As the summer season has arrived in Little Compton, it’s time for an update about the status of various activities at Carolyn’s Sakonnet Vineyard.
My previous post (April 6, 2022), “Carolyn’s Sakonnet Vineyard: A New Chapter in an Ongoing Saga,” was prompted in part by the vineyard’s application for a BV retail alcoholic beverage license for 2022. The vineyard subsequently submitted, then withdrew, a separate application for a 2022 entertainment license to hold a series of 14 concerts. In this post, I discuss the status of both license applications, as best I can determine at this time.
Disclosure/disclaimer: I have my own strong opinions about all these subjects, in which I have invested considerable time and energy. Other people may have different opinions. My own past role in some of these matters, as a supporter of the plaintiffs in litigation initiated against the Town Council and the vineyard in 2017, and then as a member of the Town Council from 2018 to 2020, is addressed in a footnote at the end of this post.¹ I should also warn readers that this is a lengthy, detailed, bone-dry post, written primarily for documentary purposes–not as a model of graceful literary expression.
1. BV license application
In March of this year, Dionysus Acquisition LLC, doing business as Carolyn’s Sakonnet Vineyard (“vineyard”), sought a “BV” retail beverage license for the purpose of developing a year-round, 50-seat, full-service restaurant serving beer, wine, and other alcoholic beverages in an existing building on its premises. (The vineyard had previously submitted a BV license application in May 2018, which it withdrew without explanation a few weeks later.) As a state-licensed winery the vineyard has been and continues to be able to serve its own wine on the property.
A BV license is a state-authorized classification permitting retail sale of alcoholic beverages for consumption on premises at a “victualing house”–that is, an establishment where food is prepared and served. The Little Compton Town Council, serving as a Board of License Commissioners, issues such licenses in conformance with town ordinances and according to state standards, as established by the Rhode Island Department of Business Regulation. In her license application (see images below), signed by vineyard owner Carolyn Rafaelian on March 7, 2022, she disclosed that there was a $2.9-million mortgage on the vineyard property and that she had invested $18 million in the business.
“In order to succeed and grow, financially, we, like other farms, need to rely on additional revenue streams to survive,” vineyard general manager Cynthia Rocha wrote in a March 18, 2022 letter to the Town Council in support of the application for a BV license. “We have a short hospitality season that is also very weather dependent but is necessary to support a 365-day business.”
“Many of our loyal customers visit frequently throughout the year,” she added. “We hear time and time again of a missed opportunity for them to bring certain guests with them because they ‘don’t like wine.'”
Upon submission of the vineyard’s BV license application, the town’s Zoning Official Peter Medeiros on March 16 issued a terse letter, declaring clearly and without equivocation that the proposed use is not permitted in a Residential zone. The full text of his letter, addressed to the Town Council, reads as follows:
The Little Compton building and zoning department acknowledges that the subject property is a legal non-conforming use with an operating vineyard and winery. The subject property is located in a residential zone within the town of Little Compton. The current use of the subject property is in compliance with the Little Compton Zoning Ordinance, chapter 14.
The property is primarily used for agricultural purposes and operates an active winery. See zoning table 14-3, table 1a-a1.
The owners of the property are applying for a b/v retail beverage license, which may coincide with a restaurant setting, as per the proposed menu. Per use table 1-a use c13, a restaurant is not permitted in a residential zone. [emphasis added]
The excerpt of the Zoning Ordinance’s Table 1-A (“Table of Principal Use Regulations”) shown below includes the two uses–A1 and C13–cited in Mr. Medeiros’s letter. According to Sec.14-3.1 e. of the ordinance (“Use Regulations”), “Permitted uses are denoted with a ‘Y’ for yes. Uses which are not permitted are denoted with an ‘N’ for no. Uses permitted only upon approval of the [Zoning] Board are denoted with an ‘S’ for special use permit.”
|
Table 1-A – Table of Principal Use Regulations |
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| Use # | Principal Uses | Residential (R) | Business (B) |
| A | AGRICULTURAL & FISHING | ||
| A1 | Agricultural uses including the growing, processing, value added production, displays, education, promotion and sales of agricultural products including, but not limited to wineries. |
Y |
Y |
| C | COMMERCIAL | ||
| C13 | Restaurant, lunch room, café, tavern. |
N |
S |
| C14 | Fast food restaurant. |
N |
N |
I’m not a lawyer, but I agree with Mr. Medeiros’s opinion that a restaurant is “not permitted in a residential zone,” as clearly defined in the Zoning Ordinance’s “Principal Use” table. However, as I discuss further below, that recent opinion illustrates the town’s persistently inconsistent, arbitrary, and confused approach to enforcement of the town’s Zoning Ordinance with regard to the vineyard.
