Opinion
C.A. PC-1991-5374 PC-1999-1811
12-12-2023
POUND HILL REALTY, LLC Plaintiff, v. TOWN OF NORTH SMITHFIELD Defendant.
For Plaintiff: Thomas C. Plunkett, Esq. Thomas J. McAndrew, Esq. For Defendant: Timothy J. Robenhymer, Esq., Louis V. Jackvony, III, Esq., David V. Igliozzi, Esq.
For Plaintiff: Thomas C. Plunkett, Esq. Thomas J. McAndrew, Esq.
For Defendant: Timothy J. Robenhymer, Esq., Louis V. Jackvony, III, Esq., David V. Igliozzi, Esq.
DECISION
PROCACCINI, J.
Before this Court is Pound Hill Realty, LLC's (Plaintiff) Motion for for Partial Summary Judgment requesting declaratory judgments estopping the Town of North Smithfield (the Town) from enforcing the Town's Zoning, Earth Removal, and Road Use Ordinances against Plaintiff's quarrying activities and trucks used to transport materials. This Court also decides the Town's Cross-Motion for Summary Judgment requesting the ability to require road use permits from Plaintiff, review and rule on Plaintiff's quarrying activities, and dismiss both the 1991 and 1999 Complaints. Jurisdiction is pursuant to Rule 56 of the Superior Court Rules of Civil Procedure.
Plaintiff company changed names throughout the years: C. Pezza and Son, Inc.; Material Sand & Stone Corporation; and Granite Realty Company. See Pls.' Mot. to Substitute. Actions have been brought under different iterations of the company, as well as various members of the Pezza family as owners of the company. See Docket. In 2012, Plaintiffs Leonard and Constance Pezza transferred their ownership interest in the property subject to litigation to Pound Hill Realty, LLC for estate planning purposes. (Pls.' Mot. to Substitute at 2.) Constance Pezza died in 2016. Id. at 1. Plaintiffs filed a Motion to Substitute on June 14, 2023. Id. at 3. This Court granted Plaintiffs' Motion to Substitute on July 21, 2023, where Plaintiffs Granite Realty Company, Leonard Pezza, and Constance Pezza were substituted for Pound Hill Realty, LLC. (Order, July 21, 2023, Procaccini, J.)
I
Facts and Travel
This case arises from various interactions in the 1990s and early 2000s between a sand and gravel supply company and the town where it operates, including several cease-and-desist letters, two litigative actions, and multiple Court Orders. After two decades of relative peace between the parties, this issue is once again before the Court to decide whether it should maintain the status quo by upholding previous Court Orders or remove judicial restrictions and allow the Town to enforce its Road Use and Land Use ordinances.
A. Early Years of Pound Hill Realty, LLC
In 1958, Carmine and Emma Pezza purchased two parcels of land: Plat 7, Lot 38 and Plat 10, Lot 1. (Pl.'s Mem. Supp. of Mot. for Partial Summ. J. (Pl.'s Mem.) Ex. A.) Carmine Pezza petitioned to change the zoning of both lots from residential to business and the Town Council approved. Id. After receiving approval, the Pezzas began quarrying on both lots, excavating materials like sand, gravel, and rock. Id. Carmine and Emma Pezza conveyed the property to the family business, C. Pezza and Son, Inc., in 1974. Id.
In 1979, the Town adopted an Earth Removal Ordinance. North Smithfield, R.I., Ordinances ch. 11, art. 4, § 33-44 (1979). The Earth Removal Ordinance established a system for permitting and approval of soil and earth removal operations, but per § 11-41, this section did not apply to pre-existing earth removal conducted on or before the date of enactment. Id. at § 11-41. In 1987, Leonard and Constance Pezza acquired another plot of land adjacent to their operations: Plat 7, Lot 4. (Pl.'s Mem. Ex. A (Pezza Aff. ¶ 9, Ex. 2).) The new lot was located in a residential area and zoned for residential uses. (Def.'s Mem. in Supp. of Mot. for Partial Summ. J. and Def's Cross Mot. for Summ. J. (Def.'s Mem.) Ex. X.) The Pezzas did not apply for an earth removal permit, zoning change, or use variance for the new lot. Id. at 10-11, Ex. Z, Ex. AA. However, Plaintiff began blasting and excavating the new lot once it was purchased in 1987. (Pezza Aff. ¶ 11.) The Town merged the three lots into one lot for tax purposes: Plat 7, Lot 38. Id. ¶ 10, Ex. 3.
