Board approves special-use permit despite abutter opposition
The Zoning Board of Review approved a special-use permit Tuesday allowing Donna Perry of Providence to construct a two- bedroom single-family home on Stern Street.
The vote was unanimous and came over the objections of abutters William MacLean, Linda MacLean and Thomas Raczelowski. William MacLean and Raczelowski had raised objections at the initial hearing on March 26. Their protests forced the Zoning Board to send the matter back to the Planning Commission to review questions about drainage and flooding. The property sits in the high groundwater table.
In response to the concerns, Daniel Cotta, an engineer for Knollwood Building who represented Perry, revised the plan by enlarging the rain garden on the property to deal with storm-water runoff from a 25-year storm, meaning an amount of rainfall with a one in 25 statistical probability of happening in a given year. The ordinance requires only the capacity to deal with a 10-year storm, he said.
Cotta said the new home would not increase ponding on the land abutting Perry’s property. The abutters on May 28 reiterated their conviction that the new construction would cause ponding on their property. However, they did not provide expert witnesses to substantiate their claims.
Board member Richard Boren said the zoning hearing had been continued from March and sent back to the Planning Commission to give the abutters an opportunity to hire expert witnesses.
“I fully expected to see pages and pages of your experts’ testimony,” he told MacLean. “I didn’t expect the same testimony today that you gave before.”
He added that MacLean was speaking as a “nonexpert.”
MacLean said he had not understood expert witnesses would be necessary.
“We’re a quasi-judicial body,” Boren replied.
MacLean said if the board had suggested he bring in expert witnesses, he would have complied. However, Boren said he had told the abutters they needed a lawyer and experts.
Then MacLean said he had questions for Cotta. “What you’re doing here,” he asked, “will that create ponding?”
Cotta said there was already ponding on MacLean’s land.
“I disagree you have no ponding on your property now,” Cotta said. He went on to say MacLean had known he should consult an engineer who could verify his statements.
“You did call experts,” Cotta said. “Don’t claim you didn’t have the opportunity to do this.”
Chairman Thomas Ginnerty interrupted the dispute and said he did not want the two parties arguing during the hearing.
According to Raczelowski, he did ask other engineers to testify at the hearing but none wanted to do so. Being a small town, he said, the engineers did not want to contradict a colleague. “So, I felt we were definitely on the short end of the stick.”
“The problem is that the town and Planning Commission went to a great deal of effort and thought about this section of the zoning ordinance and they made it a two- step process,” said Boren. “Most of the time it’s a one-step process, but in your area it’s really a two- step process.”
According to Boren, applicants must first go before the Planning Commission, which can require one or two meetings to consider the issues. If the planning board recommends the project, the applicants come before Zoning Board of Review.
“We have the option of making our own independent decision or going along with the Planning Commission,” he said. “We thought Mr. MacLean had some very important points.”
Boren said the Zoning Board opted to defer a decision until the Planning Commission looked at the drainage issue. But, he repeated, the panel “fully expected” the abutters to use the delay as an opportunity to hire engineers so they could assemble a case explaining why they disagreed with Cotta.
“We did meet with the Planning Commission,” Raczelowski said. “It didn’t matter what we had to say.”
He insisted the water doesn’t run off to the southwest, as Cotta had testified. “It puddles up on my property and stays there,” he said.
Ginnerty said he was not happy about granting the special-use permit. However, the applicants had met the legal standard and the abutters had not.
“The decision is based on expert testimony,” he said. “You need scientific evidence to fight these types of projects. You can’t give anecdotal evidence. You need an expert’s testimony to contradict the [applicant]. There isn’t any other way. You did not present the evidence you needed to present, so there isn’t anywhere to go with this.”
However, Zoning Official Fred Brown suggested if the board was going to approve the special-use permit, the panel could strengthen one of the conditions the Planning Commission imposed. The planning board had said fences could be erected on the property, but no fences could block or obstruct the water flow to and through the site. Brown said he spoke with the town engineer who agreed the condition should be broader to include any structure, not just fences. Counsel Wyatt Brochu suggested the board could also add landscaping elements to the condition.
The Zoning Board then approved the special-use permit provided the construction is completed “in strict accordance with the site and building plans”; is in compliance with the Planning Commission’s recommendations; and is in compliance with the Zoning Board’s additional stipulation against structures or landscaping that would interfere with water flow.