley Square. It was only about 7 p.m. and should have been safe. I was dressed conservatively. A man in a car followed me for about three blocks asking repeatedly for me to come with him. It really scared me and I never walked home after dark again. Which meant that I didn’t work late as often.
A case sort of similar to Martel, but not involving adult entertainment, happened in Steamboat Springs CO. It involved David Criste. He was a chiropractor and he had a downtown office in a converted small residence. Apparently he thought it made good financial sense for him to build a second floor residence over his office so if someone wanted to pay for evening therapy he could just run downstairs. That all conformed with the zoning.
He hired a licensed civil engineer to design the second floor addition and, after getting approval from the building department, commenced construction. I studied architecture at MIT undergraduate and I took a core course in architectural design. One point they made is that usually when building codes are designed they figure out what is supposed to be strong enough and then they multiple by three as a safety factor. In this case, when the construction was halfway through they realized that the existing structure wasn’t as strong as they thought. Of course, the chiropractor was not deep pockets either. So the builder apparently developed the plan of supporting the second floor with I-Beams placed exterior to the original first floor structure. They protruded into the side set back by 18 inches.
The City of Steamboat Springs absolutely refused to give him a hardship variance unless, as I heard the story, he paid $10,000 to various parties including a city council member. Then they wouldn’t give him an occupancy permit. So for years he had the costs of construction and still had to live somewhere else. He sued in federal court but apparently never got an evidentiary hearing. Eventually he did get an occupancy permit. The building department forms were changed to include an express statement that the applicant accepts responsibility for conforming with development ordinances.
By: kay sieverding on January 7, 2010
at 12:46 pm