R.I. Grows LLC v. Booth

Decision Date11 August 2022
Docket NumberWC-2022-0057
PartiesRHODE ISLAND GROWS, LLC; RICHARD J. SCHARTNER; and NORMAN SCHARTNER, Appellants, v. RICHARD BOOTH, in his capacity as a member of the Exeter Zoning Board of Appeals; THOMAS MCMILLIAN, in his capacity as a member of the Exeter Zoning Board of Appeals; RICHARD QUATTROMANI, in his capacity as a member of the Exeter Zoning Board of Appeals; DR. SUSAN LITTLEFIELD, in her capacity as an alternate member of the Exeter Zoning Board of Appeals; LOREN ANDREWS, in his capacity as a member of the Exeter Zoning Board of Appeals; TIMOTHY ROBERTSON, in his capacity as a member of the Exeter Zoning Board of Appeals; and SUSAN FRANCO-TOWELL, in her capacity as an alternate member of the Exeter Zoning Board of Appeals, Appellees.
CourtSuperior Court of Rhode Island

For Plaintiff: Michael A. Kelly, Esq., Dane E. Ardente, Esq. Michael Resnick, Esq.

For Defendant: James P. Marusak, Esq. Stephen J. Sypole, Esq.



Before the Court for decision is a zoning appeal brought by Rhode Island Grows, LLC, Richard J. Schartner, and Norman Schartner (collectively, R.I. Grows) from the February 7, 2022 Decision (the Decision) of the Town of Exeter's (the Town) Zoning Board of Review (the Zoning Board). Jurisdiction is pursuant to G.L. 1956 § 45-24-69.

I Facts and Travel

In the Decision, the Zoning Board upheld the Town Zoning Inspector's (the Zoning Inspector) October 6, 2021 Notice of Violation and Order to Cease and Desist (the Order) enjoining R.I. Grows from any further construction on Town Lots 52-1-4, 52-1-5, and 52-1-6 (the Property) due to multiple violations of the Town Zoning Code (the Zoning Code). Compl. ¶ 38; see id. Ex. I (Decision) and Ex. F (Order). R.I. Grows seeks to build an agricultural greenhouse facility (the Greenhouse) that will allow it to engage in Controlled Environmental Agriculture (CEA) on the Property. (Compl. ¶ 16.) The parties' dispute centers around whether construction of the Greenhouse must comply with the procedural and substantive requirements of the Zoning Code. See Appellants' Mem. Law Supp Appeal Compl. (Appellants' Mem.) 2-3 Defs./Appellees' Mem. Law Opp'n Appeal Compl. (Defs.' Mem.) 2-3.

On August 20, 2021, the Zoning Inspector sent a letter to R.I Grows through its principals, Richard and Norman Schartner (the Schartners) (R. at 48). After stating that two years had passed since counsel for R.I. Grows had first discussed the Greenhouse with the Zoning Inspector, the Zoning Inspector noted that construction on the Greenhouse had begun and asked why R.I. Grows believed that its "CEA" project (the Project) could proceed without first obtaining zoning approval from the Town. Id. The Zoning Inspector stated that R.I. Grows had sought Town approval for the solar accessory elements of the Greenhouse, which the Zoning Inspector interpreted as an acknowledgment of the Town's regulatory authority. Id. The Zoning Inspector asked for a timely response and noted that failure to respond with an adequate justification could result in an order to cease and desist. Id.

On August 31, 2021, R.I. Grows responded to the Zoning Inspector by requesting an opportunity to further discuss the Project. (R. at 50.) While recognizing the Town's regulatory authority over the construction of ground based solar arrays, R.I. Grows disputed the assertion that its current activities on the Property-which it described as "agricultural activities[,] primarily the construction of a greenhouse for the purpose of plant agriculture"-constituted a "CEA Project." Id. R.I. Grows also asserted that agricultural activities were permitted on the Property under § 45-24-37(g) and noted that the Property already contained "numerous greenhouses[,] . . . many of which [had] been in place for decades." Id.

On September 8, 2021, representatives from R.I. Grows met with the Zoning Inspector to discuss the Greenhouse. (Order 2.) According to the Order, R.I. Grows' position at that meeting was that the entire Greenhouse, "less the solar field, was exempt from Town oversight, whether it be Zoning, Planning, or Building[.]" Id. R.I. Grows indicated that it based this position on information it had received from "Mr. Ken Ayers of RI DEM Agriculture, the RI Farm Bureau, and other 'State' sources." Id. In response, the Zoning Inspector asked that R.I. Grows provide documentation to support its views. Id. Acknowledging R.I. Grows' statement at the meeting that § 45-24-37(g) describes agriculture as a permitted use, the Zoning Inspector responded in the Order by noting the distinction under state zoning law between a use and a structure. Id. at 1-2; see § 45-24-31(63) ("Structure. A combination of materials to form a construction for use, occupancy, or ornamentation, whether installed on, above, or below the surface of land or water."); § 45-24-31(65) ("Use. The purpose or activity for which land or buildings are designed, arranged, or intended, or for which land or buildings are occupied or maintained."). The Zoning Inspector also "made [his] position clear that a greenhouse constructed with a steel frame and rigid glass panels was indeed a structure." (Order 1.)