For one thing, the Town Council has previously granted the vineyard licenses for uses defined in Use Code C13. Indeed, the vineyard holds such a license for the current year. As best I can determine from reviewing its meeting minutes since 1975, the Little Compton Town Council first issued a “victualing” license to the vineyard, then under different ownership, in 2000 and 2002 to “offer prepared picnic foods.” The Council did not appear to grant victualing licenses to the vineyard in 2003 and 2004. On July 7, 2005, a license was granted for the remainder of that year. At that meeting, the Council also granted a separate such license “for ‘Farmstead’ a food business operating out of Sakonnet Vineyards.” No victualing licenses appear to have been issued for the vineyard for 2006. Since 2007, however, the Council has annually granted a victualing license to the vineyard, on the basis of which it has sometimes operated a seasonal café. The Council that year for the first time also issued holiday-sales and entertainment licenses to the vineyard.²
The Town Council met on March 24, 2022 to consider the vineyard’s BV license application. Because Town Solicitor Richard Humphrey since February 2020 has recused himself from participating in or advising the Town Council regarding matters involving the vineyard, the Council after some discussion voted to defer action on the license request until consulting with attorney Girard Galvin. Galvin has been advising the Council on vineyard matters since Mr. Humphrey’s February 2020 recusal. The Council unanimously approved this motion on March 24:
To refer an application received from Dionysus Acquisitions LLC d/b/a Carolyn’s Sakonnet Vineyard to secure a Class BV Retail Beverage License for 162 West Main Road to Girard Galvin, Esq. requesting a report to the Council with recommended actions.
The Town Council returned to consideration of the vineyard’s BV license request at its April 21, 2022 meeting. Attorney Galvin was not present at the meeting. However, the Council on April 14 had met with Mr. Galvin in executive session to consider several legal matters involving the vineyard, as documented in its minutes:
Discussion then ensued regarding the same establishment [sic] potential litigation that may occur depending on any final decision made by the Council with regard to an application for a Class BV Retail Beverage License by Dionysus Acquisitions LLC d/b/a Carolyn’s Sakonnet Vineyard. This subject will be placed on the April 21, 2022 Town Council meeting for vote.
At that April 21 meeting, Council President Mushen referred to and read from Zoning Official Medeiros’s March 16 letter stating that “a restaurant is not permitted in a residential zone.” I also spoke at the meeting. I had previously procured from Mr. Medeiros a copy of his letter, which prompted me to write to the Council. “Based on [Mr. Medeiros’s] opinion alone,” I wrote in my April 5 letter, “a BV license cannot and should not be granted, at least at this time.” I continued:
The fact that the Town Council may previously have issued victualling licenses to the Vineyard, as I believe Council President Mushen noted at the March 24 meeting, does not address the zoning issue identified by Mr. Medeiros or make previous “café” uses legal under the Zoning Ordinance. I don’t believe that it is within the Council’s legal purview to attempt to resolve or address what is essentially a zoning matter by granting yet another license – in this case a BV retail liquor license. . . .
. . . I believe the Council cannot consider the Vineyard’s current request until the zoning issue is addressed and resolved. In light of the Zoning Official’s opinion, the Vineyard can—and perhaps must—seek relief in the form of a variance from the Zoning Board of Review if it wishes to operate a full-service restaurant on the property.
It appeared that Attorney Galvin may have come to a similar conclusion and offered the Council similar advice. The Council unanimously adopted the following resolution:
To defer action on an application for a Class BV Retail Beverage License received from Dionysus Acquisitions LLC d/b/a Carolyn’s Sakonnet Vineyard for premises located at 162 West Main Road, more specifically out of a building address of 53 Winery Rd as newly numbered by E-911 system, until the Vineyard has determined a resolution to the conflict with our zoning found in 14-3.1, e Table 1-A Table of Principal Use Regulations, C13 – Restaurants as noted by the Zoning Official in his letter of opinion.
Though he voted for the resolution offered by Mr. Mushen, Council member Andrew Iriarte-Moore, according to the Council’s minutes, observed that its wording provided “no direction” to the vineyard about how to proceed. In fact, the resolution, as adopted, didn’t approve the license, explicitly reject it, or formally table it. Rather, the Council chose to “defer action” on the application “until the Vineyard has determined a resolution to the conflict with our zoning” identified by Mr. Medeiros.
The Council in effect handed the hot potato back to the vineyard. The Council resolution itself did not specify the nature of the relief required to secure “a resolution to the conflict with our zoning.”
What next for a vineyard BV license (if anything)?
In my letter and comments to the Council, I had suggested that the vineyard would require a variance from the Zoning Ordinance. In retrospect, and as discussed below, I’m not sure that a variance provides the vineyard an appropriate or logical recourse to remedy the issue raised by Mr. Medeiros. During the course of the discussion of the Council motion, Councilor Mushen, as the minutes record, offered his belief that “the Vineyard should go to the Zoning Board to seek a special use permit, but noted that they also could appeal the decision of the zoning official.” I am not sure what basis there is for the vineyard to seek a special use permit for a use that the Zoning Official has expressly identified as strictly prohibited in a Residential district. The Use Table does not appear to provide the Zoning Board of Review the authority to allow such a use by special use permit in a Residential district (unless perhaps as an intensification of an existing nonconforming use).
