TOWN OF TIVERTON

ZONING BOARD OF REVIEW MINUTES JUNE 29, 2023

The following petitions were received and heard by the Tiverton Zoning Board of Review on Thursday, June 29, 2023 at 7:00 p.m.

Members present: Chairwoman Lise Gescheidt, Vice Chairman David Collins, Mr. John Jackson, and Mr. George Alzaibak.

Also present were: Mr. Michael Marcello, Esq., Town Solicitor, John Hoyle Jr., Tiverton Building & Zoning Official, and Ms. Sally Ferreira, Court Stenographer.

1) Call to Order & Roll Call

The Chairwoman called the meeting of the Tiverton Zoning Board of Review to order at 7:00 p.m.

2) Continued from June 7, 2023:

Appeals from Decision of Zoning Official:

3a) Cease and Desist Notice (Earth Removal License):

An appeal filed by Highland Ridge Farm, LLC, 536 Highland Road Rear, Tiverton, RI (02878) (Plat 310-Lot 112), of Cease and Desist Notice issued by the Tiverton Building/Zoning Official on March 22, 2023. The Cease and Desist Notice was issued pursuant to Zoning Ordinance, Article XVIII, Section 6 (b); the appeal of the Cease and Desist Notice is pursuant to Zoning Ordinance, Article XV, Section 4(a).

3b) Cease and Desist Notice (Survey Plan):

3c) Cease and Desist Notice (Retail and/or Wholesale Sales and/or Storage): An appeal filed by Highland Ridge Farm, LLC, 536 Highland Road Rear,

Tiverton, RI (02878) (Plat 310-Lot 112), of Cease and Desist Notice issued by the Tiverton Building/Zoning Official on March 22, 2023. The Cease and Desist Notice was issued pursuant to Zoning Ordinance, Article XVIII, Section 6 (b); the appeal of the Cease and Desist Notice is pursuant to Zoning Ordinance, Article XV, Section 4(a).

3d) Cease and Desist Notice (Special Use Permit):

3e) Cease and Desist Notice (Earth Removal and Quarrying/Mining):

DECISION: Hamza Chaudary, Esq., of Adler Pollock & Sheehan PC on behalf of Highland Ridge Farm, LLC, appeared before the Board on behalf of the petition.

The applicant was sworn in.

Mr. Hoyle and Todd Romano, Esq., of Lewis Brisbois Bisgaard & Smith LLP on behalf of the Tiverton Building & Zoning Official were sworn in. Mr. Hoyle explained that in December of 2022 he received numerous complaints regarding noise, traffic, and run-off into nearby wetlands from the subject property. He had visited the subject property at least twenty (20) times since receiving the complaints and observed heavy machinery, mining and quarrying operations occurring, and that the area of excavated surfaces had increased between December of 2022 and June of 2023. Mr. Hoyle stated that he witnessed many materials being removed from the site, the applicant and current owner did not possess an earth removal license, and there was no evidence of record that the prior owners intended to quarry or mine the property.

Mr. Alzaibak asked if the applicant assumed they had the rights to a pre-existing non-conforming use, did the applicant go beyond that use. Mr. Hoyle replied in the affirmative.

Randall Souza Esq., of Kelly, Souza, & Parmenter PC on behalf of the abutters and neighbors in proximity introduced four (4) abutters who submitted affidavits for the record, as follows.

David Stewart, of 593 Highland Road was sworn in. He had resided one-hundred

(100) yards south of the subject property since 1987 and during that time he never saw mining, quarrying, blasting, or earth removal on the subject property. Mr. Stewart said that there was a lot of noise emanating from the site and that trucks carrying gravel were arriving and leaving the property. The Chairwoman asked if there were any trucks going to the site in 1987. Mr. Stewart replied in the negative. The Chairwoman enquired if there was any commercial activity during the

1990’s-2000’s. Mr. Stewart responded that one instance in 2009 in which debris was removed from the property was the only commercial activity he witnessed. Mr. Alzaibak asked if his quality of life was the same as two (2) years ago. Mr. Stewart said no, the noise had dramatically damaged his quality of life.