Leonard Pezza is Carmine Pezza's son. (Pl.'s Mem. at 2.)
In 1990, the Town required Plaintiff to apply for a road use permit for their truck operations on Pine Hill Road and Pound Hill Road. (Pezza Aff. ¶ 12, Ex. 4.) Under Road Use Ordinances §§ 15-9 and 15-10, trucks or commercial vehicles weighing over 35,000 pounds and operating on certain roads (including Pound Hill and Pine Hill Road) are required to obtain a road use permit from the Town. North Smithfield, R.I., Ordinances ch. 15, art. 4, § 9-10 (1990). The Town granted the permit on June 4, 1990 with certain restrictions: "(1) Not to exceed 20 loads per day of Earth, Material, and Stone; (2) Limited from 8 a.m. to 5 p.m. Monday through Friday; (3) Vehicles to be used on attached list; and (4) Shall avoid use of Pine Hill Road and Pound Hill Road during bus runs." (Def.'s Mem. Ex. D.) The permit expired on December 31, 1990. Id. At a Town Council meeting on July 15, 1991, additional restrictions were approved for the road use permit requiring Plaintiff to post a flagger. (Pezza Aff. ¶ 13.)
B. 1991 Road Use Litigation
In response to the Town's additional road use restriction of posting a flagger, Plaintiff filed a Complaint against the Town on August 2, 1991 seeking declaratory and injunctive relief. See Material Sand & Stone Corporation and C. Pezza & Son, Inc. v. Town of North Smithfield, C. A. No. PC-1991-5374 ("1991 Case"); Def.'s Mem. Ex. A.; Pezza Aff. ¶ 14, Ex. 5. Plaintiff filed an Amended Complaint on September 9, 1991. (Def.'s Mem. Ex. F.) The Town did not file an answer to either the Complaint or the Amended Complaint. (Def.'s Mem. at 2.) On August 2, 1991, the Court granted a Temporary Restraining Order (1991 TRO) for Plaintiff, enjoining the Town from enforcing conditions that were not within the terms of the operating permit-namely, the use of a flagger. Id. at Ex. C (Temporary Restraining Order, August 2, 1991, Needham, J.) The 1991 TRO remained in place and no further actions were taken by either party regarding the case. (Pl.'s Mem. at 4, Pezza Aff. ¶ 15; Def.'s Mem. at 3.)
C. Interactions Between Plaintiff and Town, 1991-1999
In 1991, Plaintiff obtained permission to use private roads as an alternative to access their property. (Pezza Aff. ¶ 16.) Plaintiff continued to use private roads through the 1990s and did not apply for further road use permits. Id. Although Plaintiff used Pine Hill Road and Pound Hill Road less frequently, it continued to pay and post bonds for road repairs. Id. On November 13, 1998, the Town's Building and Zoning Chief Inspector, Robert Benoit, sent a cease-and-desist letter to Plaintiff regarding the quarrying activities on original lots Plat 7, Lot 38 and Plat 10, Lot 1. Id. ¶ 17, Ex. 7.
After sending the letter, Chief Inspector Benoit visited the property and asked about delineating the boundary line of original plot Plat 7, Lot 4. Id. ¶ 18. Plaintiff informed him that the boundary lines of each plot could not be delineated because of the continuous excavating activities since its purchase of the adjoining property in 1987. Id. Plaintiff provided employee affidavits to Chief Inspector Benoit showing its excavation activities dated back to the 1950s and qualified as a pre-existing, non-conforming use. Id. ¶ 19, Ex. 8. On December 3, 1998, Chief Inspector Benoit rescinded the cease-and-desist order after reviewing the documents submitted by Plaintiff. Id. ¶ 20, Ex. 9.
