2014-03-06 / News

Abutters appeal decision to allow alcohol

By Margo Sullivan

Jamestown Vineyards successfully applied for a state winery license last year, but the Beavertail Road neighbors say the decision relied on a letter from Building Official Fred Brown.

The neighbors, led by Don Wineberg, object to possible plans to sell liquor there, whether through retail sales or special events, such as wine tastings or weddings.

The Zoning Board of Review on Feb. 25 agreed to hear their complaint under the provisions of a state law because the zoning official failed to respond within 15 days to a written request from the opposing residents.

According to Providence attorney Matthew Oliverio, who represents resident Wineberg and the concerned citizens group, when the building official fails to respond, the matter falls to the local zoning board to decide.

Wineberg and resident William Skinner testified they sent Brown a letter on Aug. 15, 2013, and Skinner sent a second letter on Nov. 8 2013, asking about permitted uses at 334 Beavertail Road. They also made telephone calls, but Brown ignored them, according to the attorney.

Town Solicitor Wayne Brochu said Brown has “discretion” about whether to respond to questions, but allowed the residents do have a right to come before the zoning board in this matter.

Such an appeal is allowed under state law, said Brochu. He could not recall the last time it happened in Jamestown, although he has seen the law applied in other communities.

The residents are also asking the zoning board to decide if Brown’s letter “constitutes a zoning certificate” and approval for operating a winery. Additionally, they want the board to give them the information they requested in their two letters to Brown.

Oliverio said the vineyard is in an RR-80 zone where a winery is not a permitted use. Plus, Jamestown’s local ordinances prohibit alcohol sales in the zone.

The vineyard is owned by PBH Realty, part of the Procaccianti Group.

Attorney Mark Liberati, who represented the vineyard and its tenant, Frank DiZoglio, objected to the hearing based on legal arguments.

Liberati said the vineyard is currently only dealing with wine for family consumption and was not selling it. The grapes were being sent off island to be made into wine. The objections, therefore, amounted to speculation about something that had not happened yet. Liberati also cited legal precedents that questioned a local zoning board’s power to issue any “declaratory or advisory” judgments about a potential use for a property.

Wineberg, a former member of the Zoning Board of Review, said there would have been no reason for Jamestown Vineyards to apply for a winery license if the owners did not plan to sell wine. He defended the timing of his appeal because stopping an activity after it is underway is more difficult than preventing it before it begins. Wineberg said he did not object to growing grapes but does object to manufacturing and selling wine on the property.

Ultimately, the board agreed to hear the appeal on the understanding no decision would be made the same night. After the attorneys presented their cases, the hearing was continued for two months.

During his testimony, Brown confirmed he had made a decision that a winery was a permitted use in an RR-80 zone. He did not inform the neighbors about his ruling and did not respond to their letters.

Brown said he is not obligated to publish any of his zoning decisions. He made the decision because DiZoglio, whom he has known 25 years, asked him for a letter to be used at the state hearing.

Although the zoning ordinance does not specifically allow a winery, Brown said he based his decision on the section of the ordinance about commercial sales of farm products. He considered the winery similar to a farm, but acknowledged the ordinance “was not very specific.” He visited the site and was convinced the winery would be a small-scale operation, but he also went to the Town Council about drafting a new ordinance.

“Look, we’ve got a brouhaha brewing here,” he told the councilors. “I thought we should be properly regulating the activity.”

However, the council has not taken action on a new ordinance.

“Well, we had a snafu with our town manager, who dropped the ball,” Brown said.

Asked why he would allow a winery even though alcohol sales were prohibited in an RR-80 zone, Brown said he was not knowledgeable about grapes and wine.

“You know it has an alcoholic content?” Oliverio asked.

Brown said he did.

The residents found out Brown had issued a zoning certificate for the winery when they attended the state hearing.

Zoning Chairman Richard Boren asked the attorneys to provide additional legal arguments addressing the distinction between “produce” and a “product.” Expert witness Samuel J. Shamoon, a city planner, testified for the residents to say wine is a product that is manufactured and therefore sales should not be allowed in an RR-80 zone, although farm produce could be sold there.

Liberati said other Jamestown farms also located in RR-80 zoning are selling products such as wool and meat from slaughtered livestock.

Shamoon said he did not write the ordinance and thought the uses of the words “produce and product” should have been more clearly defined.

Wineberg said he did not object to sales at the other farms because no houses are located nearby.

In other business, Dutch Harbor’s new owners, Mains’l Properties, successfully applied for two dimensional variances to enable the home on the corner of Avenue B and Narragansett Avenue “to be put into residence shape,” as Newport Attorney Gregory Fater put it.

Fater said he and his clients, Joseph and Maria McGrady, plan to live at the marina and want to separate the residence from the business.

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