Presumably the vineyard’s owner, manager, and attorneys have or are considering what alternatives or recourse to pursue, if any, to seek a BV license. As of this post, there is no evidence, at least from posted meeting agendas, that the vineyard has pursued any recourse or appeal with the Zoning Board of Review. In any event, it may be that the vineyard cannot now file a timely appeal in light of the deadline set forth in Sec. 14-9.7 b. (“Appeal.”) of the Zoning Ordinance.
As noted, the Zoning Official’s March 16 letter and the Council’s April 21 vote reveal the continuing inconsistency and confusion surrounding the town’s enforcement of the Zoning Ordinance and other ordinances in connection with some vineyard activities.
If a restaurant is not permitted in a Residential Zone, neither is a café, for which the Council has previously granted a victualling license. The Zoning Official doesn’t address this inconsistency in his letter. The Town Council, on November 4, 2021, voted to grant a 2022 victualling license to the vineyard “contingent upon meeting all state and local requirements.”
The exact same Use Code C13 in Table 1-A Mr. Medeiros relied upon to declare that a “restaurant” is not a permitted use in a Residential Zone also includes the following non-permitted uses: “lunch room, cafe, tavern”. No distinction is made among any of the four uses. In other words, the use for which the Council granted a victualling license last November is not a permitted use, for the exact same reason and based on the exact same provision of the ordinance Mr. Medeiros cited in his March letter regarding the vineyard’s BV application. The license granted was contingent upon meeting “all … local requirements.” Logically, the vineyard’s current victualing license is not consistent with “all . . . local requirements.” How can its current victualing license therefore be valid? (To my understanding, this C13 use was not specifically mentioned or at issue in the recent litigation involving the vineyard.)
Conversely, from the vineyard’s perspective, why can or should it be denied a BV license, based on the assertion that the proposed use (“restaurant”) is not permitted, when the town has already issued a current victualing license at that premises for what is arguably that very C13 use?
The principal source of such confusion, I believe, is that the town’s Zoning Ordinance definition of “agricultural uses,” as provided in Use Code A1 (which was last amended in 1994), does not provide farmers an explicit exemption from Zoning Ordinance requirements that apply to other property owners in the same zoning districts. Yet, at least at the vineyard, town officials have sometimes acted as if there existed such an exemption. This was a fundamental issue raised by the plaintiffs in their litigation against the Town Council and the vineyard. The issue remains unresolved, to the detriment of the vineyard and all other active farmers in town, as well as to the confusion of all other property owners.
Moreover, the state’s Right to Farm Act (RFA), as confirmed by a relatively recent decisions by the state Superior Court and Supreme Court in the case of Gerald F. Zarella Trust v. Town of Exeter, authorizes municipalities to regulate “non-agricultural” activities that aren’t expressly exempted by the RFA. The RFA doesn’t specifically include restaurants, cafes, etc. as permitted agricultural uses, any more than it does concert and wedding venues.
Traditionally rural and agricultural Little Compton has always encouraged agricultural activities and businesses in town, and it should continue to do so. Use Code A1 of the Zoning Ordinance permits broadly and sometimes vaguely defined agricultural uses in the town’s two zoning districts, Residential (R) and Business (B)–that is, throughout the entire town. A recently mounted and informative exhibit by the Little Compton Historical Society declares that “Everyone Was a Farmer.” Today, according to the town’s Zoning Ordinance, every property owner is a farmer–at least potentially. There is no distinction between a property owner selling eggs from a cooler in front of, say, their two-acre legally conforming lot and a vineyard operating a multi-use agricultural operation on a property comprising more than 100 acres. Why can’t a local one-cooler egg seller operate a café on their property–or hold weddings and concerts? Don’t expect to get a clear answer to this question from any town official. The town’s Zoning Ordinance, in its current outdated and inadequate form, doesn’t provide an answer.
2. Entertainment license application
On May 10, 2022, vineyard manager Cynthia Rocha submitted an application for an entertainment license for the current year, similar to those the vineyard had been issued for 2018, 2019, and 2020. As it happened, due to Covid-19 conditions the vineyard did not hold any concerts in 2020. The vineyard applied for a 2021 entertainment license, which the Council conditionally granted on November 19, 2020, requiring that the Council receive 30-day warning prior to any event, “to have time to implement whatever sound mitigation conditions the Council requires.” I participated and voted in favor of this license during my last meeting as a member of the Town Council. In any case, the vineyard did not obtain a 2021 entertainment license and held no entertainment events.
