Charlestown Farms, LLC v. Town of Charlestown Zoning Bd. of Review

1

CHARLESTOWN FARMS, LLC and PECKHAM CHARLESTOWN FARMS, LLC, Plaintiffs, v. TOWN OF CHARLESTOWN ZONING BOARD OF REVIEW; RAYMOND DRECZKO, JR., JIM ABBOTT, SHEILA M. ANDREW, ROBIN W. QUINN, and LARA WIBETO all solely in their capacities as Members of the Town of Charlestown Zoning Board of Review; TOWN OF CHARLESTOWN, and IRINA GORMAN in her capacity as Treasurer of the Town of Charlestown, Defendants.

C. A. No. WC-2021-0434

Superior Court of Rhode Island, Washington

December 21, 2023

For Plaintiff: M. Hamza Chaudary, Esq., Jeffrey K. Techentin Esq.

For Defendant: Wyatt A. Brochu, Esq.

DECISION

TAFT-CARTER, J.

Before the Court for decision is Charlestown Farms, LLC (Charlestown Farms) and Peckham Charlestown Farms, LLC's (Peckham Charlestown Farms) appeal of the Town of Charlestown Zoning Board of Review's (Zoning Board) affirmance of a Notice of Violation and Determination Letter issued by the Building/Zoning Official (Building Official). Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I Facts and Travel

Peckham Charlestown Farms owns 565 Alton Carolina Road in Charlestown, Rhode Island (the Property). (Zoning Appeal Application #1557 for Charlestown Farms dated July 29, 2021 (Application) at 1.)^[1] Charlestown Farms conducts business on the Property pursuant to a leasehold interest between Peckham Charlestown Farms and Charlestown Farms. (Mem. of Law in Supp. of Pls.' Appeal of the Zoning Bd.'s Decision (Appeal) 2.) The Property is identified by the Charlestown Tax Assessor as Plat 24. Id. Plat 24 is comprised of approximately 119 acres and divided into three lots: Lot 3 (approximately 26 acres), Lot 4 (approximately 49 acres), and Lot 4-1 (approximately 43.55 acres). (Submittal #15: Title Run.)

As background, Lot 4 was created in 1951 by a deed conveyance. (Zoning Board Decision (Decision) 3.) Charlestown Farms purchased Lot 4 on March 15, 2019 from Morrone Land Company LLC/Morrone Trucking Sand and Gravel, Inc. (MTSG). (Submittal #13: Deeds.) Although the 1974 Town of Charlestown Zoning Ordinance, Article IV, § 218 (1974 Ordinance) prohibits "extractive industry," Lot 4 was grandfathered in as a pre-existing legal nonconforming use. (Submittal #4 Zoning Certificate.)

During a February 11, 2020 inspection of Lot 4, the Building Official reported that Charlestown Farms had a newly installed 20.7 foot by 93 foot reinforced concrete equipment pad for the installation of an electric wash plant and associated conveyor systems.^[2] Following the inspection, the Building Official requested information regarding Charlestown Farms' plan-specifically, information about the electric washer and water pump system's noise levels; the area and extent of the proposed extraction of material; and a description of the past, current, and proposed extraction activity with specific evidence that the proposed activity will not have a substantially different or adverse impact on the neighborhood. (Submittal #8: E-mail Correspondence.)

On March 3, 2020, Thomas Miozzi, on behalf of Charlestown Farms, responded with the following: a 2007 letter from Timothy Behan (2007 Behan Letter) of TJB Engineering stating that MTSG has been conducting a gravel extraction operation on Lot 4, and MTSG will be installing a sand washing facility to remove fines from the on-site sands in the "immediate future"; specifications on the wash plant; a report on decibel levels for the water pump; an area map; and a list of the activities that have been performed in the past and continue to be performed on the Property. See id.; Submittal #9: 2007 Behan Letter. The list stated the following:

"[b]lasting & crushing of rock / ledge"; "[hammering of oversized blasted rock / ledge"; "[s]and excavation (drag Line)"; "[w]ashing of sand"; "[l]oading of trucks"; "[s]ale of mined & excavated material"; "[processing of broken asphalt & concrete into usable material"; "[s]torage (outside) of any and all equipment used in the above processes"; and "[stockpiling of processed materials." (Submittal #8: E-mail Correspondence.)

Lot 3 was created in 1893 by deed conveyance. (Decision 3.) On March 15, 2019, Charlestown Farms purchased Lot 3 from Pawcatuck River Properties, LLC. (Submittal #13: Deeds.) Lot 4-1 was originally part of Lot 4 and created by deed conveyance in 1987. (Submittal #15: Title Run; Decision 3.) Charlestown Farms purchased Lot 4-1 on May 14, 2019 from Robert W. Kenyon. (Submittal #13: Deeds.)

