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Dwelly v. Zoning Board of Review of Town of Little Compton

Superior Court of Rhode Island

March 4, 2015

CHARLES DWELLY and MARIA QUINTAL
v.
ZONING BOARD OF REVIEW OF THE TOWN OF LITTLE COMPTON, sitting as the BOARD OF APPEALS, FREDRICK G. BUHRENDORF, JR., JANE P. CABOT, GRAEME BELL III, MARK SAWOSKI and HERB CASE, in their capacities as Members of said Zoning Board and JOSEPH R. MARION III

For Plaintiff: Per C. Vaage, Esq.

For Defendant: Richard S. Humphrey, Esq. Joseph R. Marion, III, Esq.

DECISION

STONE, J.

Charles Dwelly (Mr. Dwelly) and Maria Quintal (Ms. Quintal, jointly, Appellants) appeal from a decision of the Zoning Board of Review of the Town of Little Compton (the Zoning Board). That decision-dated June 27, 2014-reversed the Town of Little Compton Building Official, William Moore's (Building Official), decision to issue a building permit to Appellants in January 2014.

This Court has jurisdiction over this matter pursuant to G.L. 1956 § 45-24-69. For the reasons that follow, this Court remands the decision to the Zoning Board.

I Facts and Travel

Mr. Dwelly is the owner of real property located at 9 Peckham Road, Little Compton, Rhode Island, which is designated as Lot 18 on Assessor's Plat 27 (the Property). (Zoning Board Hr'g Tr. (Tr.) 3, June 18, 2014.) Defendant/Appellee, Joseph R. Marion III (Mr. Marion) is an abutting neighbor to the Property. Id. at 10. The Property is located in a residential zone. Id. Mr. Dwelly has been previously granted a kennel license under Little Compton Code 4-13-10, allowing him to keep up to ten dogs on the Property. Id. at 27-28; Zoning Board R. Ex. 11. He estimated that he started obtaining kennel licenses in the early 1990s. (Tr. at 27.) Mr. Dwelly owns approximately eight dogs on the Property. Id. at 17, 39.

Starting in 2012, Mr. Dwelly's neighbor, Mr. Marion, began making complaints to the Little Compton Police regarding the kennel. Mr. Marion's primary complaint was the smell of the dogs' waste and the dogs' loud barking. He hoped to establish that the configuration and condition of the kennel rose to the level of a nuisance. Because of the continuous complaints, Police Chief Wordell wrote a letter to the Town Clerk recommending the denial of Mr. Dwelly's license to maintain a dog kennel. (Zoning Board R. Ex. 9.) Mr. Dwelly's application to renew his kennel license was subsequently denied. (Zoning Board R. Ex. 10.)

On October 9, 2012, Joseph Warzycha, Special Agent of Rhode Island's Society for the Prevention of Cruelty to Animals (RISPCA), began an investigation after receiving a complaint via email stating that several Labrador Retrievers were with insufficient shelter and living in insanitary conditions on the Property. (Zoning Board R. Ex. 7.) On his first visit to the Property back in June 2011, Mr. Warzycha had found no criminal violation. Id. Mr. Warzycha's only concern was the condition of the kennels, and he instructed Mr. Dwelly to provide better maintenance. Id. On his second visit, in 2012, Mr. Warzycha made similar observations, but noticed that the kennels were slightly improved from the last time. Id. The dogs appeared in good condition and had access to water. Id. However, he informed Mr. Dwelly that pursuant to new legislation, Section 4-13-42 of the Rhode Island General Laws, caging of the animals for more than a fourteen-hour period on a daily basis was prohibited. Id. Consequently, Mr. Warzycha stated that he would suggest that the appropriate Little Compton authority grant Mr. Dwelly the ability to continue his current practices under three conditions:

"(1) He erect some form of structure consisting of a roof and at least three sides to protect from the wind. (2) Each dog has access to their own individual shelter that is sufficient to protect them from the inclement elements. (3) Mr. Dwelly allow Little Compton Police and/or the RISPCA access to his property at any time, to inspect the cleanliness of the kennels." Id.

In response, Mr. Dwelly decided to apply for a building permit to construct a kennel structure so that his dogs could be free and he could be in compliance with the new law. The Building Official granted the building permit. (Zoning Board R. Ex. 1.) Mr. Marion appealed the Building Official's grant of the building permit on the grounds that Mr. Dwelly's use of the Property was in violation of Little Compton Code 14-3.1(a), Table 1-A, Use C24, which requires a special use permit for the operation of kennels in a residential zone. (Zoning Board R. Ex. 2.)

A properly-advertised hearing was held on June 18, 2014. Mr. Marion appeared before the Zoning Board and testified that in order for Mr. Dwelly to "get a kennel in a residential zone, [he would] need a special use permit [] that was never applied for here." (Tr. at 10.) He also explained that he relied on Little Compton's Town Code 14-9.7, [1] Appeal, relative to getting reasonable notice, because he was not aware of the issuance of the building permit until construction materials arrived on the Property in May 2014. Id. at 10-11; 36. He claimed that Mr. Dwelly was in violation of § 4-13-42, which makes it illegal to keep any dog tethered, chained, or sheltered for more than fourteen hours during a twenty-four hour period. Id. at 15-16. The Building Official also spoke, indicating that although he had questions regarding whether the kennel was a "grandfathered" use on the Property and whether such use pre-dated applicable zoning ordinances, he had granted the building permit in good faith in order to allow for the dogs to be protected from the elements and to make the "dog situation better and quieter for the neighborhood." Id. at 22-23.

Mr. Dwelly also testified at the hearing. He claimed that he has had a kennel license since 1989 or the early 1990s and that, as far as he knew, the licenses had always been for a maximum of ten dogs. Id. at 27-28. He stated that the only time he did not have a kennel license was when he received a Cease and Desist letter in 2005. Id. In response to receiving that letter, Mr. Dwelly communicated with the then-Building Inspector, Mr. Earnes, who informed him that he could not have a sign advertising the sale of dogs cemented on the ground on the Property, as he had at the time. Id. Since removing the sign, he claims to have always had a kennel license. Id. at 28-29. He also claimed that the building he proposed would be an overhead above the dogs so that they could get inside and out of the weather, and that it was going to be a garage on the other side and a storage area on the second floor. Id. at 27.

Ms. Quintal also testified. She reiterated what Mr. Dwelly had stated about the Cease and Desist letter and that Mr. Earnes said "[they] didn't need [a] special permit" because they were not a boarding kennel, but instead were raising and selling their own dogs. Id. at 35-36. Ms. Quintal also pointed out that Mr. Marion's argument that his appeal was made within a reasonable time is not accurate, as he had reason to know of the building permit months prior. She claimed that Appellants received a large lumber delivery by Home Depot back in August 2013 and that Mr. Marion had a clear view of the lumber from his residence because it was stacked six-feet high. Id. ...


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