Town of North Kingstown v. Albert, No. 99-211-Appeal.

• Court: Rhode Island Supreme Court
• Writing for the Court: GOLDBERG, Justice.
• Citation: 767 A.2d 659
• Docket Number: No. 99-211-Appeal.
• Decision Date: 06 March 2001
• Parties: TOWN OF NORTH KINGSTOWN v. Gerry ALBERT et al.

767 A.2d 659

TOWN OF NORTH KINGSTOWN
v.
Gerry ALBERT et al

No. 99-211-Appeal.

Supreme Court of Rhode Island.

March 6, 2001.

767 A.2d 660

Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ

A. Lauriston Parks, Jamestown, for Plaintiff.

John J. Kupa, Jr., North Kingstown, for Defendant.

OPINION

GOLDBERG, Justice.

This case came before the Court on appeal from a final judgment of the Superior Court entered in favor of Gerry and Susan Albert (the Alberts or defendants) by the Town of North Kingstown (town or plaintiff). The town has asserted that the trial justice erred in denying its request to permanently enjoin defendants from completing excavation on their property to create an irrigation pond designed to provide an adequate water supply to their seventy-acre turf farm. We affirm.

Facts and Procedural History

The following facts are not in dispute. The Alberts own and operate a turf farm in the town. This property has been devoted to agriculture for forty years. Pursuant to the zoning ordinance of the Town of North Kingstown (zoning ordinance) the farm is located in a "Rural Residential Zoning District" (RR District). The zoning ordinance provides a listing of permitted and prohibited uses for each zoning district. Although Article III of the zoning ordinance permits "Agricultural and Crop Farming" in an RR District, "Earth Removal" is a prohibited use.

On or about June 8, 1998, the Alberts began developing an irrigation pond on the premises without obtaining a soil and earth removal license from the town. On November 24, 1998, John H. Lees, the town's building official, caused a notice of violation and stop work order to be served upon defendants. From this point, this dispute becomes murkier.

767 A.2d 661

As with most agricultural operations, irrigation is an absolute necessity for crop viability. This is especially true with respect to a turf farm, which requires a tremendous amount of water to sustain the vegetation. Specifically, to prevent the grass from becoming dormant and dying, a turf crop requires one inch of water every seven days. Given the volume of water necessary to maintain the turf, an inexpensive water source is critical. The Alberts have sought to develop an inexpensive and reliable irrigation supply for many years. Although they constructed a well, it ultimately was incapable of providing an adequate supply of water. During the 1980s, the town denied the Alberts access to a public water supply line because of a water pressure problem. Finally, in 1992, the Alberts applied to the Department of Environmental Management (DEM) for permission to construct an irrigation pond.¹

In 1993, estimating that they would have to spend up to ten thousand dollars for water with no assurance of adequate water pressure, the Alberts decided to focus their energy and money toward developing an irrigation pond on their property, even though it would require them to sacrifice available agricultural land. The Alberts hired an engineer to draw plans for the pond. The plans were reviewed by the chief of DEM's agriculture division and the United States Soil Conservation Service. The Alberts also met with the town planner and presented the plans to her, but, the planner indicated after their meeting that she wanted the town engineers to review the plans. Neither the planner nor the engineer ever contacted the Alberts again.

On June 8, 1998, the Alberts began excavation for an irrigation pond. Ancillary to the excavation and to avoid stockpiling the excess earth on usable farm area, the Alberts sold the valuable loam to the excavators.² Contrary to the position of the town, the Alberts maintained they never intended to turn the project into a sand and gravel operation.

In August 1998, the town manager and zoning inspector contacted the Alberts about complaints concerning dust that was originating from the farm. At this time, the town manager also questioned the Alberts about the pond excavation project. The Alberts asserted that the dust was the result of high winds during seeding, while the town avers that the excavation of the pond was the cause of the dust. The trial justice made no finding about the source of the dust.

On November 24, 1998, the town issued a notice of violation and stop work order concerning the excavation project. The Alberts ceased operations for one day, but resumed the project the next day after consultation with counsel. The town then filed a complaint in Superior Court seeking to restrain the excavation and a mandatory injunction to restore the premises.

Following a hearing in Washington County Superior Court, a bench decision was issued on January 19, 1999 denying the town's claims for relief. The trial justice found that the irrigation pond was developed to service a turf farm, and, unless the pond was developed, the farm operation would be threatened by a lack of sufficient water. The trial justice acknowledged that the Alberts had investigated other sources of irrigation and concluded that the irrigation pond was their only viable alternative. The trial justice also found, referring to G.L.1956 chapter 23 of title 2, The Right to Farm Act (Farm Act), that prohibition of the pond "would have an adverse affect on defendant's farming operation and would be adverse to the policy of the Legislature to encourage farming operations." The trial justice found that the earth removal resulting from the excavation was "merely incidental to the farming operation," and not "for the purpose of converting [the loam] into salable

767 A.2d 662

commodities." In conclusion, the trial justice held

"[a]pplying the earth removal ordinance to the instant case is contrary to legislative intent of safeguarding and encouraging farm operations. It is contrary to defendants right to use a portion of their land which is customarily incidental and subordinate to the principal use of the land."

An order was entered in accordance with the bench decision and on March 23, 1999, the trial justice granted the town's motion for entry of final judgment. A timely appeal from that judgment was taken to this Court.

As grounds for its appeal, the town raised two issues relative to an interpretation and application of the town's soil and earth removal ordinance (removal ordinance) and the zoning ordinance to the farm in light of the Farm Act. The town argued that these ordinances are unambiguous, and thus, the town is entitled to injunctive relief from the Alberts "extensive earth removal." The town also asserted that the Farm Act is limited to nuisance actions, and as such, does not invalidate the removal ordinance nor create any ambiguity. Further, the town argued that earth removal cannot be classified as a permissible accessory use to farming when it occurs in a zoning district where it is prohibited.

Standard of Review

This Court has consistently held that "[t]he decision to grant or deny an injunction is a matter within the sound discretion of the trial court." Paramount Office Supply Co. v. D.A. MacIsaac, Inc., 524 A.2d 1099, 1101 (R.I.1987). "Only when the trial court clearly abuses its discretion will this court reverse a decision denying a request for temporary or permanent injunctive relief." Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 557 (R.I.1989).

However, questions implicating statutory interpretation are questions of law and are therefore, reviewed...