Little Compton Setting Dangerous Precedent Concerning ‘Agricultural’ Activities

By LARRY ANDERSON

LITTLE COMPTON, R.I. — Tom Dalglish’s thorough April 27 Sakonnet Times article efficiently describes the Zoning Board of Review’s recent decision to grant a variance exempting Carolyn’s Sakonnet Vineyard from a zoning ordinance provision requiring the pavement of parking areas consisting of 10 or more spaces.

Dalglish appropriately emphasizes one of several elephants in the room during the April 19 proceedings: namely, the Zoning Board of Review’s failure to determine whether concerts and weddings, the uses that will be served by the three parking areas designed to provide space for 446 cars, are permitted by the town’s zoning ordinances.

Current Little Compton zoning/building official George Medeiros was hired by the Town Council last fall to replace Bill Moore, who had resigned. In a Nov. 13, 2016 letter addressed to the council, Medeiros wrote weddings and concerts are not permissible uses under the ordinance.

“[I]t is my opinion that the winery business is allowed at 162 West Main Road as a matter of right, but the weddings and concerts are not accessories [sic] uses to, and required for, the operation of the principal use and therefore are not allowed,” he wrote.

Citing a 2011 “Confirmation of Historical Winery Uses” issued by the Town Council, he added that “it is my opinion that the proposed use of the property would be an intensification of any pre-existing non-conforming use that may have existed and therefore, requires relief from the Zoning Board.”

In Medeiros’s opinion, the wedding and concert activities are either prohibited outright or, if they are a “pre-existing non-conforming use,” they would need relief from the Zoning Board of Review (ZBR), in light of the obviously expanded and intensified nature of the vineyard’s proposed activities.

The vineyard didn’t seek zoning relief for such intensification, as Medeiros advised. In fact, the vineyard’s attorneys simply assert, for a variety of reasons, that they are entitled to pursue those activities as a matter of right.

In any event, the ZBR on April 19 refused to directly address the question of legally permissible principal uses. When a ZBR member sought guidance from the town solicitor about whether the board had jurisdiction to address the question, the solicitor offered no substantive response. Medeiros’s letter was “just another opinion,” he said.

Christopher D’Ovidio, the lawyer representing vineyard neighbors Brian and Natalie Eliason and abutter Christina Carlson, told the ZBR that the vineyard’s variance request was “putting the cart before the horse. ... You can’t approve a parking lot for a use that’s not allowed.” (Disclosure: I have worked closely in support of D’Ovidio and have helped to raise money to pay his legal fees.)

Instead, the ZBR passed the buck on this fundamental question back to the Town Council, where, in fact and in fairness, it ultimately belongs. As Dalglish reported, the ZBR appended to its vote a statement that it made its decision “without endorsing or otherwise supporting parking for weddings or concerts or other non-agricultural uses.”

How did we get here?
As a Little Compton resident who has closely followed and participated in vineyard-related proceedings for almost two years, I have watched as the Town Council and the solicitor have, in my opinion, evaded their responsibility for the consequences of the legal confusion they are principally responsible for creating.

They have failed to insist on the strict and even-handed enforcement of the town’s zoning ordinance. The precedents that may be set now, as town and state boards are steamrolled, one after the other, by the aggressive tactics of the vineyard’s attorneys, can have significant and detrimental consequences for the entire town.

Carolyn Rafaelian, who controls the vineyard through at least two limited liability companies, hasn’t appeared at public meetings since her purchase of the property in 2012. The major enterprise she controls, the jewelry and lifestyle company Alex & Ani, offers up this “company ethos” on its website:

“We create meaningful, eco-conscious jewelry and accessories to positively empower and connect humanity. We share a passion for the wellbeing of our planet, our communities, and our individual paths. ALEX AND ANI products are proudly designed and crafted in America and made with love.”

Ms. Rafaelian’s bareknuckled legal and business practices in Little Compton provide a means by which to measure the sincerity of such self-satisfied slogans and representations.

On May 4, the Town Council will consider whether to issue entertainment licenses to the vineyard for the rest of 2017. As soon as the ZBR granted its variance, the vineyard resubmitted a license application, a version of which the council had previously rejected “without prejudice” on Nov. 17, 2016, “until issues raised by the Zoning Officer in his opinion letter can be settled.”

The license application consists of some 300 pages of documents, including a 50-page legal memo asserting, among many other things, that Medeiros’ opinion should be ignored. In effect, the vineyard demands that the town issue licenses for the full slate of its requested schedule of events, including 31 concerts on the conservation-restricted Lot 8-9 and 12-14 weddings on Lot 8-10.

