Zoning Board pulled into complaint over Dowling storm water plan

Zoning Board pulled into complaint over Dowling storm water plan

Hearing set for Dec. 10

NORTH SMITHFIELD - A dispute over who's responsible for enforcing pollution prevention regulations at Dowling Village will be heard by the town's Zoning Board of Review responding to an appeal filed by the Valley Alliance for Smart Growth.

VASG first filed a complaint last year alleging that construction at the site was not in compliance with the approved development plan.

The letter, delivered to the town on Dec. 27, 2012, requested that¬?the town issue a cease and desist order on Bucci Development until the company, which is currently in the process of building a large retail complex off Eddie¬?Dowling¬?Highway, performed an invasive plant study, groundwater testing and a study of sediment damage in Booth Pond.

The town denied the complaint last February, stating that the Department of Environmental Management had exclusive jurisdiction over the applicable permit, and had found no violations.

But Caroly Shumway, chairwoman of VASG, says that DEM has since stated that the responsibility to enforce regulations does lie with the town, and that is part of the basis for her organization's zoning appeal.

In a letter dated May 31, DEM answers questions from both VASG and town officials about who has the authority and obligation to enforce provisions in the Storm Water Pollution Prevention Plan.

"DEM and the town have concurrent authority to enforce the provision of an approved SWPPP once the town has accepted a DEM approved SWPPP," it states. "Through this response, DEM does not address what obligations a municipality has with respect to its own ordinances - obligations pursuant to a municipalities ordinances are strictly within the purview of that municipality."

On Tuesday, a hearing on the matter was delayed on request of VASG Attorney Christopher D'Ovidio, who said he had received a motion to intervene and a motion to dismiss the appeal, filed by Attorney Michael Kelly of behalf of the developer, just one day before.

"We should have the opportunity to review the motion, " said D'Ovidio.

"I literally received it yesterday. In all fairness, do you really think Valley Alliance can argue against a motion to intervene and a motion to dismiss with less than a work day?"

Asked if he felt that Kelly had the right to intervene, D'Ovidio replied would not know until he reviewed the documents.

Assistant Town Solicitor Stephen Archambault argued that neither Kelly nor the town were required to provide VASG with notice.

"It is clearly not fatal to hearing this applicant tonight as to whether or not notice was complied with here," said Archambault. "There's nothing in our town ordinance that requires Mr. Kelly to provide notification."

Kelly also argued against delaying the hearing.

"We have this appeal that's been hanging over this development's head since February. We have to disclose to potential tenants that there's a pending appeal. It's not helpful," said Kelly.

"In regard to the suggestion that this appeal does not involve Bucci Development Inc.- it's just blatantly false," said Kelly.

"They filed a complaint to try to get the town to stop the project. How could one say that that does not affect my client?"

D'Ovidio ultimately withdrew his objection and the Zoning Board unanimously granted Kelly's motion to intervene. They also granted the VASG attorney's request for additional time and continued the hearing to Dec. 10.

While the board did not address the motion to dismiss this week, Archambault and Kelly questioned if the organization had "perfected" their appeal. According to Section 8.4 of the town's zoning ordinance, appeals must be filed within 20 days of a decision and must be accompanied by certain documents, including a list of property owners within 200 feet of the property in question.

"The appeal by VASG didn't included the abutters list," said Archambault, adding that the town did not receive the list until Aug. 5.

Shumway and D'Ovidio, however, say that they provided that list and that the zoning inspector signed off that their appeal was complete.

VASG has alleged that Bucci deviated from the SWPPP by using hay bales and failing to install groundwater wells, and that photos of the site documented evidence of sedimentation.