Sec. 6-4 e. of the Town Code provides that “All licenses shall come due on December 1.” Thus, the Town Council usually acts in November of each year on license applications for the next 12 months. The vineyard did not submit its 2022 license application until May 10, 2022. That application called for “family music nights” on nine consecutive Thursdays beginning June 30, from 6 to 9 p.m., and “afternoon music” on five consecutive Sundays, beginning September 4, from 1 to 4 p.m. The total of 14 concerts represents the maximum permitted by the Little Compton Agricultural Conservancy Trust, which holds a conservation easement on the vineyard lot where the concerts would be located. The vineyard’s application stated that the number of guest vehicles for the events would be capped at 317.
Entertainment license requirements and procedures are set forth in Sec. 6-7 of the Town Code. In addition, the town’s noise ordinance–Sec. 3-1 (“Disturbing the Peace”)–provides standards and penalties for controlling the impact of music and other sound that may be associated with licensed entertainment activities.
Many town residents (me included) and patrons of the vineyard have in the past attended and enjoyed music and concerts held on the premises. My compilation of licenses issued to the vineyard since 1975 indicates that beginning in 1994 and 1995 the vineyard, under its prior ownership, was awarded a single one-day entertainment license for each of those years. After that, beginning in 1997 and for most (but not all) years of the next decade, the vineyard was a venue for a one-day summer benefit concert for the benefit of the Little Compton Community Center. However, The Community Center was the applicant for and recipient of one-day entertainment licenses for such events, not the vineyard itself. Beginning in 2008, the vineyard itself began applying for and the Town Council have since granted annual entertainment licenses. (The 14-concert limit for the vineyard was initiated by the LCACT for the first time in 2017. The previous year, the Town Council had amended the entertainment license ordinance to require that applicants whose property is subject to a conservation easement provide written approval from the entity holding the easement.) Beginning in 2013, those annual licenses were granted to Dionysus Acquisition LLC, which purchased the property at the very end of 2012.
May 19, 2022 Town Council meeting discussion and outcome
The discussion of the entertainment license application at the May 19 meeting was a sometimes spirited one. It included some individuals, me among them, who have previously spoken up about vineyard activities since at least the summer of 2015. That year the vineyard’s intensified concert and wedding activities, under current ownership, led to a series of well-attended, sometimes rancorous public meetings about increased noise, traffic, and light generated by those activities.
The May 19 discussion may have been somewhat befuddling for those who had not closely followed the controversy and litigation concerning the vineyard’s concert activities in recent years. The focus of that discussion revolved around what specific conditions the Council could or should include in an entertainment license for the mitigation of amplified music generated during the proposed concerts.
(A detour through the Rhode Island judicial system: Christina Carlson et al. v. Town of Little Compton Town Council et al.)
The discussion of the sound mitigation issue reflected different perspectives on the outcome of litigation filed by vineyard neighbors Brian Eliason, Natalie Eliason, and Christina Carlson in 2017 against the vineyard and the Town Council at the time, three of whose members (Robert Mushen, Gary Mataronas, Paul Golembeske) currently still serve.
In an amended version of their original complaint filed in June 2017, the plaintiffs (Carlson and the Eliasons) summarized their claims against the defendants (the Town Council and the vineyard) as follows:
This is a complaint for declaratory relief against the Town of Little Compton, who, through its Town Council, approved two (2) Entertainment Licenses for Dionysus Acquisition, LLC to conduct twenty-eight (28) weddings, concerts and/or events, together with associated large-scale parking, at Carolyn’s Sakonnet Vineyards in Little Compton. The Plaintiffs ask this Court to declare these licenses as invalid and unauthorized because the Town Council did not comply with the requirements of the Town’s Entertainment License Ordinance, nor did it waive those requirements for good cause. The Plaintiffs further ask this Court to declare that the proposed weddings, concerts and/or events and parking at the Carolyn’s Sakonnet Vineyards do not constitute pre-existing lawful non-conforming uses; or in the alternative, declare that the uses proposed are an intensification of a pre-existing lawful non-conforming use requiring a special use permit from the Little Compton Zoning Board of Review. (Emphasis added.) The Plaintiffs also seek to enjoin Dionysus Acquisition. LLC from holding any concerts, weddings and/or events pursuant to the unauthorized Entertainment Licenses. The Plaintiffs request relief pursuant to 42 U.S.C. section 1983 for infringing upon the rights of the Plaintiffs to due process of law as guaranteed by the Cons. U.S. article XIV. Further the Plaintiffs seek relief pursuant to the Rhode Island Administrative Procedures Act, section 42-35-1, et seq.
As is customary in much litigation, some of these claims were procedural, intended to convince a judge to overturn or delay the Council’s issuance of entertainment licenses, based on the Council’s alleged failure to follow the legal requirements for granting such licenses. But the substance of their claim was to seek a declaratory judgment from the court concerning whether or not the licensed events–namely, concerts and weddings–“constitute pre-existing lawful non-conforming uses,” or, alternatively, represent “an intensification of a pre-existing lawful non-conforming use requiring a special use permit from the Little Compton Zoning Board of Review.” In other words, were such events consistent with the Zoning Ordinance or had they been somehow “grandfathered” by prior actions of the town and the vineyard? In any case, the plaintiffs in their complaint made no claim for financial penalties or damages against the defendants.
