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

          For Plaintiff: William Landry, Esq.

          For Defendant: Amy Hall Goins, Esq.

          For Interested Parties: Elizabeth M. Noonan, Esq.; Richard R. Beretta, Jr., Esq.; Leslie D. Parker, Esq.

          DECISION

          MONTALBANO, J.

         This matter is before the Court on appeal from an August 18, 2016 decision (Decision) of the Zoning Board of Review of the Town of South Kingstown (Board), reversing the Zoning Enforcement Officer's April 22, 2016 Notice of Violation (NOV) of the Town of South Kingstown Zoning Ordinance (Ordinance). The Board found that the challenged activities at issue qualify as permitted uses in the R-80 Zoning District. Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

         I

         Facts & Travel

         Captain Wombat, LLC (Captain Wombat) is a limited liability corporation organized under the laws of the State of Rhode Island and is the record owner of 2236 Commodore Oliver Hazard Perry Highway-a 7.46 acre parcel also identified as Assessor's Map 81-8, Lot 8 (Subject Property)-in South Kingstown. (Decision at 1.) The Subject Property is located in an R-80 Zone. Id. An R-80 Zone is a rural residential low density district in which intensive development should not occur. (Ordinance, Appendix A, Article 1, § 101.) This zone is characterized by "low-density residential development, large estates, agriculture and certain low intensity nonresidential activities incidental to a rural environment." Id. Accordingly, a livestock farm is permitted in an R-80 Zone under Use Code 02. Id. at Article 3, § 301. Conversely, Use Code 51.3 prohibits the wholesale trade of seafood products-including land based aquaculture support services-in an R-80 Zone. Id. Further, a parking lot is prohibited in an R-80 Zone under Use Code 64.1. Id.

         John Krekorian and Laura Krekorian (the Krekorians) reside on Potter Pond at 115A Succotash Road, South Kingstown Assessors' Plat 81-1, Lot 9. (Board Tr. 67-68, June 15, 2016; Compl. 1.) John Howland and Carol Howland (the Howlands) own the property on Potter Pond identified as 119 Succotash Road, South Kingstown Assessors' Plat 81-1, Lot 11. (Board Tr. 45:2, July 20, 2016; Compl. 1.) The Krekorians' and Howlands' (collectively, Appellants') parcels directly abut the Subject Property. (Decision at 2.)

         Perry Raso (Raso) is the sole member of Captain Wombat. Id. at 1. In 2002, Raso founded Matunuck Oyster Farm on a one-acre commercial aquaculture lease on Potter Pond. (Board Tr. 10, June 15, 2016). In 2007, Raso began using the dock at the Subject Property for his aquaculture operation with the permission of the then-owner, Roy Dubs. Id. at 53. Raso continued to use the dock until Mr. Dubs sold the property. Id. at 106. During this time, Raso also used an adjacent dock owned jointly by the Howlands and the Kermes. Id. at 54. He used this dock for his aquaculture operation with the permission of the Kermes. Id. at 10.

         Raso opened Matunuck Oyster Bar in 2009. Id. In 2010, Raso purchased the Subject Property from Mr. Dubs while continuing his aquaculture operation on the dock adjacent to the Subject Property. Id. at 54. Raso currently uses the dock adjacent to the Subject Property for the transportation of animals to and from the Oyster Farm, to grade the juvenile oysters, and to store farming gear. (Board Tr. 117:15-16; 90:18-20, July 20, 2016.) He also keeps a barge next to the dock, where he frequently keeps many aquaculture accessories. (Board Tr. 12-13, June 15, 2016.)

         On April 22, 2016, the Zoning/Building Official, Jeffrey T. O'Hara (O'Hara), sent a NOV to Raso regarding his use of the Subject Property. (Decision at 1.) The NOV states, "An inspection of your property has revealed that you are using a portion of your premises, specifically, the dock area as a land based aquaculture support service to your wholesale seafood product business in an R-80 Zoning District . . . in violation of Section 301, Use Code 51.3 of the South Kingstown Zoning Ordinance." NOV from O'Hara to Raso (Apr. 22, 2016). The NOV further states, "[I]t is evident that you are using another portion of the premises as a parking lot for the employees of your aquaculture and restaurant business . . . in violation of Section 301, Use Code 64.1 of the Zoning Ordinance." Id.

         Raso filed a timely appeal of the NOV to the Board on April 28, 2016. Id. at 2. The Board held an initial, advertised public hearing on June 15, 2016. Id. Raso offered legal memoranda and affidavits from Raso, Roy Dubs, Robert Rheault, Ph.D. (Dr. Rheault), and Michael A. Rice, Ph.D. (Dr. Rice). Id. The Board also heard oral testimony from Raso and Dr. Rheault. Id. The Board first inquired as to whether Raso was familiar with the Ordinance, which permits livestock as an allowed use in an R-80 Zone. (Board Tr. 11, June 15, 2016.) Raso replied in the affirmative, and the Board asked him to indicate whether, in his opinion, oysters were livestock. Id. Raso testified that because oysters are animals grown in his aquaculture operation, they are thereby livestock. Id. Raso further explained the activities performed as part of the aquaculture operation at the Subject Property: the transportation of the oysters, the sorting and grading of oysters, and the storage of equipment including a barge. Id. at 11-13. Finally, Raso articulated, based on his understanding of Use Code 51.3, that the subject of that section pertains to the processing of market-size animals, whereas Raso performs maintenance to juvenile-size oysters on the Subject Property/dock-not market-size animals. Id. at 96.

