Prospect ZBA denies CSA owners’ appeal

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Attorney Kenneth Slater, Jr. of Hallora & Sage LLP, representing the Caporasos, argued that community supported agriculture is not a retail sale during a hearing at Prospect Town Hall Tuesday night.

PROSPECT — The owners of a small farm on Straitsville Road cannot allow shareholders to pick up produce on their property, the Zoning Board of Appeals (ZBA) ruled Tuesday night.

The ZBA upheld a cease-and-desist order in a 3-2 vote following a two and a half hour public hearing.

The board ruled that Whitney Miller-Caporaso and Christopher Caporaso violated a special permit issued in March 2008 to allow the couple to grow crops in a greenhouse on their one acre plot of land at 176 Straitsville Road.

Originally, the Caporasos planned to grow flowers to sell to The Flower Farm in Prospect, but after that fell through, they decided to grow a variety of vegetables, which they sold to members of their community supported agriculture (CSA). Under the CSA system, members pre-pay for a share of the farm’s produce at the beginning of the growing season and pick up their share once a week. CSA members assume the risk or bounty associated with any particular growing season.

The special permit stipulated that the plants would be transported off-site for sale and that there would be no direct retail sales to the general public on the property, two clauses the Planning and Zoning Board said the Caporasos violated.

During the hearing, attorney Kenneth Slater, Jr. of Hallora & Sage LLP, representing the Caporasos, argued that the CSA model did not qualify as a direct retail sale to the general public because shareholders must apply to become members and are therefore not the general public.

“You can’t just show up at that farm and say ‘I would like to buy some beets,’” Slater said.

He also argued that the transaction was not a retail sale because retail involves the sale of goods in small quantities. Since members buy an entire growing season’s worth of crops, Slater said this qualifies as wholesale.

Slater pointed to a case involving Costco that ruled the store was not a retailer because it sold goods in bulk, even though it sells directly to consumers.

About 30 of the CSA’s 75 members pick up their shares on the property. Other shares are dropped off at locations in New Haven and Stratford, Slater said. Members must pick up their shares during a two-hour window either Wednesday or Friday, he said. He said there was a limit to how many members could join the CSA because of the small size of the farm.
Zoning Enforcement Officer and Land Use Inspector Bill Donovan testified that the current use of the farm exceeded what was approved under the special permit.

Donovan cited articles stating that CSAs sold directly to community members.

“In my opinion, there’s definitely retail sales taking place here,” Donovan said.

He also referred to the town attorney’s opinion that there is no federal or state right to farm that overrides local zoning regulations. In any case, he said, the property does not qualify as a farm under Prospect regulations because it is less than five acres. He said that since CSAs aren’t a permitted use under Prospect’s zoning regulations, they are not permitted anywhere in town.

He said he was not debating the merits of the CSA, which he felt was a good idea in general.

“It’s not about farming. It’s about a use of land in a residential zone,” Donovan said.

Planning and Zoning Commission Chair Donald Pomeroy also testified that the Caporasos were running a retail operation in violation of the special permit. He said the Caporasos have not come to the board to amend the regulation.

“They seem to be decent, hard working people trying to make a living, but we have to do it within the regulations that the entire town has to operate under,” Pomeroy said.

Pomeroy said the decision was not personal.

“It’s about what we would deem is best for the community,” he said.

He said the special permit was a compromise between neighbors who were concerned about traffic in a residential neighborhood and the Caporasos dream to build a small farm. He said the Caporasos assured the commission there would be no sales on the property.

Of about 50 people attending the hearing, about half spoke in support of the Caporasos, including CSA members, neighbors, and supporters of local agriculture. No one spoke against the farm.

Some people touched on the issue of traffic, which was the underlying concern when issuing the special permit.

“We were very sensitive to the traffic on that road and the potential for an accident,” Pomeroy said.

He said no parking lot was approved on the property.

Jim Nolan, a two-year member of the CSA, said he has never seen more than three vehicles on the property at one time and there has never been a traffic problem.

Diane Hamlin-Anderson, who lives three houses down from the farm on Straitsville Road, also said the business is quiet and doesn’t cause any traffic problems.

Another neighbor, Allen Sills, said he opposed the farm in the beginning but now supports what the Caporasos are doing.

During public comment, several people supported the argument that the operation did not qualify as retail sales to the general public.

Roger Saucier said the fee members pay is not for the produce itself but for the service of growing the food, similar to services other businesses provide cutting a tree or grooming a dog. As such, he said, it is not a retail sale.

Robert Moore of Woodcrest Drive said he doesn’t know the Caporasos, but he believed the crops were dividends paid on an investment, similar to dividends paid on stocks, and therefore not retail.

Others touched on the benefits of local sustainable agriculture and business.

“I feel very personally about this,” said Brian Saucier, who previously worked on the farm.

In the end, the issue wasn’t just about retail sales on the property, but the stipulation that plans be transported off-site for sale.

Board member Chuck Witkowski said the Caporasos should have appealed their permit or applied for a new one.

“This new thing came in without her coming in and applying for it. … Now it’s just something that’s going on and on and on and it’s been thrown up in everybody’s face,” he said. “Apply for the right paperwork and do it right. … It can be straightened out.”

