Prospect ZBA denies CSA owners’ appeal

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.