Four years later, Martinelli wins; pigs and chickens are legal

Four years later, Martinelli wins; pigs and chickens are legal

Pigs and chickens from Martinelli's farm.
Town's attorney says appeal unlikely to prevail

SCITUATE – Frank Martinelli’s pigs can keep oinking, his chickens can keep clucking, and they can all go on smelling as they do on Peeptoad Road.

Martinelli last week prevailed against the town of Scituate, winning his case to keep his animals and continue farm operations as he and prior owners of the property at 56 Peeptoad Road have done since the 1960s. A Superior Court judge denied the town’s claim for injunctive relief to remove a public nuisance.

“I’m just elated that the case is over, that I’m able to do what I originally wanted to do when I bought the farm,” Martinelli told The Breeze & Observer this week.

It’s been “a grueling four and a half years,” said Martinelli, but winning his case and getting “grandfathered” rights for both his farm and retail store “really relieves my mind.” Many people would have given up, he said, but he wasn’t willing to concede his rights.

“I feel like people can take you to court for anything today,” he said.

Martinelli said he has no intention of going back to the higher number of animals he once had, even if he might now be allowed to. He said he will continue to maintain a “religious” cleaning program at the farm, which he says has drawn no recent complaints about smells.

Superior Court Judge Sarah Taft-Carter concluded in a decision rendered Dec. 7 that Martinelli’s farm property in North Scituate represents a legal nonconforming use because it has been in operation since before the zoning ordinance was first passed in 1965, including the raising of horses, pigs, cows and chickens. She decided there was no evidence that the farm operations are causing a nuisance.

Martinelli’s attorney, Tim Dodd, said it’s “always nice to win,” especially on a “complicated” and “well-fought case.” It was especially gratifying to win after Martinelli spent “a considerable amount of time, money and stress over these past few years defending his right to conduct” farm operations, said Dodd.

Like Dodd, town attorney David D’Agostino said he doesn’t believe this decision will set a new legal precedent, as it was decided as a “very fact-specific case.” The matter turned largely on the judge finding witnesses “to be very credible,” he said.

D’Agostino said he’s “disappointed in the decision.” Dodd updated the Town Council on the matter during its meeting Tuesday night. A new council will decide whether to appeal the case to Rhode Island Supreme Court, said D’Agostino. Because Martinelli and his attorneys were able to prove an unchanged nonconforming use for the property since 1965, “the likelihood of success on appeal would be very, very small,” he conceded. Taft Carter didn’t make a mistake on the law, he said, making for an even more difficult case for an appeal.

Town attorneys argued that the farm abandoned its nonconforming use when it was later owned by Rhode Island Incinerator Service, but Taft Carter found no evidence to support that assertion.

Martinelli has been operating the farm since his family took possession of it in 1997. A town zoning inspector issued a zoning certificate for Carlton Swedberg that year stating that the “raising and boarding (of) animals, including dogs; keeping animals, including horses, ponies, donkeys and mules, for all purposes including for sale” conformed with the town’s zoning ordinance. That same November day, Swedberg conveyed the property to entities owned by Martinelli’s wife.

Farm activities over the past 19 years have included the raising and keeping of animals, including pigs, chickens, cows, horses and donkeys, as well as agriculture.

Town Building Inspector David Provonsil issued three violation notices on Martinelli’s property, on Sept. 24, 2009, March 30, 2011, and April 16, 2012.

The 2009 notice came after a complaint from a neighbor about a “significant odor” emanating from an area of the Peeptoad Road property where the pigs were kept. Provonsil stated that the 1997 zoning certificate established pre-existing uses for raising animals, but it did not specifically identify pigs. He said the farm always kept a maximum of two pigs on the property until the mid-1980s.

According to Provonsil, “piggeries,” or the keeping of more than one pig, have been prohibited in Scituate since December of 1965. He ordered Martinelli to cease and desist with the keeping of pigs.

The 2011 notice of violation informed Martinelli that keeping up to 100 ducks, 500 chickens, maintaining a piggery, raising and slaughtering cows, and stockpiling manure beyond a certain area were all prohibited. The notice stated that “other than a horse farm, the pre-existing use(s) of the property were as occasional and/or incidental keeping of animals, of which fowl, geese and pigs are not included.”

When Provonsil issued a citation in April of 2012, he fined Martinelli $25 a day for four days for stockpiling manure. A month later, attorneys filed a complaint in Superior Court on behalf of the town alleging various violations of its ordinance listed in the 2011 complaint as well as construction of three barns without permits.

On June 11 of 2012, the court permitted three of Martinelli’s neighbors to testify, adding complaints of odors to the case challenging the farm’s operations as nonconforming uses. Taft Carter then ordered a reduction in the number of pigs to no more than 18, a ban on the expansion of quantity or breed of animal, the removal of accumulating chicken manure, and a ban on large piles of manure.

Martinelli said he was required to reduce the number of pigs on his farm from about 30 to 18 and the number of chickens from 500 to 200, numbers that hold true today.

The case went to trial in September of 2015.

Witnesses for Martinelli, longtime residents of Peeptoad Road, testified that the number of animals on the farm, including at least 25 or 30 pigs, 10 or 15 horses, a few cows, hundreds of chickens, 10 ducks and five or six sheep, remained unchanged over the decades. Animals were on the farm even when Rhode Island Incinerator Service owned the property, they said.

Taft Carter rejected the plaintiffs’ assertion that the odors and noises from the farm constitute a nuisance under the law. Any alleged violations “must fail” since agricultural operations were declared a valid use, she said. Town attorneys also “failed to provide relevant evidence at trial concerning the extent, if any, of the odor and/or loud noise emanating from the property, and they failed to set forth any argument in their memoranda as to how these alleged odors and/or loud noise constitute a nuisance,” states the decision.

“Without any evidence of the extent of the odors and/or loud noise, this court cannot find that the farm unreasonably interferes with a public right,” it reads.

The Right to Farm Act, which Martinelli claimed protected him, also prohibits nuisance actions based on farm smells.

Comments

But, once there, they don't want the country to be the country it always has been...rather their own selfish wish of what they perceive today's country atmosphere should be?

They don't come for the change. They come to change.

One question that surprises me that how farm owners living with that odor hehe...
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