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Greenvale Farm, LLC v. Zoning Board of Review for City of Portsmouth

Superior Court of Rhode Island

October 30, 2014


Newport County Superior Court

For Plaintiff: David P. Martland, Esq.

For Defendant: Kevin P. Gavin, Esq., Jeremiah C. Lynch, III, Esq.



Before this Court is an appeal from a decision of the Zoning Board of Review for the City of Portsmouth (Zoning Board) that overturned a decision rendered by the Portsmouth Zoning Enforcement Officer, Mr. Gary Crosby, who had found that Appellant, Greenvale Farm, LLC (Greenvale), was lawfully using its property to host weddings. Jurisdiction over this timely appeal is pursuant to G.L. 1956 § 45-24-69(d).

I Facts and Travel of the Case

Greenvale owns property located on Greenvale Lane, which is situated on the easterly side of Wapping Road in Portsmouth, Rhode Island (the Property). Located in an R-40 Zone, the Property consists of approximately fifty-six acres of land on which Greenvale operates a vineyard.[1] (Mem. of Appellant 1.) The Property was used primarily for farming from 1863, but in the 1990s, Greenvale began to make and sell wine. Id. According to Greenvale, the Property has been used to host weddings and wedding receptions since 2001. Id. Greenvale rents the Property for a fee, but the renter is responsible for providing all services, such as caterers, music, tents, etc. Id. at 1-2.

In 2009, Greenvale wanted to construct a building closer to Wapping Road; the building would be used not only to make wine and store products but also to serve as a "tasting room and [a] base of operations." Id. at 2. When Nancy Howard—an abutter residing approximately 1500 feet from the Property—learned of the proposed construction, she contacted Mr. Crosby. Id. She was concerned that the use of the Property for weddings and receptions was a violation of the Portsmouth Zoning Ordinance (the Ordinance). Id.

In a decision dated October 27, 2009, Mr. Crosby found that "the manner in which Greenvale Vineyards presently conducts this activity is not a violation" of the Ordinance. (Decision, Oct. 27, 2009.) Mr. Crosby noted in his decision that pursuant to Article III, § C(1) of the Ordinance, "[t]he principal use of the Greenvale property is for agricultural purposes and thus permitted by right." Id. He went on to observe that both the Ordinance and the Rhode Island Enabling Act, § 45-24-1, et seq., are silent on the subject of "non-farm accessory uses." He thus looked to the State Right to Farm Act, G.L. 1956 § 2-23-4(a), to determine that Greenvale's activity on its property is "a viable means of contributing to the preservation of agriculture" and is not in violation of the Ordinance.[2] Id.

Ms. Howard appealed that decision to the Zoning Board, which conducted hearings on December 17, 2009; January 21, 2010; and March 4, 2010. The hearings were properly noticed, and both Greenvale and abutters on both sides of the issue were given an opportunity to be heard and present evidence. Greenvale was not, however, permitted to respond to arguments raised by objecting abutters.

At the hearings, Ms. Nancy Parker Wilson—a principal of Greenvale—testified that ten weddings had been held on the Property since 2009, that "seven more . . . were scheduled by September or October, 2010[, ]" and that weddings accounted for "about ten percent of [Greenvale's] income. (Decision at 2, Mar. 18, 2010.) She further testified that each of the four vineyards in Rhode Island hosts weddings, and "[n]ationally it is normal to do so." Id. Mr. Al Bettencourt, Executive Director of the Rhode Island Farm Bureau (RIFB), stated that "he did not know of any successful farm that does not have supplemental activities" and that "[w]eddings are held on farms throughout the country." Id. Mr. W. Michael Sullivan spoke on behalf of the Rhode Island Department of Environmental Management (RIDEM), emphasizing that "having events is common to the [agricultural] industry" and that "state law should be consulted on the question of what activities are included in agriculture." Id. at 1. Several unnamed persons also voiced support for Greenvale, opining that events and activities on the Property would help to support farming. Id. at 2.

In opposition to the application, Greenvale testified that the Town of Portsmouth has already issued thirteen permits for various things to Greenvale over a "period of years, " that the Property is in a residential area, and that "there are no street lights." Id. at 1. Mr. Ken Ayers, Chief of the RIDEM Division of Agriculture, testified that state law finds that the "mixed use of agricultural land is necessary for farms" but that the law "does not override local zoning." Id. at 2. Additionally, other unnamed neighbors and interested parties "expressed fear about traffic safety based on their own experiences." Id.

The Zoning Board voted unanimously to overturn the decision of Mr. Crosby on two grounds. First, the Zoning Board noted that the Ordinance defines an "accessory use" as one that is "customarily incidental and subordinate to the principal use." Portsmouth Zoning Ordinance, Art. II, § B; Decision at 2, Mar. 18, 2010. The Zoning Board went on to state that hosting weddings and receptions is not a "necessary part of a winery operation" and thus not a proper accessory use to the primary agricultural use of the Property. (Decision at 3, Mar. 18, 2010.) The Zoning Board also stated that the Ordinance limits permitted uses to those set forth in the table of use regulations found in Article V of the Ordinance and that a wedding use is not set forth in that table. Id. Next, the Zoning Board concluded that Mr. Crosby's reliance on the State Right to Farm Act was erroneous because subsection (b) of the relied-upon provision states that "[n]othing herein shall be deemed to restrict, limit or prohibit nonagricultural operations from being undertaken on a farm except as otherwise restricted, regulated, limited or prohibited by . . . ordinance." Id.; § 2-23-4(b). Thus, the Zoning Board found that Mr. Crosby had exceeded his authority by allowing a nonagricultural use that is not allowed under the Ordinance.

The Zoning Board's written decision was recorded in the records of the Portsmouth Town Clerk on March 22, 2010. (Decision at 3, Mar. 18, 2010.) Greenvale filed a timely appeal to this Court on April 7, 2010. Either before the appeal had been filed, or very shortly afterwards, Greenvale filed a petition with the Zoning Board requesting a special use permit to "conduct weddings, receptions, corporate functions, banquets and the like" on the Property. Greenvale Farm, LLC v. Zoning Board of Review for the City of Portsmouth, 2012 WL 3919754, *2 (R.I. Super. Sept. 5, 2012) (Nugent, J.). That petition was originally assigned for hearing on April 15, 2010, but was not ultimately heard until October 19, 2010. Id. The Zoning Board dismissed the petition in a written decision dated December 30, 2010: the Zoning Board determined that Greenvale's request to hold weddings and receptions was akin to a request to establish an "eating place[, ]" a prohibited use in an R-40 Zone, and that, therefore, Greenvale should not be granted a special use permit. Id. at 5; ...

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