D. 1999 Land Use Litigation
1. Complaint in Response to First Cease-and-Desist Letter
After the visit from Chief Inspector Benoit, Plaintiff filed a new Complaint against the Town on April 8, 1999. See Granite Realty Company v. Town of North Smithfield, C. A. No. PC-1999-1811 ("1999 Case"); Pl.'s Mem. Ex. M; Def.'s Mem. Ex. E. Plaintiff sought declaratory relief enjoining the Town from prohibiting excavating activities on its property. (Pezza Aff. Ex. 10.) Plaintiff argued it proved through documentation that all its excavating activities were legal non-conforming uses and the Town could not interfere with operations. Id. The Town did not respond to the Complaint. (Pl.'s Mem. at 8; Def.'s Mem. at 4.)
2. Merging with 1991 Road Use Case
While the 1999 Case developed, Plaintiff's private road use ended. (Pl.'s Mem. at 4; Pezza Aff. Ex. 11.) On October 9, 2001, Plaintiff amended the Complaint from the 1991 Case to request injunctive and declaratory relief on prior road restrictions. (Pl.'s Mem. Ex. E.) Plaintiff filed for a temporary restraining order in both cases on October 18, 2001. (Def.'s Mem. Ex. G.) On November 9, 2001, Plaintiff amended the Complaint from the 1999 Case and added the road use restriction issue alongside the land use issue, again requesting injunctive and declaratory relief. (Pl.'s Mem. Ex. F; Pezza Aff ¶ 23, Exs. 12, 13.) The Town responded to the Amended Complaint for the 1999 Case on November 19, 2001. (Def.'s Mem. Ex. K.)
The cases, PC-1991-5374 and PC-1999-1811, were never formally consolidated. (Def.'s Mem. at 4.) During 2001, Plaintiff began filing motions with both cases referenced in the case caption. Id. Plaintiff still filed some documents (such as Amended Complaints) during this time that were addressed as pertaining to only one case or the other, but documents submitted after 2001 are filed as if the cases were consolidated. See Docket.
Plaintiff also applied for a new road use permit in 2001. (Pezza Aff. ¶ 22.) According to Robert Pezza, the permit application was set to be approved at a Town Council meeting on November 19, 2001, but on the day of the meeting the Town Clerk informed him it would not be heard until new Town Council members took office in December. Id. at Ex. 11. Fearing the lack of a road use permit would cause a threat to business, Plaintiff again requested a temporary restraining order in both cases on November 21, 2001. (Pezza Aff. ¶ 23; Def.'s Mem. Ex. L.)
The Court granted injunctive relief for Plaintiff on November 21, 2001 and entered an Order allowing Plaintiff to use the requested roads with certain restrictions. (Order, Nov. 21, 2001, Fortunato, J.) ("Road Use Order"). The Road Use Order required Plaintiff to: (1) post a bond with the Town at the amount set in 1991; (2) use roadways only between 7 a.m. and 5 p.m.; (3) not travel on roadways five minutes before or after scheduled pick-up or drop-off times for school buses; and (4) adjust truck traffic for school bus delays that may occur with inclement weather. (Pl.'s Mem. Ex. G.) The Road Use Order also instructed the Town to produce school bus stop schedules for Plaintiff. Id. A hearing was scheduled for December 14, 2001 to review Plaintiff's motion for injunctive relief further, but the hearing date passed without input from either party. Id.; Pl.'s Mem. at 5.
