Mr. Davis stated that first, he has been aggrieved by the Zoning Certificate denials; secondly, because of the use of the property is non-conforming, it puts Mr. Patterson, who is the Town Council President in a position where he is benefiting from selective enforcement of the zoning laws. Mr. Davis also stated he believes this hurts all residents, townwide.

Chair Richard Booth stated he feels for him but he does not believe that this Board has any jurisdiction in the matter.

Mr. Davis disagreed with the Chair.

At this time Chairman Booth asked Solicitor Ruggiero to weigh in on the RI General Laws and the Exeter Code.

Solicitor Peter Ruggiero stated that the requirement is that you must show the aggrievance standard first because otherwise, anyone could aggrieve anything on anyone’s property.  The court has specifically said that an appellant must prove aggrievement on themselves in order to appeal something.  The Solicitor then gave an example of someone applying and then you appeal a decision of that application you are automatically constituted to have been aggrieved if something happened to you personally. He then explained if you are trying to enforce something against another person’s property, you have to show how you are aggrieved by lack of enforcement, or alleged improper enforcement.  The Zoning Board does not have jurisdiction if that aggrievance standard is not met, which is a precondition. Solicitor Ruggiero then referenced RIGL 45-24-63, a: A Zoning Ordinance adopted pursuant to this chapter shall provide that an appeal from any decision of an administrative officer or agency charged in the ordinance with the enforcement of any of its provisions may be taken to the Zoning Board of Review by an aggrieved party.  He stated that this is a requirement for there to be jurisdiction. Solicitor Ruggiero then referenced from Exeter Code, Section 1.2.7, a: An aggrieved party, for purposes of this act shall be: Any person or persons or entity or entities who can demonstrate that their property will be injured by a decision of any officer or agency responsible for administering the zoning ordinance of the Town of Exeter; or b. Anyone requiring notice pursuant to G.L. 1956, title 45, chapter 24.  The Solicitor stated that we are trying to determine if Mr. Davis can demonstrate that his property will be injured by this decision by the Zoning Official not to prosecute a case.

Mr. Davis posed a question that if someone does something that violates the zoning ordinances, and the immediate abutters do not complain, then there is no violation? Solicitor Ruggiero stated that there may be no action to enforce.

Mr. Davis confirmed that there may be no action, so therefore the violation will stand in eternity? The Solicitor stated that yes, this would be possible.

Mr. Davis shared that he feels this is an absurd result.

Chair Richard Booth stated he feels Mr. Davis’s frustration, but that is not the Boards jurisdiction. The Chair then asked the members of the Board if they had any questions.

Susan Franco-Towell asked to clarify that the provisions read into the record being founded upon that the person claiming a grievance, property is directly affected.  The Solicitor replied that this was correct; it is not a personal injury, but a property injury.

Discussion ensued regarding the process of making a motion and determining on how to proceed. Susan Littlefield then asked if the appellant was making an appeal on the decision made on his property, then that would automatically make him the aggrieved party. Solicitor Ruggiero replied in the affirmative and stated that is what makes this complicated because his appeal is on someone else’s property.

Chair Richard Booth then shared that the Board needs to decide whether they have jurisdiction on this matter and to show whether or not Mr. Davis has been aggrieved.

 

After some further discussion, Loren Andrews made a motion per RIGL 45-24-63 a and b; that due to the fact, that the Board does not have enough evidence to indicate that the appellant is an aggrieved party in this matter, so we (the Board) cannot hear the appeal. Tom McMillan seconded the motion.   A vote was taken and was all in favor 5-0 (Richard Booth, Tom McMillan, Loren Andrews, Susan Littlefield and Susan Franco-Towell). Accordingly, the appeal was not heard, and was denied.

 

B.   Asa Davis, Applicant and Owner of property located at 146 Beechwood Hill Trail, Exeter, RI; the appeal of the Town of Exeter, Owner of property located at 169-175 South Country Trail, Exeter, RI; Zoned RU-3 and further designated as Assessor’s Plat 62, Block 3, Lot 1.  Grounds for the appeal is based on the property use is in violation of Exeter Zoning Code; and the decision of the Zoning Inspector not to enforce.