As a consequence of failing to issue the licenses, the vineyard warns, “it would have myriad claims, including, at a minimum, procedural and substantive due process claims under the Rhode Island and United States constitutions, equal protection claims under the Rhode Island constitutions and claims under the Rhode Island Equal Access to justice for Small Businesses Act.”

In other words, if the vineyard isn’t given what it demands, it threatens to sue the town — as it has since the vineyard’s current attorneys arrived on the scene just a year ago.

A fundamental question
The Town Council, in denying the vineyard’s entertainment license last November, explicitly required that the vineyard address and resolve the issues raised by Mr. Medeiros. Will the council now stick to its guns? Or will it crumple under the threat of vineyard lawsuits? And what will the town solicitor advise the Council to do?

In a declaratory judgement issued last November, in which the vineyard and the Stone House successfully thwarted appeals by local residents of zoning certificates issued by the building/zoning official, Judge Brian Stern nonetheless supported the principle established by other judicial precedents that it is “up to a city or town, through its solicitor, [to] bring suit in superior court ‘to restrain the violation of, or to compel compliance with, the provisions of its zoning ordinance.’”

Moreover, Stern wrote, a “legally binding acknowledgment of a nonconforming, preexisting use may only be issued by the Court’s declaration” — not by a zoning official, a zoning board of review or a town council.

It’s therefore the town solicitor’s responsibility, as the lawyer serving the town, to make a legal judgment about what the zoning ordinance says and means. The assertion that Medeiros’ Nov. 13, 2016 letter to the council is “just another opinion” isn’t a sufficient answer to assist the council in its duty to “compel compliance with” the zoning ordinance.

It’s the council’s responsibility to demand that he advise whether members should support and enforce their current zoning official’s clearly stated opinion. Otherwise, town residents are left with virtually no legal recourse with regard to enforcement of the town’s zoning ordinance.

The town solicitor has been wearing two legal hats throughout recent proceedings involving the vineyard. He has represented both the Town Council and the ZBR on two legally separate but practically and politically intertwined issues — i.e., the variance request and the entertainment license request. At a council meeting on Dec. 22 of last year, by which time the vineyard had submitted its variance application, I heard the solicitor explicitly describe a scenario where the Little Compton Agricultural Conservancy Trust would reach some kind of agreement with the vineyard, the ZBR would grant some form of zoning “relief,” the council could then grant an entertainment license, and therefore the vineyard wouldn’t sue the town.

The solicitor, in other words, at a meeting of one of the boards he represents, the Town Council, was effectively prejudging the possible decision of another board he represents, the Zoning Board of Review. Even if this scenario had been presented as a hypothetical situation, which it wasn’t, it reflects the script that has since been followed by town officials.

Background and history
Town records, including correspondences and Town Council minutes, demonstrate that the prior owners of the vineyard were aware of and had been warned about the questionable legality of some of their non-agricultural activities.

In 1992, the building/zoning official at the time, George Flanagan, and the town solicitor at the time, Joseph Palumbo Jr., unequivocally informed the prior owners of the vineyard that “concerts, weddings, and the like” were not consistent with the zoning ordinance. In October of that year, the vineyard informed Flanagan that it had ceased making new commitments for weddings and “the use of the winery grounds.”

The next month, the majority of the Town Council at the time — all Democrats, for the one and only time in the history of Little Compton — were ousted. The newly elected council, with a Republican majority, unceremoniously replaced the building official. Town solicitor Richard Humphrey was returned to office, in which he had previously served. He has held the office of solicitor continuously since then. In any case, efforts to follow up on enforcement of the 1992 directives to the vineyard ceased.

I have reviewed all the minutes of the Town Council from 1987, the year the prior owners, doing business as Sakonnet Vineyards LP, acquired the property, through 2014, by which time the Rafaelian entities had acquired the property. The first year for which the vineyard sought an annual entertainment license was 2008 — at just the time that it sold conservation restrictions on much of the property for $2.25 million.

Prior to that, the council’s records show there were occasional concerts at the vineyard. But in these cases, the sponsoring organizations, usually nonprofits such as the Little Compton Community Center, customarily acquired one-day entertainment licenses for concerts that were almost always benefit events.

In March 1997, the vineyard wrote the council that “they intend to experiment with a few weddings this summer.” But the vineyard, after agreeing not to pursue weddings in 1992, apparently didn’t request until 2011 any opinion or authority from the town under the zoning ordinance to serve as a commercial wedding venue on a regular basis.