3. Motions in Response to Second Cease-and-Desist Letter
The case lay dormant over the next three years, until Chief Inspector Benoit issued a second cease-and-desist letter to Plaintiffs on November 1, 2004. (Pl.'s Mem. Ex. N.) The second letter stated that Plaintiff's excavating and blasting on Plat 7, Lot 4 was an enlargement of a pre-existing, non-conforming use. Id. Plaintiff filed for a temporary restraining order on December 21, 2004 to enjoin the Town from enforcing the second cease-and-desist letter. (Def.'s Mem. Ex. O.) Plaintiff also appealed the letter to the Town's Zoning Board. (Pezza Aff. ¶ 30.) On December 30, 2004, the Court heard Plaintiff's motion for a temporary restraining order. Id. at Ex. 18. The Court ordered that the status quo remain in effect and restrained any administrative hearings on the matter, reassigning the case for a hearing on January 21, 2005. Id; Order, Dec. 30, 2004, Procaccini, J.
According to Plaintiff, after the 2004 restraining order, the parties maintained the status quo and jointly continued court hearings throughout 2005. (Pl.'s Mem. at 9.) The Zoning Board scheduled a hearing for January 25, 2005 regarding Plaintiff's appeal of the cease-and-desist letter. Id. The hearing was continued five times at the request of Plaintiff, and the Zoning Board sent a letter on October 22, 2006 informing Plaintiff the new hearing date would occur on November 8, 2006. (Pezza Aff. at Exs. 19, 20.)
There are no documents provided by parties indicating further Court actions during 2005. The Docket indicates a hearing passed on June 24, 2005 and that a hearing was continued by agreement on August 11, 2005.
On November 2, 2006, Plaintiff filed a motion to submit a second amended complaint and another motion titled "Motion to Reassign for Hearing Plaintiffs' Motion to Amend and Motion for Temporary Restraining Order and Plaintiffs' Further Motion for Stay." (Def.'s Mem. Exs. Q, R.) On the same day, the Court granted Plaintiff's Motion for a Stay on the second cease-and-desist letter, extending the previous stay granted in 2004. (Order, Nov. 2, 2006, Procaccini, J.; Def.'s Mem. Ex. S.) The Court ordered the Zoning Board hearing regarding the cease-and-desist letter to be stayed pending an application from any party. Id. Neither party moved for further relief or review by the Court regarding the land use issue after the November 2, 2006 Order. (Pl.'s Mem. at 10; Def.'s Mem. at 6.)
E. Events Leading to Current Litigation
Since November 21, 2001, the Road Use Order has governed Plaintiff's road use and Plaintiff has not applied for any further road use permits from the Town. (Pl.'s Mem. at 10.) Plaintiff has continued to pay for road repairs and post bonds with the Town. (Pl.'s Mem. Ex. H.) The November 2, 2006 Order remained in place regarding Plaintiff's land use, and the Town has not taken any further action to prevent the excavating, blasting, and material removal activities on Plaintiff's property. (Pl.'s Mem. at 10; Def.'s Mem. at 6.)
In September 2022, two citizens that live near Plaintiff complained to the Town about Plaintiff's activities. (Pl.'s Mem. at 10.) One citizen, Jason Richer, wrote a letter to the Town voicing his complaints on September 2, 2022. Id. The Town's Building and Zoning Official, Lawrence Enright, responded in a letter stating that the "issues have been settled by court orders." Id. at Ex. Q. In response to the recent complaints from these two citizens, Plaintiff returned to this Court in an attempt to finalize prior Court Orders granting injunctive relief. (Pl.'s Mem. at 10.)
Both citizens were contacted about this litigation and declined to appear before the Court regarding their complaints.
On December 15, 2022, Plaintiff filed a Motion to Reinstate the 1991 Case; a Motion to Shorten Time; a Motion to Substitute; and a Motion for Entry of Judgment on the Pleadings, requesting a permanent injunction finalizing the two Orders previously issued in 2001 and 2006. See Docket. The Town objected to each of Plaintiff's motions on December 17, 2022 and filed its own Motion for View. Id. Plaintiff objected to the Motion for View on December 19, 2022. Id. On December 21, 2022, the Court granted the Town's Motion for View and continued the matter for a hearing on the pending motions. (Am. Order, Dec. 21, 2022, Procaccini, J.) Plaintiff filed a Second Amended Complaint on March 2, 2023, to which Defendant objected on the same day. See Docket.
The Court viewed the site in early January 2023.