         Dr. Rheault, Executive Director of the East Coast Shellfish Growers Association, described his background as an advocate for the shellfish industry. Id. at 38. Based on his experience, research, and expertise, he opined that farmed shellfish are livestock. Id. at 42. Further, Dr. Rheault cautioned the Board that the Subject Property is not being used for wholesale sales or sorting of final product before sale so that the activities prohibited under Use Code 51.3 were not applicable to this type of use. Id. at 45. Dr. Rheault further opined that the work being performed on the dock is a Coastal Resource Management Council (CRMC) permitting issue. Id. Summarizing his opinion, Dr. Rheault stated that "the commercial farming of shellfish for sale for food conforms to every definition of agriculture, and since the crops of the shellfish farmer are animals and not plants, they must be considered livestock." Id. at 43-44. With regard to parking, Dr. Rheault suggested that if the Subject Property was considered a farm, and farming was permitted on the Subject Property, then it follows that the farm workers should be allowed to park on the Subject Property when they go to work. Id. at 50.

         Roy Dubs, the prior owner of Lot 8, through counsel for Raso, submitted an affidavit indicating that he allowed Raso to use his dock for aquaculture operations in 2007. Id. at 53. Counsel for Raso argued that because Raso's use of the dock predated the enactment of Use Code 51.3, said activity would be a nonconforming use and thus permitted under this section. Id. Counsel's primary argument, however, is that Raso's use of the Subject Property for a livestock farm is a permitted use in an R-80 Zone under Use Code 02. (Board Tr. 86:3-21, July 20, 2016.)

         Dr. Rice submitted an affidavit setting forth his opinion that he considered oyster farming a form of agriculture that should be considered an extension of Raso's land-based vegetable farming operations, and therefore is a protected form of farming under the Right to Farm Act. (Board Tr. 55-56, June 15, 2016.) Dr. Rice further stated in his affidavit that, based upon his education, training, and significant experience in aquaculture, it was his opinion that "Matunuck Oyster Farm is an agricultural operation extending out into Potter's Pond from the Matunuck Vegetable Farm and that the accommodation for the Oyster Farm employees and their vehicles is an agricultural use of . . . Raso's property." Id. at 56.

         The Board then heard testimony from Appellant John Krekorian. Mr. Krekorian^[1] testified as to his personal observations of the Subject Property. He noted that the aquaculture activity on the dock occurs daily and that he can easily hear the operations taking place from his home. Id. at 72. He further testified that the operations on the dock have intensified since Raso purchased it in 2010. Id. at 74-75. Mr. Krekorian stated that he, along with several other families, including the Howlands, funded the 2007 Conservation Easement in favor of the South Kingstown Land Trust, which does permit the owner of the Subject Property to conduct farming operations and the raising of livestock. Id. at 80-81. Mr. Krekorian clarified that the Conservation Easement was set up "to protect the viewscape [sic] of the field." Id.

         Counsel for Raso asked the Board to allow additional testimony by Dr. Rheault regarding the concept of shellfish processing. Id. at 90. Dr. Rheault stated that the activities at the Subject Property constitute the sorting of juvenile oysters as part of the farming process, and that these activities did not involve harvesting. Id. at 91. Further, Dr. Rheault stated that, based on his observations, none of the end-use-to-market activities prohibited in Use Code 51.3 occur at the Subject Property. Id. at 93-94.

         The Board continued the June 15, 2016 hearing to July 20, 2016. (Board Tr. 3:1-9, July 20, 2016.) In the interim, the Board received supplemental memoranda from Raso and the Appellants, as well as a memorandum from its own counsel. (Decision at 3.) Counsel for the Appellants called Laura Krekorian as their first witness. (Board Tr. 9:20-23, July 20, 2016.) Mrs. Krekorian testified that during 2009 and prior thereto, all of the activity on the dock at the Subject Property was water-based. Id. at 12:11-15. One member of the Board then sought to keep all questioning pertinent to land-based activities, rather than to the dock, as all activities below the Mean High Water line are subject to CRMC jurisdiction. Id. at 16:10-23. Mrs. Krekorian further testified that a road was constructed from the dock to Raso's home on the Subject Property and that she witnesses two to three trucks travel on the road down to the dock each day. Id. at 21:9-13. Mrs. Krekorian further testified that loaded trucks with workers go back and forth from the dock area to the road early in the morning-"[s]ometimes they stay; sometimes they don't." Id. at 27:18-23. She has witnessed the cleaning of mats on the dock and heard noise from the tumbling machine on the dock. Id. at 28:3-7. Mrs. Krekorian concluded her testimony by mentioning that the "most offensive" issue is the tumbler on the dock and the lights and noise associated with that activity. Id. at 29:23-24.

         O'Hara briefly clarified the basis of his issuance of the NOV to the Board. Id. at 38:3-15. ...