Chair Richard Booth introduced this appeal and then he asked Mr. Davis to articulate how this has aggrieved him directly for an appeal.

Mr. Asa Davis stepped forward to speak on behalf of this appeal against the Town of Exeter and

the Zoning Officials decision not to enforce. Mr. Davis stated that in this case his aggrievement is based on the fact that the Pawcatuck River, sole source EPA designated aquifer, runs under the town garage site, where the illegal salt shed was constructed. The runoff from that salt shed goes into the ground water (the town’s specified ground water overlay), and runs directly south to southwest directly under his property, along with all other thousands of residents and businesses in South County way down to the RI coastline and into Southeastern Connecticut. Mr. Davis stated that he believes this constitutes a physical aggrievement.  He added that salt water testing has not been conducted before or during, or after use of the salt shed.  Salt from road maintenance operations has been implicated in deaths of crops and livestock across New York State and other areas. Mr. Davis again stated he believes this is a physical risk, not only to his property, but anyone else who is downstream of that aquifer on that site.

At this time, Chair Richard Booth stated that the Board is faced with the same decision: does Mr. Davis have an aggrievement?

Susan Littlefield asked to clarify that Mr. Davis is appealing the decision of the Zoning Inspector not to enforce and questioned if the Board has anything that says he did not enforce?

Asa Davis replied that he supplied emails that indicate that Mr. Morgan would not  pursue enforcement at that site either.

Chairman Booth asked if the Zoning Inspector would be willing to offer any testimony – as to why he chose not to address the complaint.

Mr. Morgan then distributed “Title 45 Towns and Cities, Chapter 24 Zoning Ordinances, RI General Laws 45-24-63 and 45-24-31” to the Board members.  This was labeled for the record as exhibit A.

At this time, Mr. Hal Morgan was sworn in by the stenographer.

Chair Richard Booth asked Mr. Morgan if he was the Zoning Official for the Town of Exeter.  Mr. Morgan replied in the affirmative.

Chairman Booth asked to confirm that this complaint had been brought to him about the salt shed and the runoff from the salt affecting the ground water.

Mr. Morgan stated that none of this is germane; the question is was the complaint valid and he feels  the  complaint  was  not  valid,  therefore,  nothing  should  be  investigated  because  the complainant was not an aggrieved party, and that is where it ends as far as he is concerned. Chairman Booth said he wanted to think this through and used another example that instead of this being a salt shed that it was a nuclear waste facility and was leaking into the ground water and affecting peoples wells downstream.

Hal Morgan replied that he won’t participate in sophistry.

Loren Andrews asked if there was not a more appropriate agency that this would be addressed by, other than the Zoning Board, if there was runoff?

Asa Davis asked to read a brief statement if the Board would allow him too.  The Chair acknowledged and agreed to allow.

Mr. Davis read the following prepared statement:

The facts in this case also speak for themselves, and are supported by the public record. Again, zoning was in effect before this site became a town garage. The current use is not grandfathered. A special use permit was required. Because it didn’t happen, and because our prior DPW Director regularly ignored town ordinances and state laws and regulations, in 2019 we wound up with a 14-count notice of violation from the DEM for wetlands clearing, driving through the stream, and construction of multiple buildings including a salt shed, over an EPA designated sole source aquifer, that supplies drinking water to thousands of residents and businesses in the towns south of us, all the way down the coast. Per state regulations on salt sheds, if they’re used over the aquifer, they are required to be weatherproof, have an impervious foundation, and have runoff collection. The salt shed Mattscheck built not only is in the wetland setbacks and didn’t have DEM permit, but it doesn’t meet these requirements. This site is in the town’s groundwater recharge zone, and the use and buildings didn’t get reviewed for that either. Roughly $80k in town money was spent on the salt shed. Now, not only can’t we use it to store salt anymore, but we’re going to lose the truck pull and baseball field parking lot per our last settlement offer. We’ve spent another $100k on engineering and legal fees, and we still don’t have DEM’s agreement that the remediation work will be acceptable. That cost is likely to be in the hundreds of thousands, because the town isn’t going after Mattscheck, the taxpayers are on the hook, and it’s not budgeted. The best way to solve a problem is to keep it from happening in the first place. The zoning codes with groundwater overlay exist for a reason – to protect a common resource relied on by so many people in and out of Exeter. This property needs a special use permit, so future additions, expansions, and other work get the proper level of scrutiny. Mr. Morgan’s decision in this case sets the stage for more, expensive problems in the future, and it should be overturned. Most of the issues are under DEM jurisdiction, but they are also under town jurisdiction.