On May 2, 2023, Plaintiff filed a Motion for Partial Summary Judgment requesting a declaration estopping the Town from enforcing sections of its Traffic/Road Use Ordinance, Zoning Ordinance, and Earth Removal Ordinance against Plaintiff. (Pl.'s Mem. at 1-2.) The Town filed its Objection to Plaintiff's Motion for Partial Summary Judgment along with its own Cross-Motion for Summary Judgment on June 28, 2023. See Docket. The Town filed a Memorandum arguing Plaintiff's Motion for Partial Summary Judgment should be denied because the Town's action or inaction did not rise to a level worthy of estoppel. (Def.'s Mem. at 16.) The Town argued its Cross-Motion for Summary Judgment should be granted because the two Court Orders resulted in the course of conduct between the parties for the past two decades, and the Town should no longer be precluded from a ruling on Plaintiff's 2001 road use permit or 2004 appeal of the second cease-and-desist letter. Id. at 17.
Oral argument occurred on July 21, 2023, and this Court granted the Motion to Reinstate PC-1991-5374 on July 28, 2023. There is no genuine issue of material fact remaining in this case; therefore, the issues presented will be decided as a matter of law.
II
Standard of Review
"Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously." Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446, 451 (R.I. 2013) (quoting DeMaio v. Ciccone, 59 A.3d 125, 129 (R.I. 2013)). Summary judgment applies when "'no genuine issue of material fact is evident from the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, and the motion justice finds that the moving party is entitled to prevail as a matter of law.'" Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 288 (R.I. 2012) (quoting Beacon Mutual Insurance Co. v. Spino Brothers, Inc., 11 A.3d 645, 648 (R.I. 2011)) (internal quotation omitted); see Super. R. Civ. P. 56.
When deciding a summary judgment motion, a court "views the evidence in the light most favorable to the nonmoving party." Mruk v. Mortgage Electronic Registration Systems Inc., 82 A.3d 527, 532 (R.I. 2013). The moving party "bears the initial burden of establishing the absence of a genuine issue of fact." McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (citation omitted). Once the moving party establishes there are no genuine issues of fact, the nonmoving party "bears the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions." Mruk, 82 A.3d at 532 (internal quotation omitted). Competent evidence generally includes "'depositions, answers to interrogatories, . . . admissions on file, . . . and affidavits[.]'" Flynn v. Nickerson Community Center, 177 A.3d 468, 476 (R.I. 2018) (quoting Leone v. Mortgage Electronic Registration Systems, 101 A.3d 869, 872 (R.I. 2014)).
III
Analysis
A. Equitable Estoppel Against Governmental Entities
An equitable estoppel claim requires a party "establish that the defendant made 'an affirmative representation . . . directed to him for the purpose of inducing him to act or fail to act in reliance thereon,' and that such representation 'did induce him to act or fail to act to his injury.'" Cahoon v. Shelton, 647 F.3d 18, 28 (1st Cir. 2011) (quoting Providence Teachers Union v. Providence School Board, 689 A.2d 388, 391-92 (R.I. 1997)) (brackets omitted). The Rhode Island Supreme Court has determined the key element of estoppel is "intentionally induced prejudicial reliance." El Marocco Club, Inc. v. Richardson, 746 A.2d 1228, 1234 (R.I. 2000) (internal quotation omitted).
"'Although it has been said that the doctrine of estoppel may not be applied against a municipality, this rule is not without exception. Estoppel can be applied to a municipal as well as a private corporation when appropriate circumstances, justice, and right so require.'" Fleet Construction Company, Inc. v. Town of North Smithfield, 713 A.2d 1241, 1244 (R.I. 1998) (quoting Town of Glocester v. Olivo's Mobile Home Court, Inc., 111 R.I. 120, 130, 300 A.2d 465, 471 (1973)). The "appropriate factual context" for estoppel against a public body exists when the public entity "made representations to cause the party seeking to invoke the doctrine either to act or refrain from acting in a particular manner to his detriment." Ferrelli v. Department of Employment Security, 106 R.I. 588, 594, 261 A.2d 906, 910 (1970).
