Newport
County Superior Court (N 3/09-238A), (N3/09-238B), (NC
09-443)[1] Associate Justice Melanie Wilk Thunberg
For
Plaintiffs: Peter F. Skwirz, Esq. Anthony DeSisto, Esq Andrew
M. Teitz, Esq
For
Plaintiffs: Peter F. Skwirz, Esq. Anthony DeSisto, Esq Andrew
M. Teitz, Esq
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
MAUREEN MCKENNA GOLDBERG, JUSTICE.
These
consolidated cases came before the Supreme Court on October
4, 2017, on appeal by the defendants, James and Melissa
Pelletier (defendants), from a judgment of conviction entered
in the Superior Court, following a bench trial. The
defendants were convicted of violating Tiverton Zoning
Ordinance Article IV, Section 3(a).
Before
this Court, defendants argue: (1) that producing compost on
their property is an accessory use to their permitted nursery
activities; (2) that the findings and conclusions of the
trial justice were clearly wrong because she overlooked and
misconceived material evidence; and (3) that Tiverton Zoning
Ordinance Article IV, Section 13(a), is unconstitutionally
vague and is therefore void. For the reasons set forth herein
we affirm the judgment.
Facts
and Travel
The
defendants own a thirty-acre tract of land located on
Crandall Road in Tiverton (the property). On March 16, 2009,
defendants were served with a summons and complaint charging
them with violating Article IV, Section 13(a) for
manufacturing compost on the property, which is located in an
R-80 zoning district.[2] Although raising crops commercially,
including an associated greenhouse or nursery, is a permitted
activity in an R-80 zone, industrial manufacturing, storing,
processing, and fabricating activities in an R-80 zone are
prohibited by Section 13(a) of the ordinance. After a trial
in the Tiverton Municipal Court, defendants were found liable
for manufacturing compost in an R-80 zone in violation of
Article IV, Section 13(a) of the zoning ordinance, resulting
in a $2, 000 fine. The order declared that defendants were
engaged in the mixing together of organic materials for the
purpose of manufacturing compost in an R-80 zone in violation
of Article IV, Section 13(a) of the ordinance.
The
defendants appealed the Municipal Court Order in accordance
with G.L. 1956 § 45-2-34[3] and were afforded a trial de
novo in Superior Court. A trial commenced on October 4,
2010, in Superior Court. The Town of Tiverton (the town)
presented three witnesses: Daniel Lawton, an Environmental
Scientist and Inspector with the Rhode Island Department of
Environmental Management (DEM); Gareth Eames, the town's
Building and Zoning Official; and Peter Mello,
defendants' neighbor.
Mr.
Lawton testified that he visited the property on four
occasions between February 2007 and September 2010 and that
on each occasion there were piles of material including:
manure, woodchips, solid waste, yard waste, and bedding,
along with combinations of the aforementioned materials,
which he deemed to be compost. At trial, Lawton identified
photographs of piles of organic materials situated on the
property: "This is what I observed and believed to be
screened compost * * * [t]his is what I observed and believed
to be a pile of soil mixed with compost." Mr. Pelletier
informed Lawton that he was starting a tree nursery on the
property. Lawton inspected the nursery area of the property,
where he observed approximately fifty trees with compost
piled on the base of the trees.[4] It is undisputed that the
Pelletiers also own and operate a landscaping business, Tiger
Tree LLC.
Mr.
Eames testified that he began receiving complaints regarding
defendants' property in 2005. He made about 100 site
visits to the property between 2005 and 2010. As a result of
these visits and his communications with DEM, he issued two
notices of violation of Article IV, Section 13(a), on January
23, 2009, and February 18, 2009. He observed large piles of
manure and yard waste. Significantly, he also observed
industrial earth-moving equipment used in the processing of
compost, including a dump truck, a front-end loader, a bucket
loader, an excavator, a skid steer, and a
trommel[5] on the property. During one of Eames's
site visits in 2008, Pelletier admitted to him that he was
making compost on the property. Mr. Eames stated that
Pelletier had said: "I'm making compost."