These were the key questions that motivated me and many others to support the plaintiffs’ litigation in various ways. A decision regarding the legality of such activities at the vineyard might well set a precedent that could apply to all property owners throughout town, especially those actively engaged in agricultural operations. In other words, the potential impact of the enforcement of the town’s zoning and other ordinances at the vineyard was not confined solely to the vineyard and its immediate neighbors.
The complex twists and turns of that litigation are too tedious to recount in detail here. In sum, as the legal process played out from mid-2017 until recently, the various claims, counterclaims, and motions filed by the lawsuit’s three parties–the plaintiffs, the Town Council, Dionysus Acquistion LLC dba Carolyn’s Sakonnet Vineyard–led to a protracted process of court-ordered mediation and arbitration. The arbitration process dragged out until earlier this year, when the Superior Court judge presiding over case, Brian Stern, in April entered a court order that apparently concluded the case once and for all.
In the end, none of the original issues pursued by the plaintiffs (or those raised by the vineyard in a counterclaim) were ever actually litigated, by means of discovery, depositions, court testimony, cross-examination, or a judicial opinion resulting from a trial. The attorneys for the Town Council and the vineyard worked strenuously and effectively–at least from their perspectives and for the short term–to avoid a trial on the merits of the issues, some of which remain unresolved.
The substance of the settlement to the five-year lawsuit was encompassed by a 9-point “Memorandum of Understanding” (MOU) agreed to by its three parties in May 2018 and first confirmed by court order in May 2019. At first glance, all the parties could claim some success from the outcome. Among the key provisions:
- The vineyard was assured of receiving entertainment licenses for 2018, 2019, and 2020 “with the same terms and conditions” of the already issued 2018 license. (Paragraph 1)
- Judge Stern acknowledged the MOU provision finding that “events held by the Vineyard Defendants . . . including, but not limited to, weddings and concerts, constitute lawful, pre-existing, non-conforming uses under the Little Compton Zoning Ordinance as described in the attached zoning opinion dated November 3, 2017….” [The zoning opinion issued by then-Zoning Official Dan Joubert is part of the MOU at this link.] (Paragraph 8)
These two provisions could reasonably be considered victories for the vineyard and the Town Council. The vineyard, at least for a few years, was assured of receiving entertainment licenses. More importantly, “events,” including weddings and concerts, were in effect “grandfathered” as “lawful, pre-existing, non-conforming uses.” This finding, however, appeared to be confined only to “events”–not necessarily other uses (such as, for example, restaurants).
On the other hand, certain provisions of the MOU at first glance appeared to address what was perhaps the plaintiffs’ chief concern, namely the frequency and intensity of noise generated by vineyard events. For example:
- The vineyard and the plaintiffs agreed to “engage a sound attenuation expert forthwith for the purposes of collecting data and performing testing at the property owned by the Vineyard Defendants for the purposes of establishing a plan, in the exclusive opinion of the expert, for sound attenuation and sound mitigation, if any, at said property.” (Paragraph 2)
- The vineyard and the plaintiffs agreed that the collected sound data “shall be used for edification purposes only of the parties hereto and for a sound mitigation plan, if necessary, and not for litigation purposes, unless otherwise agreed by the parties.” Those two parties also agreed to share equally the costs of sound testing and hiring the sound attenuation expert. (Paragraphs 3 and 4)
Another provision of the MOU personally affected me and others who had supported the plaintiffs, financially and otherwise:
- The dismissal “with prejudice” (that is, without any possibility of appeal) of all the claims the three parties to the suit had filed against each other as well as “all claims against remaining John Does….”³ (See this footnote 3 for more about the “John Does.”) (Paragraph 5)
The MOU also provided that the parties “agree not to disparage one another” regarding of the matters addressed in the agreement (Paragraph 6) and that they “agree to be bound by good faith standards and will act with due diligence” (Paragraph 9). Judge Stern, as I had occasion to witness during court hearings, was not reluctant to remind the parties of the latter “good faith” provision.
Finally, however, by the provisions of the MOU itself, a legal door remained open to resolve disputes that might arise about compliance with the terms of the document. The MOU’s Paragraph 9 reads, in part:
- “The Mediator will retain jurisdiction over this MOU to resolve any disputes by and among the parties under this MOU, including any issues arising out of Paragraph 2 above.”
As matters turned out, the May 2019 court order sometimes described as a “settlement” didn’t really settle all the matters delineated in the MOU after all, particularly those pertaining to sound testing and the development and possible implementation of a sound mitigation plan. And the ongoing role of the Mediator (which evolved into the role of “Arbitrator”) included in Paragraph 9 provided an avenue and opportunity for further dispute, which played out slowly over several more years.