Silence "'can be the basis for estoppel where there exists a duty not to remain silent as where the circumstances require one to speak lest such silence would reasonably mislead another to rely thereon to his detriment.'" Southex Exhibitions, Inc. v. Rhode Island Builders Association, Inc., 279 F.3d 94, 104 (1st Cir. 2002) (quoting Schiavulli v. School Committee of Town of North Providence, 114 R.I. 443, 450, 334 A.2d 416, 419 (1975)). However, equitable estoppel is "'extraordinary relief' which 'will not be applied unless the equities clearly are balanced in favor of the party seeking relief.'" Id. (quoting Greenwich Bay Yacht Basin Associates v. Brown, 537 A.2d 988, 991 (R.I. 1988) (brackets omitted)). The party asserting the equitable estoppel claim bears the ultimate burden of proof. Id.
Plaintiff argues the Town's acts warrant equitable estoppel because the Town has acquiesced to the Court Orders since 2006 and has not made any motion to challenge the Orders. (Pl.'s Mem. at 18-20.) Plaintiff states that the Town "completely understands" that the Court has resolved the issues at hand, and asserts a town employee, Mr. Enright, conceded to such a resolution in his 2022 letter. Id. at 21. Plaintiff also argues enforcement of the Town Ordinances against it would cause economic harm that would close its business, and, in contrast, the Town would not suffer any harm from continuing to operate under the Court Orders. Id. at 23-24. The Town argues the terms of the 2001 and 2006 Court Orders resulted in the actions or omissions by both parties over the last two decades. (Def.'s Mem. at 16.) The Town asserts they did not act regarding Plaintiff's continued road use and land use because of the Court Orders. Id. at 15.
Plaintiff has not met its burden of proving equitable estoppel in this case. Plaintiff has not proved the Town made any representations upon which Plaintiff could reasonably rely that induced Plaintiff to act to its detriment. West v. McDonald, 18 A.3d 526, 541 (R.I. 2011) (denying equitable estoppel claims against a city where the plaintiff claimed ordinances constituted representations); see also El Marocco Club, Inc., 746 A.2d 1228 (finding no equitable estoppel-even though plaintiff expended significant funds-where authorized representatives of the town did not make affirmative representations by word or deed).
Plaintiff also cannot establish it relied on the Town's silence because in cases where estoppel was granted, the silence stemmed directly from the actions of the public entity, not the Court. See Schiavulli, 114 R.I. 443, 334 A.2d 416 (applying estoppel where school superintendent promised teacher he would relay her request to school committee and failed to do so); see also Murphy v. Duffy, 46 R.I. 210, 124 A. 103 (1924) (applying estoppel where a contractor built an addition to the schoolhouse and the school committee attempted to avoid payment because it never authorized the addition). "[M]ere nonaction will not be sufficient to justify the application of estoppel" unless "there has been an outstanding exception to the nonaction principle." Schiavulli, 114 R.I. at 449, 334 A.2d at 419 (referring to the outstanding exception found in Murphy v. Duffy).
In one case, Loiselle v. City of East Providence, 116 R.I. 585, 359 A.2d 345 (1976), the plaintiff, employed as Treasurer of East Providence, argued that the city was silent for two years while he failed to comply with the role's requirement that he become a city resident within six months after starting employment. The Rhode Island Supreme Court found estoppel could not apply because the plaintiff made no efforts to resolve the problem until three days before he was slated to be fired. Loiselle, 116 R.I. at 592, 359 A.2d at 349. In the current case, Plaintiff did not attempt to finalize the Court Orders until citizens complained about its land use and road use over fifteen years after the last Court Order.
