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Labossiere v. Town of North Kingstown

Superior Court of Rhode Island

May 2, 2016

SCOTT R. LABOSSIERE
v.
THE TOWN OF NORTH KINGSTOWN THROUGH ITS ZONING BOARD OF REVIEW AND ITS MEMBERS, DANIEL PIRHALA, ARTHUR CARDENTE, BRIERLY MELLOR, JOHN GIBBONS, AND JAMES ALMEIDA

Washington County Superior Court

For Plaintiff: James M. Callaghan, Esq.

For Defendant: James H. Reilly, Esq.

DECISION

K. RODGERS, J.

This matter is presently before this Court on appeal by Appellant Scott R. Labossiere (Labossiere or Appellant) from a decision of the Town of North Kingstown's Zoning Board of Review (the Zoning Board). A Notice of Violation (NOV) and Order were issued on November 28, 2012, citing Labossiere for storing material and equipment in a residential zone and for conducting a business use in a residential zone that does not conform to a Customary Home Occupation.[1] After hearing on August 27, 2013, the Zoning Board issued its decision dated September 10, 2013 (the Decision) denying Labossiere's appeal from that NOV and Order.

This Court has jurisdiction over this matter pursuant to G.L. 1956 § 45-24-69. For the reasons that follow, this Court affirms the decision of the Zoning Board and enters judgment on its behalf.

I Facts and Travel

Appellant is the owner of real property located at 655 Tower Hill Road in North Kingstown, Rhode Island, designated as Lot 98 on the Assessor's Plat 85 (the Property). The Property is located in a Village Residential (VR) zoning district and in Groundwater Overlay Zone 2. Appellant resides in the single story dwelling on the Property. Since at least 2006, Appellant has been storing certain items on the Property, including several large commercial vehicles that are used in his business "Mister Tree, Inc."

Tedeschi issued Appellant an NOV on November 28, 2012, informing him that an inspection of the Property had taken place on November 6, 2012 and that two violations of the Town's Zoning Ordinance were noted: "Material and equipment storage in a residential zone" and "Business use in a residential zone that does not conform to a Customary Home Occupation." (Appellee's Ex. A.) That NOV also noted two Ordinance provisions, presumably as reference to the provisions that are alleged to have been violated: Sec. 21 Article III Land Use Tables[2], and Section 21-320.[3] (Id.)

Labossiere appealed the NOV to the Zoning Board, which held a hearing on the matter on August 27, 2013. The Zoning Board heard testimony from Appellant, Tedeschi, and five neighbors.

Tedeschi testified that he received a complaint from a neighbor in 2011 that the business being operated on the Property had greatly expanded from what had been occurring in 2008, when the prior NOV was issued. Tedeschi stated that he "visited the property and observed piles of wood, two trucks with aerial lifts with the marking Master [sic] Tree, Inc., a long-body dump truck, a medium-sized truck that had an attached snow plow, wood splitter, storage container, and various other heavy-duty equipment." Tr. 8, Aug. 27, 2013. An 8-foot cedar fence had been built on the Property since Tedeschi issued the NOV in 2008, which fence concealed much of the equipment from the street. Tedeschi testified that as of the day of the August 27, 2013 hearing, there was a wood chipper for sale in front of the gate that was visible from the street. Id. at 10.

Tedeschi explained to the Zoning Board that, in applying the Town Ordinance to the Property which prohibits material and equipment storage, "materials, to me, in this case would be the storage of the piles of wood." Id. at 12. Additionally, he explained that while many of the equipment items found on the Property could be routinely found in residential homes or even small businesses, such as a snowplow, big equipment tire, smaller wood cutting equipment, rakes, and shovels, he considered those items to fit into the Ordinance's definition of "equipment storage." See id. Tedeschi noted that he had not observed any selling of wood or other materials occurring on the premises, other than the "For Sale" sign on the wood chipper in front of Appellant's house. Id. at 13. Tedeschi considered the vehicles on the Property to fit into the "equipment" category of the Ordinance, even though they could also be considered "commercial vehicles" which were not then prohibited by the Ordinance.[4] Id. at 17.

Appellant testified before the Zoning Board that Mister Trees, Inc. is a tree service that primarily involves going to customers' houses, cutting down trees, chopping the wood and hauling it away. Id. at 19. He stated that the business had a separate site off Exeter Road in Exeter, Rhode Island, to where the wood was typically hauled. Id. at 21. Appellant stated that he conducted some business at his home, using a desk and a fax machine that took up 10% or less of the entire square footage of the residence. See id. at 24-25. He testified that all business calls went directly to his cell phone. Id. at 24.