 

Tom McMillan asked how this matter came to the DEM’s attention.

Mr. Davis stated that the former DPW Director Mattscheck failed to renew the town’s stormwater permit; DEM then sent an inspector to get that permit renewed and determine why it had not been refiled, and discovered the salt shed under construction without proper DEM permits. Mr. Davis explained that the stormwater permit is something that every city and town has to renew, every two or three years. He stated that it was Mr. Mattscheck’s responsibility to renew this permit, and he neglected to do that.

Further discussion ensued between Mr. McMillan and Mr. Davis.

Loren Andrews stated that his opinion is that there might possibly be a valid argument with runoff and groundwater contamination, now since the salt shed was constructed, that’s an issue with DEM and the towns DPW. But as far as the injured party, we go back to the same thing as we did on the other appeal, and based on this RI General Law, Mr. Davis is not showing evidence that he (Mr. Davis) is an injured party.  He may have some valid arguments but that the problem lies with DPW.

Tom McMillan asked Mr. Davis if anyone had tested the water.

Mr. Davis replied no, he doesn’t believe so and thinks that’s part of the problem.

Mr. McMillan stated that without that knowledge, he would question the validity of his complaint.

Susan Franco-Towell asked Mr. Davis about having any water test results, as she does not see anything in his appeal from DEM or the town showing that the water supply has been in peril.

Mr. Davis replied that “in peril” implies risk and he does believe there was risk.

Ms. Franco-Towell then stated that unless there were valid water test results taken by an approved water testing facility, that they are grasping at straws. She shared that she applauds Mr. Davis’s sense of community and that he cares about these issues is laudable and she admires that.  However, she continued that the facts are what they are and does not see any actual evidence and is not the purview of the Zoning Board.

Mr. Davis offered his additional reply and that he disagrees.

Chair Richard Booth asked to confirm that the salt shed is not currently being used for salt storage any longer.

Mr. Davis stated from what he understands, is that this shed is now being used as an equipment storage shed.

There was some more discussion between the Board members prior to the Chair asking for a motion.

Loren Andrews made a motion that due to RI General Laws 45-24-31 that Mr. Davis has failed to demonstrate where the aggrieved party status falls, so as the Zoning Board, we cannot hear the appeal. Tom McMillan seconded the motion. A vote was taken and was all in favor 5-0 (Richard Booth, Tom McMillan, Loren Andrews, Susan Littlefield and Susan Franco- Towell).  Accordingly, the appeal was not heard, and was denied.

 

C.   Renew Solar RI Exeter Mail, LLC, Applicant; and Rina Stamas, Owner of property located at 148 Mail Road, Exeter, RI; Zoned RU-4 and further designated as Assessor’s Plat 71, Block 4, Lot 14; a request for Zoning Determination in reference to Special Use Permit.

