Posted by: Patricia Salkin | January 28, 2016

RI Superior Court Upholds the Issuing of Notices of Violation by Zoning Enforcement Officer Against Individuals Growing Medical Marijuana in Self-Storage Units in Industrial Zone

Appellant, a Rhode Island limited liability company that owned a large building of self-storage units on property located in an industrial zone (the I-1 zone), rented out self-storage units to individual tenants. Two of these tenants were growing medical marijuana as licensed caregivers inside of their rented storage units. On November 24, 2014, Jacob Peabody, a zoning enforcement officer, issued two Notices of Violation regarding the marijuana growing operations he found to be taking place in these storage units. The Notices of Violation alleged that tenants within Appellant’s building were growing marijuana, and that agriculture and horticulture were prohibited activities in the I-1 zone. On April 2, 2015, the Zoning Board issued two decisions denying Appellant’s appeal: neither the Appellant nor the owner filed a request for a zoning certificate prior to commencing the activity; and there was not enough information to enable the Board to find that the use constituted pharmaceutical manufacturing for the purposes of zoning, thus the finding that the determination that the use constituted a horticultural activity was correct.

Appellant first argued that it was not given sufficient notice of an alleged violation of the Coventry Zoning Ordinance, which the Zoning Board eventually found to be the basis of a zoning violation. The Board argued that ignorance of the law that “it was incumbent upon the Applicant or owner to obtain a Zoning Certificate from the Zoning Official before commencing this activity” was no excuse for failure to comply, despite the fact that the Zoning Enforcement Officer failed to notify in writing these tenants the nature of the violations, and to order the action necessary to correct them. The court disagreed, finding that the Board acted in violation of Article 3, Section 3104 of the Coventry Zoning Ordinance by addressing this issue when the Appellant received no notice. However, the Board did not solely base its decision on the finding that the Appellant lacked a Zoning Certificate, but also on the Zoning Officer’s determination that the use constituted a horticultural activity. As such, the court held that this error was harmless, as it did not prejudice substantial rights of the Appellant.

The Appellant next argued that the Zoning Board erred in failing to consider growing medical marijuana as manufacturing pharmaceuticals, a permitted activity in an I-1 zone, within the meaning of the Coventry Zoning Ordinance. Here, the Board found that the Appellant’s tenants were not manufacturing pharmaceuticals and were exercising horticultural activity, and horticulture was clearly prohibited in the I-1 zone. Moreover because the tenants testified at the hearing that they held caregiver licenses and were not licensed to manufacture pharmaceuticals, the Board upheld the Notices of Violation. Since the definition of “manufacture of pharmaceuticals” under the Coventry Zoning Ordinance was subject to more than one reasonable interpretation, the court granted deference to the Coventry Zoning Board’s interpretation.

Finally, the Appellant argued that the Zoning Board’s actions were in violation of the Rhode Island Right to Farm Act, and the Rhode Island Constitution’s guarantee of preservation of land and natural resources. However, the Appellant failed to demonstrate how growing plants in a warehouse had any implication on the agricultural use of the land. The court also noted that the right to grow plants inside a storage unit was not a use of Rhode Island’s “natural resources” as protected by the Rhode Island Constitution, nor was it a “traditional agricultural land use” as protected by the Right to Farm Act. Accordingly, the court affirmed the Zoning Board’s decision.

Baird Props., LLC v. Town of Coventry, 2015 WL 5177710 (RI Super. 8/31/2015)

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