After the agreed-upon deadline of September 30, 2021 passed without R.I. Grows producing the requested documentation, the Zoning Inspector issued the Order to Cease and Desist on October 6, 2021. Id. at 2. In the Order, the Zoning Inspector found R.I. Grows in violation of § 1.6.A.8 of Appendix A of the Zoning Code, which states that "[n]o building or structure shall hereafter be erected, enlarged or relocated, and no nonstructural use shall be initiated until a zoning certificate has been issued by the zoning inspector indicating that the proposed use and structure conforms to the provisions of this ordinance." Id. (quoting Zoning Code, Appendix A, § 1.6.A.8). The Zoning Inspector also found R.I. Grows in violation of § 2.5.1.A of Appendix A of the Zoning Code, which states that "[d]evelopment plan review is required for all permitted uses other than one or two-family dwellings or accessory buildings." Id. (quoting Zoning Code, Appendix A, § 2.5.1.A). The Order also states that the Greenhouse's accessory "'Solar energy facilities' may require a zoning certificate," but because "no presentation has been made to the Zoning Inspector, this [was] yet to be determined." Id. Similarly, the Order states that R.I. Grows "may" be in violation of the Zoning Code's dimensional regulations, including "Maximum Lot Coverage" and required setbacks, but that the Greenhouse's compliance with the dimensional regulations could not be evaluated without the site plans-which had not been submitted to the Zoning Inspector. Id. R.I. Grows appealed the Order to the Zoning Board. (Compl. Ex. G (Zoning Appeal).)

On January 13, 2022, R.I. Grows appeared before the State Building Code Standards Committee (SBCSC) to appeal a separate stop-work order issued by the Town's Building Official against the Greenhouse for the lack of a building permit. See Appellants' Mem. Ex. E (SBCSC Decision); Compl. Ex. H (Hr'g Tr.) 5:22-6:8. In the SBCSC Decision, the SBCSC accepted R.I. Grows' argument that while § 3112 of the State Building Code would normally require a permit for the erection of a "fabric structure," exceptions are made under § 3112 for agricultural and horticultural greenhouses that are used primarily for growing. SBCSC Decision 2; cf. Appellants' Mem. Ex. F at 2 (State Building Code § 3112) (defining fabric structures as "structures utilizing wood, metal or plastic frames and covered with cloth, canvas, glass or plastic material, excluding tents, and furnishings such as umbrellas, awnings and canopies or portable shade canopies"). The SBCSC also heard the uncontradicted testimony of "Jason Pannone, project manager of Bentley Builders[,]" that "they had not commenced with any work that would require the issuance of a plumbing, mechanical, or electrical permit at the time of the stop work order." (SBCSC Decision 2.) Accordingly, the SBCSC vacated the stop-work order after finding that:

"1. the structure that is the subject of the stop work order is in fact a horticultural and/or agricultural greenhouse and does meet the definition of a fabric structure as defined by SBC-1 § 3112.1;
"2. that said structure falls within exception # 1 of § 3112.2 for agricultural and horticultural greenhouse[s] used primarily for growing wherein a building permit is not required;
"3. that exception # 1 is predicated on the structure being used primarily for growing, not exclusively; and,
"4. that none of the mechanical, plumbing, or electrical components of the project have begun and that the Applicant has acknowledged that the appropriate permit(s) will be obtained at that juncture." Id. at 2-3.

January 13, 2022 was also the date on which the Zoning Board held a public hearing (the Hearing) on R.I. Grows' appeal of the Order. See Hr'g Tr. 6:1-6. At the Hearing, counsel for R.I. Grows referenced the SBCSC's decision and called Fred Laist (Laist), Chief Financial Officer of R.I. Grows, to testify that the "primary purpose and reason" for the construction of the Greenhouse "is agricultural, horticultural, and farming purposes." Id. at 14:18-15:10. The Zoning Inspector, when called as a witness by the Zoning Board, testified to his belief that R.I. Grows could not construct the Greenhouse without first obtaining a zoning certificate because the Greenhouse is a "structure" as defined by state law. Id. at 45:2-22.

On cross-examination by counsel for R.I. Grows, the Zoning Inspector stated that he had only issued a zoning certificate for one other greenhouse during his seventeen-year tenure because he did not issue zoning certificates for "temporary" structures, but only for "permanent" struc...

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