The parties dispute how the lots have been utilized over time. Charlestown Farms has presented evidence that all three Lots were used for a sand and gravel operation dating back to 1950 (Lots 4 and 4-1) and 1983 (Lot 3). See Exhibit C: Kenyon Aff Charlestown Farms asserts that "Lots 3 and 4-1 previously had mining roads, been cleared of trees in certain areas, contained extraction pits, and there has never been, on either parcel, an overt abandonment of the [extractive [industries use." Appeal 3; see also Exhibit B: 1939 Aerial Photograph. Additionally, Charlestown Farms asserts there is evidence of quarry roads on the lots prior to 1974. See 1962 Aerial Photograph; 1972 Aerial Photograph. However, the Town of Charlestown asserts that Lots 3 and 4-1 have been forested lots with some wetland areas since 1939. (Mem. to Zoning Board dated Aug. 20, 2021 at 2.) Further, the Town of Charlestown asserts that there was no evidence of mining roads, extraction, or quarrying roads on Lot 3 until sometime between 1985 and 1988, and on Lot 4-1 until spring 2021. Id. The Building Official further asserts that a pond and/or water-a required feature to wash sand-did not appear on Lot 4 until 2007. Id.

A July 14, 2021 Notice of Violation

On July 14, 2021, the Building Official issued a Notice of Violation (NOV) to Charlestown Farms. (Submittal #1: Building/Zoning 04-21.) The NOV stated that the newly constructed, reinforced concrete equipment pad located on Lot 4 was constructed without the required building permits in violation of G.L. 1956 § 23-27.3-113.1. Id. The NOV ordered that "all work on said structure must [cease and desist] immediately until all required Building Permits are obtained from the Charlestown Building Department." Id. Further, the NOV required that "all applicable inspections must be performed prior to the use and/or occupancy of said new construction." Id.

B July 14, 2021 Determination Letter

Also on July 14, 2021, the Building Official issued a "Determination Letter"^[3] to Charlestown Farms. (Submittal #1: Building/Zoning 03-21 (Determination (Det.) Letter) 1.) The Building Official agreed with Charlestown Farms' contentions, made in the March 3, 2020 correspondence, that it performed blasting and crushing of rock, hammering of rock/ledge, sand excavation, loading of trucks, sale of mined and excavated material, outside storage of equipment, and stockpiling of processed materials. Id.; see Submittal #8: E-mail Correspondence. However, the Building Official took issue with two of the activities, namely: "'[processing of broken asphalt & concrete into usable material" and "'washing of sand:" (Det. Letter 1.) (emphasis in letter). The Building Official explained that:

"the Town has no evidence of any processing of off-site material ever taking place at [Plat 24] and the washing of sand appears to have begun at some point during 2007, an illegal expansion of use at the time that would have required a Special Use Permit of which one has not been issued." Id.

The Building Official further explained that Charlestown Farms had not been issued approvals or permits for their portable pumps and generators to be used for the wash plant. Id.

Regarding Lot 4, the Building Official acknowledged the Property's current use as an "Extractive Industry is a legal non-conforming use[.]" Id. As such, the Building Official stated that Charlestown Farms could continue extraction activities on other parcels if "it can be determined that such intent existed prior to adoption of the restrictive zoning ordinance." Id. The Building Official confirmed that excavation activities were taking place on Lot 4 prior to the Town of Charlestown's Zoning Ordinance (Ordinance). Id. However, the Building Official explained, "[t]he additional use of the property for the washing of sand, . . . processing of broken asphalt and concrete, the new permanent power service equipment, and installation of new structures, all would have a substantially different and adverse impact on the neighborhood." Id. The Building Official concluded that such uses were "an expansion/intensification of a nonconforming use" and "require[d] a Special Use Permit from the Zoning Board of Review pursuant to Article VI, Section 218-39D of the Ordinance."^[4] Id. In conclusion, the Building Official stated that, in order for Charlestown Farms to obtain building permits for the proposed expansion, they must obtain Development Plan Review approval and a Special Use Permit by the Zoning Board. Id. at 2.

Regarding Lots 3 and 4-1, the Building Official explained that Lot 3 contained "encroachment of extraction activity" and "extraction equipment" and Lot 4-1 contained "significant land clearing." Id. The Building Official stated that extractive industries are permitted to "continue on the site of their original extraction and may only be permitted to expand to other real property by Special Use Permit if the property had been acquired prior to the effective date of the Ordinance adopted July 8, 1974." Id; see also Ordinance, Article VI, § 218-37(I)(14). Additionally, extractive industry activity is prohibited "on all parcels within the Town of Charlestown unless it is established that said use pre-existed zoning as adopted on July 8, 1974 or established by Special Use Permit between July 8, 1974, and ...