Back to the May 19, 2022 Town Council meeting
In fact, these very sound mitigation issues were still being discussed and disputed at the recent May 19 meeting concerning the vineyard’s entertainment license application. When Ms. Rocha was recognized by Council President Mushen to speak to her request, she immediately cited the language of the MOU and one of the several “arbitration awards” issued by the court-appointed arbitrator, retired Rhode Island Supreme Court Chief Justice Frank Williams. As Ms. Rocha presented the matter, Williams had determined that the vineyard could not be compelled under the terms of the MOU and subsequent settlement to install the “directional sound system” recommended by the sound engineer. “The Arbitrator’s decision stated that the sound attenuation was for edification only,” as the Council’s minutes reported her comments, “no mandate to implement.” This was correct, as far as it went. Indeed, Judge Williams had hung his final, exasperated response to the efforts of the plaintiffs’ attorneys to compel installation of such a system on the very term “edification” used in the MOU. Mr. Mushen, according to the Council’s May 19 minutes, immediately piped in that he agreed with Ms. Rocha’s “understanding of the agreement.”
Ms. Rocha’s assertion, and Mr. Mushen’s agreement, made the handful of us who had actually read the arbitration awards in their entirety sit up in our seats. Natalie Eliason, one of the plaintiffs, read from her cell phone a brief excerpt of one Judge Williams’s arbitrations awards. In the more complete section of the document she cited, Judge Williams recommended that
…the Plaintiffs engage in participatory social action by attending Town Council meetings and providing input regarding their concerns with the current noise ordinance. In addition, the Arbitrator recommends that the Vineyard Defendants continue their efforts in sound abatement and state-of-the-art sound attenuation techniques. In abiding by these recommendations, it is the Arbitrator’s hope that the parties will reach agreement in the spirit of community and neighborly accord.
At the May 19 meeting, I spoke up, not very coherently, pointing out that the passage of time had effectively diluted some of the provisions of the MOU/settlement. The terms of the MOU had required the town to issue entertainment licenses in 2019 and 2020 identical to the license issued in 2018. Ms. Rocha was seeking an entertainment license on those terms. But that requirement has expired, by agreement of the parties in the MOU’s Paragraph 1. Indeed, while I was still on the Town Council, at my last meeting on November 19, 2020, I participated in the discussion and vote for the vineyard’s 2021 entertainment license application. At that time, due to Mr. Humphrey’s recusal, the Council was being advised by attorney Galvin. At the meeting, I asked Mr. Galvin whether, in light of the expiration of the provision in the MOU, the Council could include new and different conditions on an entertainment license. “Attorney Galvin noted that the Council was bound by the Mediation Memorandum of Understanding and Consent agreement to approve the 2019 and 202o licenses,” according to the minutes of that 2020 meeting, “but that restriction has expired allowing the Town to have discretion over the number of events or parameters for those events under our Town Code.”
Moreover, as I pointed out at the recent May 19 meeting, the Council in its licenses issued for 2018 through 2020 had required as a condition of the license that the vineyard employ “state of the art sound attenuation techniques.” But it didn’t specify what those techniques should be, delegating that decision to the Building/Zoning Official (who, as far as I am aware, is not expert in sound engineering and mitigation).
I further pointed out that, as a result of the several arbitration awards issued by Judge Williams, pursuant to the MOU/Settlement to which the Town Council remained a legal party, the Council now had new information about what constituted state-of the art sound mitigation techniques. A sound attenuation expert, David Coate, had been engaged by mutual agreement and shared expense of the vineyard and the plaintiffs, as provided in the MOU. In a July 29, 2019 report (“Distributed Loudspeaker Analysis / Recommendations”), he recommended, based on testing at the vineyard of a simulated concert, that a “distributed” loudspeaker system would significantly reduce the sound emanating from the vineyard during concerts (and perhaps other events). Moreover, according to the report, such a system would improve the concert experience for vineyard patrons. “A significant benefit of the distributed system is the perception that sound is coming from all around,” wrote Mr. Coate. “Patrons at the Vineyard would likely the appreciate the upgrade in sound quality.”
This information had not been available to the Council in 2018. But the Council is not now prevented from using these results for their own “edification” about what constitutes “state-of-the-art” sound mitigation. In 2016, the Council had amended the town’s noise ordinance (Section 6-7.4 b.) to provide that “Reasonable efforts shall be made by the licensee to project noise away from abutting property owners. Noise mitigation techniques and devices shall be used where appropriate and as may be required by the Town Council.”
By virtue of specific conditions of the noise ordinance, as well as the fact that the Council was no longer bound by the requirement to issue a license based on the 2018 conditions, as attorney Galvin has previously advised, the Council can require the recommended distributed sound system as a condition of a new license. As I suggested at the May 19 meeting, it would likely make good business sense for the vineyard to do so, both for the benefit of their patrons and as a matter of community goodwill. And the expense would likely be a fraction of what this dispute has cost the vineyard in legal fees and lost business opportunities.
