For
Plaintiff: Ryanna Tyler Capalbo, Esq.; Andrew R. Bilodeau,
Esq.
For
Defendant: Jane Gurzenda, Esq.
DECISION
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.
I
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.
II
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 ...