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State ex rel. Town of Tiverton v. Pelletier

Supreme Court of Rhode Island

December 15, 2017

State ex rel Town of Tiverton
v.
James Pelletier. State ex rel Town of Tiverton
v.
Melissa Pelletier. James Pelletier et al.
v.
Town of Tiverton.

         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 ...


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