Chair Richard Booth introduced this appeal and turned it over to the Attorney representing the applicant, Ms. Kelley Morris Salvatore.   Attorney Salvatore explained that this appeal is in reference  to  RIGL  45-24-54,  the  Enforcement  and  Administration  provisions  for the  Zoning Enabling Act and that this provision allows people to ask for guidance and clarification from the Zoning Official. She explained that she had prepared a letter to Mr. Morgan with a proposed reply and said they discussed this; and she also spoke to Solicitor Ruggiero.  Ms. Salvatore shared that Mr. Morgan declined to issue a determination and took no action.  In that event, when a written response is not provided within the 15-day period, the party has a right to appeal to this Board. Attorney Salvatore offered to combine the two appeals (on the agenda this evening), as they are exactly the same situation, for purposes of this appeal.  Attorney Salvatore explained this relates to RIGL 45-23-61 which requires that when an applicant requires both a special use permit under the local zoning ordinance as well as planning board approval, the applicant shall first obtain an advisory recommendation from the planning board as well as conditional planning board approval for the first approval stage, which may be simultaneous, and then obtain a conditional special use permit from the zoning board. She continued to explain that then they return back to the Planning Board for the other stages which include preliminary and final plan. The intention of the zoning enabling act is that a special use permit should be conditioned on later stages of review, so it doesn’t expire, and actually shouldn’t take effect until the final plan is approved, and then the SUP would expire a year later.  Attorney Kelley Morris Salvatore stated that is their position on both of these appeals before the Zoning Board. She also wanted the Board to understand that in this appeal (for Mail Road), master plan is vested for two years by right; then there a two more by right one-year extensions, for a total of four years; then go back to planning for preliminary plan which is vested for another two years, then two more by-right extensions for another two years, totaling eight (8) years of approvals that the special use permit needs to stay granted, but not effective, because, Ms. Salvatore stated that towns don’t want some relief from the zoning board to take effect unless the developments approved. Accordingly, on behalf of her client, she is asking the board to issue the decision, that Mr. Morgan, respectfully, declined to issue. Ms. Salvatore again stated, that this is their request for both of these appeals before the board is that you find that the special use permit, that the zoning board granted previously, are conditioned on further stages of review.

Further discussion and explanation ensued between Attorney Morris-Salvatore, the board members, and Solicitor Ruggiero.  Solicitor Ruggiero stated that her argument is reasonable, but it doesn’t conform to the current state of the law.  Solicitor Ruggiero continued to explain that the legislature has a land use commission currently meeting and they are discussing this very problem, and stated that there is no “stay” because other review is pending.

Further discussion ensued with Attorney Morris-Salvatore, Solicitor Ruggiero, and the board members regarding this request for interpretation.

 

At this time, Chair Richard Booth made a motion to deny these appeals (as listed on the agenda ad C. Renew Solar RI Exeter Mail, LLC and D. Renew Solar RI Exeter Ten, LLC) based on the evidence presented and on the legal advice of our Solicitor, that there is no appealable action, noting Zoning Ordinance 1.3.F.H states that special use permit granted under this section shall expire 18 months after the Zoning Board approval, unless the applicant has actually put the subject property to said use, or has obtained a building permit for said use. Susan Littlefield seconded the motion; vote was taken and was all in favor. The appeal was unanimously denied.

 

D.   Renew Solar RI Exeter Ten, LLC, Applicant; and the Estate of James Marshall, Owner of property located at 590 Ten Rod Road, Exeter, RI; Zoned RU-4 and further designated as Assessor’s Plat 37, Block 1, Lot 5; a request for Zoning Determination in reference to Special Use Permit.

As both of these appeals were heard together (testimony provided above), please refer to the below motion.

Chair Richard Booth made a motion to deny these appeals (as listed on the agenda ad C. Renew Solar RI Exeter Mail, LLC and D. Renew Solar RI Exeter Ten, LLC) based on the evidence presented and  on the  legal  advice  of  our  Solicitor,  that there  is  no  appealable  action,  noting Zoning Ordinance 1.3.F.H states that special use permit granted under this section shall expire 18 months after the Zoning Board approval, unless the applicant has actually put the subject property to said use, or has obtained a building permit for said use. Susan Littlefield seconded the motion; vote was taken and was all in favor. The appeal was unanimously denied.