Furthermore, in 2010, Eames saw trees in the nursey section
of the property-which comprised approximately one acre of the
thirty acre tract-but there was no compost at the base of the
trees. Mr. Eames acknowledged that because the zoning
ordinance does not define "compost, " he looked to
Webster's Dictionary before determining that defendants
were in violation of the ordinance.[6]
Finally,
Mello testified that he resides approximately 300 feet from
the property and was repeatedly disturbed by construction
noise from the property which he described as, "[t]he
humming of heavy equipment, industrial equipment constantly
in the background in the neighborhood, and then the increased
volume of tractor trailers coming up and down the street,
" entering and exiting defendants' property. Mr.
Mello was bothered by the construction noise because it
"vibrate[d] down to [his] house." He observed
industrial machinery coming to and from the property and
other equipment such as bulldozers, a trommel, backhoes, and
tractor trailers. Mr. Mello also witnessed the trommel in
operation on numerous occasions and saw Pelletier mixing the
material with his equipment and also observed steam
developing from the mass of material on the property. In
order to document defendants' activities, Mello took a
series of photographs depicting the piles of compost material
and industrial equipment on the property, which photographs
were introduced into evidence at trial.
At the
close of the town's evidence, defendants moved to dismiss
the complaint in accordance with Rule 29 of the Superior
Court Rules of Criminal Procedure.[7] The trial justice denied
defendants' motion, and the defense case proceeded on
July 23, 2013. Over the course of four trial days on various
dates, defendants presented two witnesses: Pelletier and
Joseph Lombardo, an expert in the field of land-use planning.
Mr. Pelletier testified about the various organic materials
that were stockpiled on the property, and he admitted that
materials such as the grass clippings, yard waste, and horse
manure were also shipped from off-site for the purpose of
composting. However, he disagreed that he was
"manufacturing" compost because he indicated that,
once the materials are mixed together, "nature takes
over" and compost develops naturally when certain
organic materials are combined in a heap. Mr. Lombardo
testified that he visited the property for two hours in April
2010. In his opinion, defendants' actions could not be
categorized as an industrial use, and he stated that no
manufacturing process was taking place on the property
because defendants' compost was not being packaged and
sold as a product off-site.
On
September 27, 2013, the trial court issued a written decision
finding beyond a reasonable doubt that defendants violated
the Tiverton Zoning Ordinance by manufacturing compost on the
property.[8] The defendants appealed to this Court and
raised seven issues on appeal: (1) whether composting is
permitted in an R-80 zone; (2) whether the
"manufacturing of compost" is permitted in an R-80
zone; (3) whether the town has proven beyond a reasonable
doubt that defendants were "industrially manufacturing
compost" within the intent of Article IV, Section 13(a)
of the zoning ordinance; (4) whether the zoning code is
unconstitutionally vague and fails to provide defendants with
the requisite notice that manufacturing compost is not
permitted in an R-80 zone; (5) whether defendants'
composting activities are protected by the Rhode Island Right
to Farm Act, G.L. 1956 chapter 23 of title 2[9]; (6) whether the
town is estopped from assessing any fine against defendants;
and (7) whether the compost registration defendants obtained
from DEM preempts any local zoning ordinances that prohibit
composting in a residential zone.[10]
We note
at the outset that, although defendants have raised multiple
issues on appeal, several issues were not argued to the trial
justice and therefore are not preserved for appellate
review.[11] This Court has long adhered to the
"raise or waive" rule, which provides that "an
issue that has not been raised and articulated previously at
trial is not properly preserved for appellate review."
In re Shy C., 126 A.3d 433, 434-35 (R.I. 2015)
(quoting State v. Gomez, 848 A.2d 221, 237 (R.I.
2004)). Moreover, "if an issue was not preserved by
specific objection at trial, then it may not be
considered on appeal." State v. Pona, 66 A.3d
454, 468 (R.I. 2013) (quoting State v. McManus, 990
A.2d 1229, 1237 (R.I. 2010) (emphasis added)). Therefore, we
shall address only those issues that are properly before the
Court. The narrow issue before this Court is whether
defendants' conviction is proper based on the evidence.
For the reasons set forth herein, we affirm the judgment.
Standard
of Review
The
decision of a trial justice in a criminal bench trial will
not be disturbed absent a record showing that "the trial
justice misapplied the law, misconceived or overlooked
material evidence or made factual findings that were clearly
wrong." Lamarque v. Centreville Savings
Bank, 22 A.3d 1136, 1139-40 (R.I. 2011) (quoting
Cathay Cathay, Inc. v. Vindalu, LLC, 962 A.2d 740,
745 (R.I. 2009)). The "factual findings of a trial
justice sitting without a jury ...