JOHN KREKORIAN, LAURA KREKORIAN, JOHN HOWLAND AND CAROL HOWLAND, Appellants,
ZONING BOARD OF REVIEW OF THE TOWN OF SOUTH KINGSTOWN, ROBERT TOTH, In His Capacity as Chairman of the Zoning Board of Review of the Town of South Kingstown, DOUGLAS BATES, JOHN BERNARDO, ROBERT CAGNETTA, RICHARD JURCZAK, STEPHANIE OSBORN and IGOR RUNGE, In Their Capacities as Members of the Zoning Board of Review of the Town of South Kingstown, Sitting as the Planning Board of Appeal of the Town of South Kingstown; and CAPTAIN WOMBAT, LLC, Appellees.
Plaintiff: William Landry, Esq.
Defendant: Amy Hall Goins, Esq.
Interested Parties: Elizabeth M. Noonan, Esq.; Richard R.
Beretta, Jr., Esq.; Leslie D. Parker, Esq.
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.
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
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.)
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.
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.)
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.
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.
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.
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.)
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.
Board then heard testimony from Appellant John Krekorian. Mr.
Krekorian 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.
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
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.
briefly clarified the basis of his issuance of the NOV to the
Board. Id. at 38:3-15. ...