I discovered later that other advocates had already provided arguments to the Council–or at least some of its members–similar to those offered by Ms. Eliason and me on May 19, though in a more thorough and legally authoritative manner. In a May 18 letter to the Council, attorney Jennifer Cervenka, representing the Eliasons, had cogently stated why the Council could and should require the recommended distributed sound system as a condition of a new entertainment license.
Similarly, another lawyer, Christopher D’Ovidio, working with Ms. Cervenka on behalf of the Eliasons, had also provided a letter to the Council on May 18 asserting that the vineyard’s legal preexisting nonconforming use had been abandoned, pursuant to the town’s Zoning Ordinance Sec. 14-2.4(h), because the vineyard had permitted its entertainment license to lapse for more than a year. It is true that the Superior Court, as an element of the litigation’s settlement, issued an order recognizing “that events . . . including, but not limited to, weddings and concerts, constitute lawful, pre-existing, non-conforming uses under the Little Compton Zoning Ordinance.” But neither the MOU nor the subsequent court orders citing it specifically provided or implied that the vineyard was not obligated to comply with Zoning Ordinance requirements and provisions involving such uses, including those pertaining to abandonment. The vineyard does not appear to be entitled to permanent, ongoing rights and privileges under the Zoning Ordinance different from those to which other property owners are subject.
At the May 19 meeting, Council member Patrick McHugh, who had not been on the Council throughout most of the previous chapters of this saga, expressed his willingness to proceed “to see the Council direct the Vineyard to install sound mitigation remedies,” and he pointed to the section of the Town Code that “allows the Council to require noise mitigation techniques.”
Nonetheless, Mr. Mushen’s original motion was still pending, including the provision that noise attenuation measures be taken up at the Council’s June 9 meeting. The Council adopted the resolution unanimously, as follows:
That the Council receive an application for an Entertainment License received from Dionysus Acquisitions LLC d/b/a Carolyn’s Sakonnet Vineyard and schedule for consideration for approval at the next meeting with the following conditions:
1. Completion of all elements of the application, per section 6-7.3,a
2. Approval by the LC Agricultural Conservancy Trust of the requested uses of parcels under their purview, per 6-7.3,b
3. Opinion of the Zoning Official that the proposed activities would be compliant with Chapter 14
4. Satisfaction of all conditions specified in section 6-7.4 of the ordinance
5. And consider any noise attenuation during the meeting of June 9, 2022.
On Monday, May 23, only a few days after the Council vote, vineyard manager Cynthia Rocha sent a terse email to Town Clerk Carol Wordell: “We have decided to withdraw our Entertainment License application. We appreciate your time and consideration on the matter thus far.” No further explanation was provided for that decision.
3. Fair opportunity and consistent enforcement for all
At least for now, there will be no 50-seat, year-round restaurant at the vineyard, with full alcohol service. Nor will there be any concerts at the vineyard this summer.
It’s not clear how the vineyard’s owner and management reach their business decisions. But they have clearly not done so in a manner that generates community support or goodwill. It has never been the case, as the vineyard and the Town Council have sometimes asserted, that the plaintiffs–Christina Carlson and the Eliasons–or the many other citizens who supported them do not want to see the vineyard succeed as a viable business. Indeed, many would be glad to patronize a well-run operation, based on agriculture and other legally permitted accessory, income-producing activities consistent with the conservation easement on the property. The town itself, through the Little Compton Agricultural Conservancy Trust, along with other public agencies–the State of Rhode Island, the federal government, and the City of Newport–have made a considerable investment of over $2.25 million in public funds to preserve the agricultural integrity of the property. We all have a stake in the success of the vineyard and other Little Compton farms.
However, neighbors of the vineyard and other residents of the town can justifiably expect that the vineyard operates in a manner consistent with town ordinances and other regulations, as fairly applied and consistently enforced. Ultimately, the Town Council has the responsibility for and the legal means of ensuring this occurs.
Here’s how I expressed these concerns in my April 5 letter to the Town Council, when the BV license was under consideration:
“I wish to make clear that I am not opposed in principle to a restaurant operation in association with the Vineyard – or with any other legitimate agricultural operation that is compliant with conditions set forth in an amended ordinance. The Covid crisis, along with other crises in the world in this very moment, have only reinforced the importance of local agriculture and the need for the town to support such agricultural enterprises. But the town should do so in a way that treats all agricultural enterprises fairly, equally, and transparently, rather than by standards that may appear to be arbitrary or to reflect favoritism. An amended ordinance should also take into account concerns of neighbors and property owners not engaged in agriculture. I fully appreciate that other operators of agricultural businesses in town, who have acted responsibly and within the law, may be skeptical about changes to the status quo. I believe strongly, however, that a carefully and thoughtfully drafted ordinance amendment may provide opportunities for such agricultural businesses to productively augment their business activities without unduly infringing on their rights or current operations.”
I readily confess that during my single two-year term on the Council (I chose not to run for re-election in 2020) I had little success developing any significant consensus among the Town Council in support of a constructive solution or path forward.