David Jones agreed that the operation amounted to retail sales. He said the CSA was a great idea, but that wasn’t the issue the ZBA was debating.

“We’re not here to decide whether we like CSAs or whether we like farming,” said ZBA Chair Marianne Byrne.

She said the original intent was for the Caporasos to grow crops to be sold wholesale to a company that would sell the crops off-site, which they were not doing.

“Unfortunately, we do live in a community where if we don’t follow the rules … if everyone chooses to do what they want without following the rules then the community does break down,” Byrne said.

Commissioners David Michaud and Suzanne Loud were the only ones to vote in the Caporasos favor.

“This is clearly not retail sales,” Loud said.

Following the decision, those that supported the farm expressed disappointment and frustration.

“Were really disappointed in the decision because the CSA is good for the community,” Slater said.

Whitney Miller-Caporaso said she would review her next options with her lawyer.

“This is my life. …There was no one in opposition. Everyone came in support,” Whitney Miller-Caporaso said.

The Caporasos can appeal the decision to a higher court, file an application to amend the zoning regulations, or file to amend the special permit.

9 COMMENTS

  1. @prospectconnecticut No you don’t know anything about my character. Actually You don’t know anything. Typical government, Can’t win the debate so they try and attack you personally. You follow the government playbook. However We all know your character. Overpaid LAZY Government employee, who thinks they are entitled to a corporate pension. No Education, No Intelligence as proven by this thread, Biggest Drain on our system. When the government goes bankrupt, which will happen, You can ask me if I want paper or plastic. Good Day to You.

  2. Let me guess, I hit the nail on the head with my character profile of you? 🙂

    I think it’s great that you are taking the initiative to be heard. Take it a step further, run for office, make a difference.

    In the meantime, live by the rules.

  3. @prospectconnecticut Wow The more you speak, The more you show your ignorance. Oh wait you’re a CO, I shoulda known you were a government worker. This will be my last response to you, You don’t have the gray matter to engage in an intelligent discussion. Like I said in an earlier post “true Intelligent Open-minded people live and work in the private sector. The government gets the power-hungry puffed-up closed-minded people.” You keep proving my points.

  4. @theNOTsogreatone Nothing personal about not wanting to break the law. Let me see how well I know your type… You also support marijuana use, play the guitar and are a “writer”. Your Dad is probably exactly the same too right? Guitar playing, weed smoking, etc. I see your type in my line of work all the time. (I am a CO). Rules are rules, laws are laws. Live by them or do us all a favor and go somewhere you don’t have to.

  5. @theNotsogreatone I’m glad change is coming. That means you are running this year for office, correct? Good luck!

    A CSA is very easy to understand… Guess what? I am a member of the LEGAL one on Scott Road. I love getting fresh produce, learning about the process, and supporting the local people. I do not like breaking the law which is what Whitney was doing. Tommy of the Flower Farm is great, head over there and tell him I sent you.

    “The attorney proved it was not retail sales”? We must have been at different meetings. The one I was at the attorney couldnt proove ANYTHING. That is why Whitney lost.

  6. @prospectconnecticut It is obvious by your remarks that you can’t grasp the idea of a CSA. It is unfortunate that we live in a society with such narrow-minded people. I guess we can hope that the youth will change the world and bring America back to what it once was. The land of liberty and freedom. That is what is lost. Let me call out your stupidity. 1. Who cares if they call it a farm. I say its a garden. Makes no difference what you call it. Shows you are narrow-minded. 2.)The lawyer proved it wasn’t retail sales, just as Costco isn’t a retail store as stated by the Supreme Court. But you can’t grasp that. Shows your narrow-minded. 3.) What difference does it make that the ZBA is 100% Volunteer, Stupid is Stupid. The true Intelligent Open-minded people live and work in the private sector. The government gets the power-hungry puffed-up closed-minded people. Always have. But the youth will change that. They are smarter and wiser than those in power now. Only a matter of time. I hope you are ready for the change because it is happening now. Just look at The 99% and the Tea Party, Change is coming.

  7. I was also at the meeting. The only people who showed it was “personal” where the ZBA members that sided with Bodchitta Farms. They made it very apparent that they had an established “Friendship” with the farm owners. The “facts” were the facts. These “facts” were they were only allowed to sell “Off Site” and no “retail sales”. They were obviously doing both. The ZBA got it perfect.

    I also think it is funny that the people at the hearing, the citizens news and attorney kept referring to it as a “Farm” when it was proven that it isn’t. It is simply a residential piece of property, in a residential neighborhood. A farm needs to have 5 acres of land.

    Not sure which member you saw making faces. I was three rows back and didn’t see it. I did observe one zba member getting off topic a few times, but they were brought back on topic quickly. Let’s keep in mind the “government” you speak of, the ZBA, is 100% volunteer.

  8. One thing not mentioned in this story is the behavior of the ZBA. The eye-rolling, Hurumphing, sighing, and childish behavior of the ZBA showed all that was wrong with government. Their total disrespect towards the Capraso’s and the CSA members prove that this WAS personal. One member was actually making faces towards Whitney and her lawyer. It also shows They knew how they were going to vote before the hearing. They had their own agenda, refused to listen to the facts and got it wrong. Another fine example of stupidity in government.