When asked what he used the Property for, in terms of equipment, Appellant testified that he stored approximately seven trucks on the Property that are used in his tree business, as well as a wood splitter and some trailers. Id. at 26-27. He stated that employees came to the Property, but generally only in the morning to meet at the house and then take the trucks to that day's job site. Id. at 27. Appellant further testified that his employees did not work on the Property except to sometimes help his father with chores or to split wood "once in a while." Id. at 27-28. Appellant acknowledged that some dust was created, but that on average only two trucks left and returned to the Property each day. Id. at 29. He also testified that the wood splitter generated approximately the same amount of noise as a handheld lawnmower, and that any wood splitting that did take place on the Property happened only during regular business hours, roughly from 8 A.M. to 4 P.M. Id. at 29-30.

Appellant further stated that wood was brought back to the Property if it was improperly cut at a job site or the Exeter site and if it required correcting. Id. at 32-33. In response to questions from the Zoning Board, he admitted that it was typical for there to be three or four piles of wood at a time on the Property needing to be corrected. Id. at 34. The wood contained in these piles would be cut on the Property, loaded on a truck within a day or two, and then returned to the Exeter site. Id.

The Zoning Board next heard testimony from Keith Warren Mercado Lazarski (Lazarski), who resided at 673 Tower Hill Road with his parents, wife and children, directly adjacent to the Property. He expressed concern about the business operations then taking place on the Property, which operations had expanded since 2008. Lazarski testified that there were closer to 11 to 13 vehicles being stored on the Property, in addition to the wood chippers, log splitters and other devices used in the business that remained on the Property. Id. at 41. Further, he stated that there were two businesses operating from the Property, Mister Tree Truck Service and Ray's Wood. Id.

Lazarski explained that his mother suffers from emphysema and Chronic Obstructive Pulmonary Disease (COPD), which precludes any outdoor activity during periods of poor air quality. Id. at 41-42. He testified that Appellant's activities on the Property produced gasoline and diesel fumes both from the vehicles moving on and off the Property and by people working on the vehicles at the Property. Id. The fumes often prevented his mother from being able to go outside, and consequently prevented his children from being able to play outside when his mother was caring for them. Id. Lazarski testified that the business created "high-flow traffic" in the area, because the trucks went in and out of the Property "conservatively two to three times a day, " making him concerned for his children's safety. Id. at 46.

Elizabeth Shackelford Smith (Mrs. Smith), who lived two parcels to the north of the Property, testified that activity is conducted on the Property by two businesses, including Ray's Firewood, as Lazarski also explained. See id. at 49. She stated that "[i]t's a daily business putting firewood in [the trucks] that they're delivering" just after 7:00 when she drives to work. Id. at 49-50. Furthermore, Mrs. Smith stated that the activity was "very, very loud, " and that even from two houses down, the loading and splitting of wood was loud enough to wake her up on days she did not go to work. Id. at 50.

Mrs. Smith's husband, Frederick Smith (Mr. Smith), testified that the trucks were "heavy equipment trucks" that created a lot of noise, including loud beeping noises when backing in and out. Id. at 51. He stated, "[i]t's enough in the morning and the afternoon and the evening to be very disruptive." Id. He also testified that loud, disruptive noise from chainsaws and wood splitters could be heard from the Property nearly every day, including Sundays. Id. at 52.

John Capilli (Capilli) lived across the street from the Property and, despite there being a house and large hedges between his house and the Property, he still heard a lot of noise from trucks, chainsaws and other activities. Id. at 54-55.

Don Thela (Thela), the adjacent property owner to the north, testified that his property was approximately six feet higher in elevation than Appellant's, and that he could see the trucks and hear the noise from his property. Id. at 56.

Following the close of testimony, the Zoning Board voted unanimously to affirm the issuance of the NOV. Its written Decision was issued on September 10, 2013, and recorded on October 23, 2013. (Appellee's Ex. C.) In its findings of fact, the Zoning Board found that "[t]he tree service business use being carried out on site does not satisfy the required conditions of section 21-320 (b) (1-8) of the North Kingstown Zoning Ordinance to allow for the existing business use to be ...


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