The record shows the Town objected to aspects of Plaintiff's land use and road use that did not follow Town Ordinances until it was enjoined through judicial intervention. (Def.'s Mem. Ex. G.) The Town opposed Plaintiff's land use through cease-and-desist letters and directly engaged with Plaintiff's road use through the permitting process prior to the 2001 Order. (Pl.'s Mem. Ex. N; Pezza Aff. ¶¶ 12, 17, Ex. 4, Ex. 7.) The Town was prevented from reviewing the 2001 road use permit and the 2004 cease-and-desist letter by multiple Court Orders in 2004 and 2006. Prior to the Court Orders, the Town certainly put Plaintiff on notice about its road use and land use violating Town Ordinances, and Plaintiff acquiesced to Court Orders alongside the Town for over sixteen years until its business was threatened by citizen complaints.
Viewing a public body's acquiescence to judicial rulings as silence or representations for the purposes of equitable estoppel could create a problematic precedent, allowing residents to claim estoppel wherever a town or other public entity complies with court orders or does not appeal an order within a certain time frame. Moreover, this Court disagrees with Plaintiff's claims that the Town would not be harmed by a grant of equitable estoppel against it. To the contrary, the Town would be harmed if this Court rendered it impossible for the Town to complete its administrative duties, review Plaintiffs compliance with its ordinances, or address interactions between Plaintiff and other town residents. This Court cannot usurp the administrative duties of a municipality or provide a blanket exclusion to select individuals or businesses from ordinances or the process of applying for variances. Equitable estoppel is not appropriate in this circumstance because it would result in permanent immunity from Town oversight for the Plaintiff regarding entire sections of the Town's ordinances.
The Town's Memorandum asked for three forms of relief: (1) an order allowing the Town to grant or deny Plaintiff's 2001 Road Use Permit; (2) an order allowing the Town to rule on the appeal of the November 1, 2004 Cease and Desist Order; and (3) dismissing the complaints filed in the 1991 Case and 1999 Case. (Def.'s Mem. at 17.) The Court grants Summary Judgment to the Town and does not apply equitable estoppel, allowing the Town to resume administrative duties requested in (1) and (2), and denying injunctive relief for Plaintiff. It is not necessary to address the third request and dismiss the complaints.
B. Administrative Remedies
"'The general rule is that a plaintiff first must exhaust his or her administrative remedies before seeking judicial review of an administrative decision.'" Eddy v. Pascoag Fire District, 266 A.3d 747, 752 (R.I. 2022) (quoting Almeida v. Plasters' and Cement Masons' Local 40 Pension Fund, 722 A.2d 257, 259 (R.I. 1998)) (brackets omitted). "Futility, however, is an exception to the requirement that a plaintiff obtain an agency's final decision before seeking judicial review." Davis v. Town of Exeter, 285 A.3d 15, 22 (R.I. 2022) (citing Cullen v. Town Council of Town of Lincoln, 850 A.2d 900, 906 (R.I. 2004)). "'[Futility may be established in special circumstances when a permit application is not a viable option or where the permitting authority has made it transparently clear that a permit application will not be granted.'" Gunvor USA, LLC v. State by and through Division of Taxation, 297 A.3d 131, 136 (R.I. 2023) (quoting Davis, 285 A.3d at 22)).
Plaintiff has not exhausted its administrative remedies before seeking judicial intervention from the Court, both in past actions and in the current action. Plaintiff filed for judicial injunctive relief before the Town could review its road use permit in 2001. (Def.'s Mem. Ex. G.) Rather than fully appealing the second cease-and-desist letter before the Town's Zoning Board, Plaintiff filed an appeal with the Zoning Board and simultaneously sought judicial intervention. (Pezza Aff. ¶ 30; Def.'s Mem. Ex. O.) Plaintiff continued its appeal of the letter with the Zoning Board over five times while waiting for the Court to rule on its request for injunctive relief, and the Court's Order enjoined the Zoning Board from holding a hearing on the second cease-and-desist letter. (Pezza Aff. Exs. 18-20; Def.'s Mem. Ex. S.) This case is before the Court again because two residents living near Plaintiff complained about its activities to the Town, and Plaintiff immediately sought judicial relief in the form of finalizing the Court's Orders. (Pl.'s Mem. at 10.)