By the late 2000s, Sakonnet Vineyards LP made various efforts to sell the vineyard or portions of the property it comprised. A subdivision of the northern and eastern vineyards, by a new and separate entity, Sakonnet Vineyards LLC, created four lots, overlooking the Watson Reservoir, which were marketed, without success, at substantial asking prices. As noted, in early 2008 Sakonnet Vineyards LP sold a conservation restriction — “deed to development rights” — to the Little Compton Agricultural Conservancy Trust and the Rhode Island Agricultural Lands Preservation Commission, with additional financial support from the U.S. Department of Agriculture.

By 2008, of course, the bottom dropped out of the economy and the real-estate market, no doubt creating additional financial pressures on the operation. For a time, the entire vineyard was being marketed, including the vineyard/winery operation, the conservation-restricted lots and the residential lots.

But attempts to finance and sell the property ran into another obstacle during this financially difficult period. Financial institutions apparently raised questions about whether some of the activities either taking place at the vineyard or which the owners planned, as justifications to support the value of the business and its real estate, were on sound legal footing.

Thus, in summer 2011 the vineyard owners and their attorney at the time appeared before the Town Council and the town solicitor — all of whom now serve — seeking some form of relief. As documented in the council’s June 23, 2011 minutes, the vineyard’s owners first “requested the town to consider amending the town zoning ordinance to include a definition of ‘winery’ and/or ‘vineyard.’ Due to the lack of a definition financial institutions are reluctant to grant loans.”

That is, the zoning ordinance didn’t — and still doesn’t — distinguish between wineries/vineyards and other forms of agricultural uses in residential zones. The zoning ordinance didn’t — and still doesn’t — specifically authorize weddings and concerts as “agricultural” uses.

Rather than amending the zoning ordinance to clarify such distinctions, as the vineyard originally proposed, the town solicitor at the same meeting “suggested a zoning recognition letter be drafted to be signed by the Council, the Solicitor and the Zoning Official. He believes this will be simpler and may satisfy the financial institutions.” The vineyard’s attorney “was asked to confer with the financial institutions and his clients then to return with a proposal.”

The result at the council’s July 21, 2011 meeting was the adoption of the so-called “Confirmation of Historical Winery Uses.” This legally dubious document was thus proposed by the town solicitor, drafted by the vineyard’s attorney and approved by the Town Council, with the documented caveat that it is “not a declaration of compliance.” In fact, the Town Council has no legal authority to render binding opinions concerning zoning compliance. However, the council, through the solicitor, is authorized to enforce the zoning ordinance through court action.

The minutes for the July 21 meeting also document that the council president “expressed a desire to render this statement without declaring whether or not it meets Zoning. He believes the declaration of zoning compliance should be rendered by the Zoning Official, William Moore.”

Taking his cue from the council, Moore on Aug. 24, 2011 promptly issued a “zoning certificate” to the vineyard, stating, among other things, that because the vineyard had a town entertainment license and a state winery license “larger wedding type functions” were allowed on the property and were in compliance with the zoning ordinance. The logic of this zoning certificate, which is directly contradicted by his successor’s more recent opinion, is baffling.

In any case, the 2011 Confirmation of Historical Winery Uses provides a fundamental basis for the vineyard’s claim that weddings and concerts are and have been legally and historically permitted on the property. Indeed, it was the only document the vineyard submitted in support of such uses as part of its recent variance application to the ZBR. In the confirmation, neither the Town Council nor the vineyard provided any statistical or documentary evidence demonstrating the numbers, types, sponsors, attendance or nature of such purportedly “historical” activities.

Now the Town Council and the town solicitor are faced with consequences of their own 2011 decisions and actions. The perhaps well-intentioned document they approved in 2011, for the purported reason of assisting the then-vineyard owners to secure financing, is being exploited by the current owners to expand and intensify activities that the current zoning official says are illegal.

In an attempt to save face for their past actions, will the council and the solicitor now accede to the vineyard’s demands for entertainment and wedding activities which, legal or not, never approached the frequency, intensity or impact the vineyard has recently pursued under the Rafaelian-controlled businesses? Or will they support the experienced zoning official they hired only a few months ago, as well as the many local residents and property owners who have been directly and detrimentally affected by the vineyard’s activities?

Tax breaks
There’s an additional consideration that hasn’t been much discussed during the controversy surrounding the vineyard. The vineyard, like many property owners in town, benefits from property-tax relief for portions of the property that are conserved and/or used for active agriculture. The vineyard benefits in two ways on many of the 14 separate lots that comprise the entire property of more than 160 acres.

