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Correia v. The Town of Coventry

Superior Court of Rhode Island, Kent

September 27, 2019


          For Plaintiff: Ryanna Tyler Capalbo, Esq.; Andrew R. Bilodeau, Esq.

          For Defendant: Jane Gurzenda, Esq.


          LICHT, J.

         Joshua Correia (the Appellant) appeals the December 6, 2017 decision of the Zoning Board of Review of the Town of Coventry (the Board), which denied a special use permit to the Appellant to operate a dog kennel facility located at 580 Sisson Road in Coventry, Rhode Island. This appeal is properly and timely before this Court pursuant to G.L. 1956 § 45-24-69. For the reasons set forth below, the Board's decision is hereby affirmed.


         Facts and Travel

         On October 4, 2017[1] and November 1, 2017, [2] the Appellant appeared before the Board on his petition for a special use permit to operate a dog kennel facility at 580 Sisson Road, Coventry, Rhode Island (the Property). The Property is located in an RR-5 Zoning District[3] in which operation of a dog kennel is only permitted with a special use permit. The Appellant's application for the special use permit was originally approved by the Coventry Planning Commission (the Commission). Coventry Planning Commission Minutes, July 27, 2017 (hereinafter, Minutes) The Commission then recommended the approval of the Appellant's application to the Board suggesting that the Board address the breed of dog; the quantity of dogs allowed; and the maintenance of the required kennel licensing requirements. Minutes at 6. After two public hearings, the Board ruled unanimously on November 1, 2017 to deny the Appellant's application for a special use permit. (Tr. 2 at 67.)

         During the two public hearings, the Appellant and his attorney, Attorney Martucci, testified in support of the application. The Coventry Zoning Ordinance lists eleven factors the Board must consider in its review of a special use permit application, and satisfactory evidence of these standards must be introduced by an applicant. In the Board's decision, the Board addressed each factor and made conclusions of law based upon its findings of fact. Board's Decision, Dec. 6, 2017 (hereinafter, Decision).

         On behalf of the Appellant, Attorney Martucci testified that the Appellant intends to operate a kennel for the purposes of dog breeding and selling American Bullies. Tr. 1 at 3. The Appellant already constructed the shell of a 6000 square foot building on the Property prior to the hearing (the Building), which Appellant intends to finish as a kennel. Tr. 1 at 3. Appellant obtained the proper building and zoning requirements to construct the Building as an accessory structure to the principle residence, which was classified as a shed. Tr. 1 at 30. The Building would be insulated and connected to the appropriate utilities. Tr. 1 at 3. The natural vegetation of the Property would serve as a barrier for the noise. Tr. 1 at 23. The Building would contain individual kennels in which the dogs and puppies would live. Tr. 1 at 3. Under the business plan, the business would be conducted online, and the purchased puppies will be delivered to their "forever homes." Tr. 1 at 4. Additionally, under the business plan the puppies would be preordered to prevent the litters being bred in abundance. Tr. 1 at 4. There will be construction of a six-foot fence around the perimeter of the building to allow the dogs to go outside to use the bathroom. Tr. 1 at 5. The dogs will never be left unattended, and the Appellant consulted and will continue to consult with a state licensed veterinarian regarding the safety and medical protocols for dog kennels. Tr. 1 at 6.

         The Appellant also testified and answered questions of the Board members. The Appellant stated that he owned American Bullies for about ten years, and he and his girlfriend, Gina, own fourteen dogs. Tr. 1 at 13. The Appellant testified that he has experience raising litters which he received from his uncle, and his girlfriend is a breeder. Tr. 1 at 16. The Appellant and his girlfriend would be the only two working at the kennel. Tr. 1 at 18. The Appellant requested to have on the Property up to thirty adult dogs which he would own and another 30 puppies until sold or otherwise placed in homes. Tr. 2 at 24. The Building has drains which lead to a septic system that was approved by the Department of Environmental Management. Tr. 1 at 24. The Building will have water, electric, and plumbing. Tr. 1 at 35.

         The Board asked Caroline Lacombe, the Coventry Animal Control Supervisor, to conduct some research on the Appellant and to testify during the hearing. Officer Lacombe testified that the after talking with the Appellant's animal hospital, she found that the Appellant was a "good dog owner." Tr. 2 at 18. Officer Lacombe further testified that she spoke with Appellant and he agreed to put in higher fencing and a double gating system. Id. She requested that the Appellant provide her with an evacuation plan and the name of the transport company he will be using for his dogs. Id. Officer Lacombe further voiced her concern regarding whether Appellant and his girlfriend could be available all day long for the dogs and if that was a realistic expectation. Tr. 2 at 18-19.

         Finally, numerous members of the public testified at the two hearings. They voiced their concerns about the prospective noise, the breed of dog, preserving the rural characteristics of Zone RR-5, and the potential of the dogs escaping their enclosures. Specifically, Margaret Ferguson, who owns abutting property, testified that she was concerned because if the dogs were to escape, they would be harmed by her livestock or would harm other animals. Tr. 1 at 76. Ms. Ferguson further testified that she does not think a six-foot fence is adequate to contain the dogs as she had a dog that went over an eight-foot fence. Tr. 1 at 76-77. Moreover, William Gallery, who is an owner of a non- abutting property, testified that a kennel would change the "soundtrack of Sisson Road, " and that the barks will travel across open pastures from a hilltop. Tr. 2 at 8. Mr. Gallery further stated that thirty dogs would produce five and a half to six tons of waste a year, and he raised the question of how the waste will be handled. Tr. 2 at 8-9.

         The Board voted to reject the application at the November 1, 2017 hearing. Based on the evidence before it, the Board issued the Decision denying the Appellant's request for a special use permit. The Appellant timely filed an appeal with proper notice.


         Standard of Review

         The standard by which a Superior Court is to review a decision of a zoning board is clearly set out within the Rhode Island General Laws. Upon review, the Superior Court "shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact." Sec. 45-24-69(d). '"[A] zoning board of review is presumed to have knowledge concerning those matters which are related to an effective administration of the zoning ordinance."' Cohen v. Duncan, 970 A.2d 550, 561 (R.I. 2009) (quoting Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008)). The Superior Court may reverse or modify a decision of the zoning board only if "substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:

"(1) In violation of constitutional, statutory, or ordinance provisions;
"(2) In excess of the authority granted to the zoning board of review by statute or ordinance;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of ...

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