Fear of the Town possibly rejecting a permit or variance application does not warrant depriving the Town of the ability to annually review road use or consider unauthorized business activities occurring in a residential zone. While Plaintiff argues enforcement of the Town's Zoning and Road Use Ordinances beyond the Court's Orders would result in severe economic losses, there is no guarantee the Town would deny a new road use permit or a zoning variance application. (Pl.'s Mem. at 23.) Futility is not applicable in this case because the Town has not "made it transparently clear" that a permit or zoning variance would not be granted; in fact, the Town never had a chance to review the 2001 road use permit or hear the appeal on the second cease-and-desist letter. (Def.'s Mem. at 15.)
This Court recognizes Plaintiff's role as "responsible corporate citizens cognizant of their neighbors," evidenced by its good faith in following the Road Use Order restrictions and continued payment for road repairs. (Pl.'s Mem. at 5, 21.) Plaintiff invests in expensive equipment for its operations, employs over forty people, and engages in contracts with third parties (including governmental entities). Id. at 25. In removing previous Court Orders and allowing the Town to review Plaintiff's road and land use, Plaintiff's investment in its business and community must be considered in the interim. Olivo's Mobile Home Court, Inc. provides a model solution for this situation, allowing Plaintiff to continue operating while applying for a new road use permit and a zoning variance. Olivo's Mobile Home Court, Inc., 111 R.I. 120, 300 A.2d 465.
In Olivo's Mobile Home Court, Inc., the Town of Glocester brought an action to enjoin a mobile home park operator from violating a provision of its licensing and zoning ordinances limiting the number of mobile homes that could be parked in a facility to thirty. Id. The Town of Glocester argued that Olivo's was not issued a license the year the ordinance was enacted, so the mobile park could not qualify as a lawful non-conforming use. Id. at 129, 300 A.2d at 470. The Rhode Island Supreme Court noted that Olivo's renewed the license for the park in 1967, and the Town accepted the payment despite the non-conforming number of mobile homes. Id. at 130, 300 A.2d at 471. It also recognized that Olivo's also expended a substantial amount of money based on the issuing of its license in 1967. Id.
Olivo's differs from this case because estoppel was granted against the Town of Glocester, prohibiting it from claiming Olivo's past business operations were an illegal non-conforming use. Id. Plaintiff here does not ask for estoppel preventing the Town from claiming past uses were non-conforming, but rather requests estoppel against the Town to prevent any future action against Plaintiffs beyond following the Court Orders. (Pl.'s Mem. at 12.) Plaintiff's request would perpetually prevent any Town oversight over its road and land use, regardless of future changes in Town regulations or administration. Additionally, the Town of Glocester in Olivo's was able to review license applications and grant or deny them, whereas the Town in this case has not reviewed any applications or actions from Plaintiff since the early 2000s. (Def.'s Mem. at 15-16.)
Ultimately, the Court in Olivo's ordered maintenance of the status quo while Olivo's filed an application with the Glocester Zoning Board for a variance. Olivo's Mobile Home Court, Inc., 111 R.I. at 132, 300 A.2d at 472 ("During the pendency of the proceedings to determine the extent of Olivo's nonconforming use, the order previously entered in the Superior Court preserving the status quo of the park during the instant appeal shall remain in full force and effect."). The Court stated Olivo's held the burden of showing factors proving the board's zoning ordinance would make it economically prohibitive to continue operation of the mobile home park. Id. These factors included the extent of operation at the time of the ordinance enactment; the liability incurred in developing the mobile park; and operating expenses and the extent of the non-conforming use. Id. at 132, 300 A.2d at 471-72.
Accordingly, this Court orders a similar interim solution for Plaintiff and the Town. Plaintiff shall apply for a new road use permit and use variance before the Town's Zoning Board. While Plaintiff's applications are pending before the Town, the status quo shall be maintained to prevent economic harm to Plaintiff in the interim.
IV
Conclusion
For the reasons stated above, this Court GRANTS the Town's Motion for Summary Judgment and DENIES Plaintiff's Motion for Partial Summary Judgment.