David Rickerby, of 60 April Lane was sworn in. He stated that over the last six (6) months the noise from the subject property had become unbearable and he was now unable to work from home. The noise was disruptive from between four (4) to eight (8) hours a day.

Wallace DeSouza, of 656 Highland Road was sworn in. He noted that there was no quarry on the site until the current owner came into possession of the property.

Joseph Bento, of 536 Highland Road was sworn in. He commented that he had lived in his current residence since 2003 and had never seen a quarry on the property. Mr. Bento stated that the property had been used as a farm, the prior owners were farmers, and he was familiar with the subject property since his childhood in the 1970’s. Mr. Alzaibak inquired if the area was peaceful prior to the current owners possession of the property. Mr. Bento replied in the affirmative, the prior owners cut hay and there was no constant grinding or trucks in the vicinity.

The Chairwoman asked for public comment.

Jonathan Clinker, of 38 April Lane was sworn in. He said that he had lived in his current residence since 1998 and had not witnessed any quarrying or rock crushing activities on the subject property until recently. Mr. Clinker was concerned about the noise and the visible dust from crushing rocks.

Rebecca Lee, of 150 Old Bulgarmarsh Road was sworn in. She stated that she had lived in her current residence since 2013 and there was no quarry on the property, there was no clearing of the property until 2019. She commented on the constant noise and bulldozer in close proximity to her yard. Ms. Lee was concerned her well was at risk.

William Ewing, of 475 Highland Road was sworn in. He had lived in his current residence since 1978 and stated that the rock crushing was a serious problem due to noise and it was affecting many people in the area.

John Melo, of 60 Bud Way was sworn in. He said that the area was previously quiet and the noise issues began about three (3) years ago. Mr. Melo noted that sometimes quarrying activities were performed on the weekend.

Norm Whitehead, of 583 Highland Road was sworn in. He bought the property in 2016 and said the noise was such an issue he would not have purchased his home if quarrying were occurring at that time. Mr. Whitehead also observed dust in the area that he was concerned about.

Mr. Chaudary stated that the RI Superior Court had jurisdiction over the matter. He noted that the applicant never received a tax credit for farming or agricultural purposes so there was no proof of abandonment of the quarrying use.

Mr. Romano commented that the applicant had no right of earth removal. The evidence presented by the cease and desist letters and the public hearing were enough to prove the subject property was now a defunct gravel pit.

Mr. Souza pointed out that the site was zoned R-40 and there was no house on the property, so quarrying was either an illegal use or a legal nonconforming use. In the case of the latter the legal nonconforming use was in violation of the zoning ordinance. He stated that the neighbors were drastically affected by the quarrying operations and any quarrying use had been abandoned for decades.

The Board took no further input from the applicants and there were no comments from the audience. The Chairwoman closed the public hearing.

Mr. Alzaibak said that the quarrying activities had expanded beyond what could have been considered a pre-existing nonconforming use so the zoning ordinance had clearly been violated. He considered the effect on the neighbors unfair. Mr. Jackson stated that the Town needed to have some kind of control over the matter.

The Chairwoman made a motion to affirm and uphold all five (5) cease and desist notices issued March 22, 2023 by the Building and Zoning Official. Mr. Alzaibak seconded the motion. The motion was unanimous. Voting in favor of the motion were: Ms. Gescheidt, Mr. Collins, Mr. Jackson, and Mr. Alzaibak.

3) Adjournment

Mr. Alzaibak made a motion to adjourn the meeting at 10:21 p.m. (Whereupon the Zoning Board of Review meeting ended at 10:21 p.m.)

Submitted by: Tara Ferreira Approval Date: September 6, 2023 Tara Ferreira