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Carlson v. Zoning Board of Review of Town of South Kingstown

Superior Court of Rhode Island

November 25, 2016

JORDAN CARLSON
v.
ZONING BOARD OF REVIEW OF THE TOWN OF SOUTH KINGSTOWN, ROBERT TOTH, STEPHANIE OSBORN, IGOR RUNGE, ROBERT CAGNETTA, DOUGLAS BATES, and JOHN BERNARDO, in their official capacities only as MEMBERS OF THE ZONING BOARD OF REVIEW OF THE TOWN OF SOUTH KINGSTOWN

         Washington County Superior Court

          For Plaintiff: John F. Kenyon, Esq.

          For Defendant: Andrew M. Teitz, Esq. Amy H. Goins, Esq.

          DECISION

          GALLO, J.

         Before the Court is an appeal of a decision from the Zoning Board of Review of the Town of South Kingstown, Rhode Island (the Zoning Board). Appellant Jordan Carlson (Carlson) asks the Court to reverse the Zoning Board's decision concerning property at 17 Columbia Street, South Kingstown (the Property). The Zoning Board found that Carlson's medical marijuana grow operation constituted agricultural products manufacturing under the South Kingstown Zoning Ordinance, and it upheld the Building Official's Notice of Violation. For the following reasons, the Court reverses the Zoning Board's decision.

         I

         Facts and Travel

         The Property is owned by Campus Cinema, LLC and is located in the Commercial Downtown (CD) Zoning District in South Kingstown. The Property was formerly a movie theater, but Carlson currently rents the premises. He grows marijuana at the Property, in accordance with his medical marijuana license.

         On March 12, 2014, the South Kingstown Fire Department responded to a fire alarm at the Property, and the responding firefighters found a marijuana grow operation inside the building. (Police Reports, Appellant App. 9). Subsequently, police arrived at the Property, and officers spoke with Carlson, who demonstrated that he was a licensed medical marijuana patient. Id.

         As a result, on April 8, 2014, Jeffrey O'Hara, the Building Official and Zoning Enforcement Officer for the Town of South Kingstown (Building Official), sent a Notice of Violation to Campus Cinema, LLC. (Notice of Violation, Appellant App. 1). The Notice of Violation provided as follows:

"It has come to the attention of this office that there is an agricultural products manufacturing process taking place at your property on 17 Columbia Street. Be advised that this is in violation of Section 301, Use Code 74.1, of the South Kingstown Zoning Ordinance and is prohibited in a CD Zone. Upon receipt of this Violation Notice, you must cease this practice within fifteen (15) days. Failure to do so will result in legal action to be taken against you and fines may be levied." Id. (emphasis in original).

         On April 21, 2014, Carlson appealed the Notice of Violation to the Zoning Board. (Appeal, Appellant App. 3).

         On July 16, 2014, the Zoning Board held a public hearing on the appeal. At the hearing, the Building Official testified that the Notice of Violation was a result of the police reports regarding the March 12, 2014 fire alarm response. (Tr. 6, July 16, 2014, Appellant App. 5).

         The Building Official issued the violation based on the police reports of four officers, and he testified that he did not enter the building, but rather relied "solely on the report . . . from the police department." Id. The police report of Patrolman Andrew S. Hopewood, dated March 13, 2014, (Police Report) provided as follows:

"Inside one of the old movie theaters that was two doors north of the building's northwest corner, the marijuana grow operation was located inside an independent heat insulated structure. Inside the structure, 15 small to medium sized healthy marijuana plants were located. No other plants or seedlings were found. A large number of unused high powered halogen lights were observed still in their shipping boxes along with other grow equipment that was not necessary for this grow site.
"The interior of the old theater and the marijuana grow were photographed for documentation."[1] (Police Reports, Appellant App. 9).

         Three other police reports reported similar findings. Id.

         The Building Official also testified, explaining the reasoning behind the Notice of Violation:

"I selected Agricultural Products Manufacturing, where they're taking an agricultural type product, grinding it, processing it, or whatever they do, to make it a usable product for the consumer or for whomever is the end user, and that's what I based my determination on . . . ." (Tr. 21, July 16, 2014, Appellant App. 10).

         While agricultural products manufacturing is not permitted in any zones in the Town of South Kingstown, some agricultural activities, such as crop farms, are permitted in all zones.[2] South ...


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