Town of Lincoln v. Cournoyer

• Decision Date: 18 December 1962
• Docket Number: No. 2954,2954
• Citation: 95 R.I. 280,186 A.2d 728
• Parties: TOWN OF LINCOLN v. Joseph A. COURNOYER et al. Eq.
• Court: Rhode Island Supreme Court

Page 728

186 A.2d 728

95 R.I. 280

TOWN OF LINCOLN v. Joseph A. COURNOYER et al.

Eq. No. 2954.

Supreme Court of Rhode Island.

Dec. 18, 1962.

Harry W. Asquith, Town Sol., for Town of Lincoln, for complaint.

Milton Stanzler, Providence, for intervenor.

Philip M. Hak, Roger A. Beauchemin, Pawtucket, for respondents.

ROBERTS, Justice.

This proceeding was brought to enforce the terms of the zoning ordinance of the town of Lincoln pursuant to the provisions of G.L.1956, § 45-24-6, wherein an intervenor petitioned to adjudge the respondents in contempt for violating the terms of a decree entered on February 18, 1958. The petition to adjudge in contempt was heard by a justice of the superior court who thereafter entered a decree on June 30, 1961 to that effect and on July 3, 1961 entered another decree imposing a penalty upon the respondents. From the July 3 decree the respondents have prosecuted an appeal to this court.

It appears from the record that respondents own a tract of land zoned in part for residential use and in part for agricultural use. The instant proceeding was instituted on August 6, 1957 by the town through its solicitor. According to the averments of the bill, respondents had been using the land for the storage of certain motor vehicles, junk, and waste in violation of the terms of the zoning ordinance, and the bill contained prayers for injunctive relief. The cause was beard by a justice of the superior court who thereafter, on February 18, 1958, entered a decree wherein he found that respondents had been using the land in violation of the provisions of the zoning ordinance and that such a use constituted a public nuisance. The decree contained further provisions enjoining respondents from continuing to make such use of the land and ordering them to remove the junk and waste material therefrom on or before April 1, 1958.

Thereafter the cause was before the superior court on several petitions and a motion, including a petition to adjudge respondents in contempt for violation of the terms of the decree of February 18, 1958. For the purposes of the instant opinion we need note only that a decree was entered by a justice of the superior court on November 10, 1959 adjudging respondents in contempt for violations of the decree of February 18, 1958 and assigning the cause to the miscellaneous calendar for further hearing as to the disposition to be made of the contempt.

Pursuant to this assignment the matter was further heard for disposition of the contempt by another justice of the superior court who on December 16, 1959 entered a decree wherein respondents were required to furnish bond, each of the parties was directed to furnish the court with certain evidentiary materials, the premises were ordered to be maintained in statu quo pending a further hearing, and the cause was ordered to be continued for such further hearing for a period of ninety days. The record reveals that no further hearing was held pursuant to the continuance therein ordered.

On March 13, 1961, more than a year after the entry of the decree of December 16, 1959, Henry Gagnon, the owner of certain property which adjoins that of respondents, moved the superior court to be permitted to intervene in the instant proceeding that had been brought by the town to enforce compliance with the terms of the ordinance. This motion to intervene was granted on March 21, 1961 and thereafter, on April 3, 1961, Henry Gagnon, hereinafter referred to as the intervenor, filed a petition to adjudge respondents in contempt for violation of the provisions of the decree of February 18, 1958.

The intervenor's petition came on to be heard before a justice of the superior court on May 10, 1961. The respondents objected at this time to any consideration of it, contending that the matter of a disposition of the contempt was pending before another justice of the superior court by reason of the decree of December 16, 1959 that continued for further hearing the petition of the complainant town to adjudge respondents in contempt. The trial justice overruled this objection and thereafter, on May 15, 1961, entered a decree vacating certain paragraphs of the decree of December 16, 1959 and ruling that there was no decision pending in this proceeding before any justice of the superior court. From this decree respondents have prosecuted an appeal to this court.

The intervenor's petition was then heard by another justice of the superior court who, after an extended hearing thereon, entered a decree on June 30, 1961 adjudging respondents in contempt for violating certain of the terms of the decree of 1958. He then continued the matter to July 3, 1961 for further hearing as to the disposition to be made of the contempt. On July 3, 1961 the same justice entered a decree wherein he imposed a penalty in the amount of $150 on each of the respondents. The respondents have prosecuted an appeal to this court from each of the latter decrees.

In this court respondents prefaced their arguments on the instant appeal with a motion to dismiss the proceeding to compel compliance with the terms of the zoning ordinance instituted by the complainant town pursuant to the provisions of § 45-24-6. In support of this motion they contend that on March 28, 1961 the town council of the complainant town enacted a new zoning ordinance wherein the zoning ordinance of 1948 was expressly repealed. They urge that since the thrust of the instant proceeding is to compel compliance with the zoning ordinance of 1948, the effect of the repeal of that ordinance is to abate the instant proceeding.

However, a close scrutiny of the record does not disclose that a new zoning ordinance was enacted in 1961 or that any ordinance was enacted repealing the zoning ordinance of 1948. In other words, it would appear that respondents, in making their motion to dismiss, are assuming that this court will take judicial notice of the enactment of municipal ordinances and as to the substance of provisions in such ordinances. With this assumption we do not agree.

It is generally held that the doctrine of judicial notice will not be extended to the enactment of specific municipal ordinances or to the specific provisions of such municipal ordinances. Brown v. Neelon, 335 Mass. 357, 140 N.E.2d 213. In State ex rel. Heimov v. Thomson, 131 Conn. 8, 37 A.2d 689, it was held that the doctrine of judicial notice would not be extended to the specific provisions of a zoning ordinance. We might well take judicial notice that many municipalities of this state have enacted zoning ordinances pursuant to the authority of the enabling act, chap. 24 of title 45. This is a matter of common knowledge. See Kistler v. Swarthmore Borough, 134 Pa.Super. 287, 4 A.2d 244. We will not, however, invoke the doctrine of judicial notice for the purpose of establishing the enactment of a municipal ordinance containing a provision repealing some prior municipal ordinance. It cannot be reasonably argued that this would be a matter of common knowledge. The motion to dismiss is therefore denied without prejudice.

In support of their appeal from the action of the superior court imposing a penalty for...