There is more to be said about how some current Little Compton office holders created and have overseen the confused and inconsistent enforcement of the town’s Zoning Ordinance and other regulations with regard to the vineyard.
In a future post, I may also return to previous thwarted efforts to amend the town’s Zoning Ordinance, as other Rhode Island municipalities have done, to incorporate accessory agricultural uses, consistent with the state’s Right to Farm Act. I believe strongly that such amendments are necessary and long overdue. And I believe that, with patience and goodwill among various shareholders and interests, such amendments need not be unduly onerous to farmers and other property owners. Rather, amendments of the Zoning Ordinance regarding accessory agriculture uses could, in a fair and transparent manner, permit and encourage well-regulated activities such as restaurants, entertainment, and other non-agricultural uses associated with agricultural operations in town, including, but not restricted to, Carolyn’s Sakonnet Vineyard.
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¹ The next paragraph is identical to one included in my April 6,2022 post, “Carolyn’s Sakonnet Vineyard: A New Chapter in an Ongoing Saga”:
By way of disclosure, I was actively and publicly involved in various ways in supporting the plaintiffs, Vineyard neighbors Brian and Natalie Eliason and Christina Carlson, in the lawsuit they filed against the Little Compton Town Council and the Vineyard in 2017. I believed then, and believe still, that their lawsuit was principled and well-founded, based on legitimate legal concerns. My support included, among other things, financial donations to defray their legal expenses, cooperation with others to raise additional support for legal expenses, and procuring public documents for their attorneys. When I was elected to the Town Council in November 2018, I in effect became a defendant in the lawsuit. I immediately requested an Advisory Opinion from the RI Ethics Commission regarding my situation, which by then involved a counterclaim filed by the Vineyard against the plaintiffs, in which the Vineyard also indicated that the counterclaim might be expanded to include unnamed “John Does.” The Commission advised that I recuse myself from matters involving the Vineyard as long as the litigation was pending, which I did. Based on the terms of a settlement among the parties in May 2019, all claims and counterclaims were withdrawn. I then returned to the Ethics Commission to request another Advisory Opinion based on the changed circumstances. The Commission advised that I need no longer recuse myself from Council business involving the Vineyard.
I have not served on the Town Council since the end of 2020. I have no current legal or financial relationship with the plaintiffs in the original litigation against the Town Council and vineyard. The opinions offered in this post are mine alone.
² I have attempted to document all licenses issued to the vineyard itself and for other activities on the property from 1975, when the vineyard opened, until 2018. That chronology can be found here or from a link at this site’s “Documents” page.
³ In a counterclaim filed against the three plaintiffs in late 2017, the vineyard accused them of “intentional acts to interfere with” the vineyard’s “business relationship with the general public and the expectancy of income derived therefrom to sustain its agricultural operations.” Asserting that the vineyard had “suffered great harm” as a result, the counterclaim sought legal costs and $1 million in punitive damages from the Christina Carlson and the Elisaons. In the same counterclaim, the vineyard also asserted that unnamed “John Does” had joined with the plaintiffs “for an ulterior and wrongful purpose . . . in order to vex and harass the Vineyard Defendants.” The vineyard also reserved the right “to add parties to this action as third-party defendants or otherwise including, but not limited to, John Does 1 through 10.”
The Town Council, which didn’t formally join that counterclaim, through the Town Solicitor nonetheless later piled on by coining the term “Phantom Plaintiffs” to more colorfully describe the unidentified “John Does.” Indeed, a January 2019 “Status Brief” filed on behalf of the Town Council went on to do what even the vineyard did not, by attaching names to six of the alleged John Does, including me and five other Little Compton residents or property owners who had publicly participated in a perfectly legal effort to raise funds to support the plaintiffs’ legal efforts. This put me, as a new member of the Town Council at the time, marooned on a legal island, arguably being simultaneously a defendant in the plaintiff’s original claim against the Town Council and a potential defendant in the vineyard’s counterclaim against the “John Does.”
“The Town–purely for political reasons–has been ensnared in this ongoing litigation,” Mr. Humphrey wrote in the January 2019 Status Brief filed as part of the public case record. (Keep in mind that his clients, the Town Council, were parties to a Memorandum of Understanding in which they had agreed “not to disparage” the other parties “regarding any matters arising out of” the case.) The Town Council’s unsubstantiated accusation that the motives of the named plaintiffs and the so-called “Phantom Plaintiffs” were “political” was richly ironic–especially coming from Council members who had served continuously in elected political office for periods of years and decades, and from a Town Solicitor who has served in that politically appointed officer for over three decades now. When long-time politicians deploy the terms “politics” or “political” as dirty words, it’s worth keeping in mind that politics, no matter how messy and exasperating the process and practice can be, represent the means by which (small “d”) democratic government functions. The public’s business–that is, the business of the Town Council–is by definition “political.” Even those who claim to be “apolitical” or “nonpolitical” are making a political choice. ♦