First, the vineyard’s lots subject to permanent legal protection for conservation purposes are assessed at a reduced rate. Second, some of the lots are taxed at a reduced rate through the state-authorized Farm, Forest and Open Space (FFOS) program, on land that is maintained in one of those three conditions. Many Little Compton property owners, including my wife and I, have enrolled in this program. Property owners aren’t obligated to conserve such land in such uses permanently. They can withdraw from the program at any time, although they may be liable for back taxes depending upon how long they have been enrolled.

These programs and property-tax benefits have been a boon to land conservation in Little Compton. But they can be subject to abuse, if property owners, local assessors and state regulators of the FFOS program don’t scrupulously follow and fairly apply assessment and taxation policies.

Consider the vineyard’s current assessments and property taxes on two of the lots on which it proposes to establish permanent parking areas for some 317 cars. On a busy concert night, when the parking lots on the two conserved lots are filled to capacity, the vineyard, at the $10 per car rate they charged last summer, could well be receiving more than $3,000 in revenues per night for parking alone. As noted, these two lots are currently subject to a conservation easement, for which the assessors, as they do for other similarly conserved lots throughout town, assess such lots at a lower rate, based on their purportedly extinguished potential for future development.

However, those two lots are also enrolled in the state FFOS program. On these two lots, the vineyard appears to receive the lowest possible assessment classification provided to actively farmed acreage, based on the vineyard’s annual representations that these are actively cultivated vineyard lands. On 8.84-acre lot 8-6 (150 parking spaces), the vineyard pays $32.89 in property taxes annually on an assessed value of $5,800. On 3.72-acre lot 8-9 (167 parking spaces) the vineyard pays $180.31 annually on an assessed value of $31,800, $2,400 of which is attributed to the land, $29,400 to “improvements” in the form of the bandstand.

The rest of the town’s property owners, especially those who don’t benefit from such programs and assessments intended to support land conservation, are in effect subsidizing the vineyard’s transformation of these properties into commercial enterprises that have an increasingly tenuous connection to genuine agriculture and conservation.

I am not opposed to legitimate agricultural activities, including well-regulated activities consistent with the town’s zoning ordinance, in order to sustain the viability of farms, wineries and other such businesses that are essential to sustaining the agricultural economy and rural character of our community.

Farming is a challenging business. Other Rhode Island communities are successfully amending and administering their zoning ordinances to define and regulate such activities in a manner that balances agricultural needs with neighborhood and community concerns for privacy, quality of life and genuine conservation.

The Town Council is solely responsible for adopting zoning ordinance amendments. It has done nothing to address the current crisis proactively, with the involvement of residents, including the town’s active farmers, who are in effect being held to a different standard than the high-powered and aggressive vineyard.

Many of us have enjoyed events at the vineyard over the years. But we have every right and reason to expect that such activities are conducted in strict compliance with the zoning ordinance and other relevant laws and regulations.

I am not in favor of paving agricultural fields protected — or so we thought — by conservation restrictions for which taxpayers have paid millions of dollars. Instead, we are watching as town officials docilely submit to the transformation of such public property interests into what are in effect commercial parking lots.

The responsibility for resolving this matter in a manner that is in the interest of the community, while respecting the legitimate property rights of the vineyard’s owner, now falls squarely on the Town Council and its legal adviser, the town solicitor.

The precedents now being set by these town officials have potentially dire consequences not just for vineyard neighbors but for the entire town, all its residents and property owners — not least its community-minded resident farmers.

The Town Council understandably seeks to avoid litigation initiated by the vineyard if its denies the entertainment licenses for which the vineyard has applied. But if the council does issue licenses sanctioning the types, scale and frequency of events proposed by the vineyard, they may be opening the floodgates for legal disputes involving properties throughout the town.

Virtually the entire town is zoned for residential uses, while permitting agriculture by right. Our zoning ordinance doesn’t define specifically what constitutes a legitimate “farm” or “agricultural” operation. As the previous vineyard owners acknowledged in 2011, the zoning ordinance doesn’t distinguish between “vineyards” or “wineries” and other forms of agricultural operations, in terms of clearly defined and permitted agricultural uses.

If the council issues an entertainment license to the vineyard for the events proposed and based on the vineyard’s justifications, as documented in its 300-page license application, there would seem to be no logical or legal reason why any other property owner in town who purports to be operating an agricultural enterprise couldn’t likewise transform their property into a commercial entertainment and wedding venue, with vast permanent parking areas on ostensibly conserved land.

Larry Anderson is a longtime Little Compton resident.