EAST PROVIDENCE – A full 45 minutes before TLA-Pond View Recycling Facility attorneys were to appeal a May 27 zoning violation before the Zoning Board of Review, at least 60 residents conducted a vociferous rally in front of City Hall on Thursday night.
Most members of the congregation, including men, women and children, wore red T-shirts with the catch phrase “Enforce The Law & Protect Us” in white on the front, while others carried signs reading, “Stop Pond View Now!” and “Hold Pond View Accountable!”
“I'm hoping the Zoning Board of Review stands by Zoning Officer Ed Pimental and forces Pond View back into compliance,” offered Ken Schneider, co-president of an anti-Pond View organization entitled the East Providence Coalition, during Thursday night's rally. “They've been out of compliance since they opened in 1998, and it's about time they suffer the consequences.”
“We think the board will back the zoning officer, the reason being that the facts are the facts,” he added. “Our Planning Department sent out a 47-page document with photos and documentation of everything Pond View's been doing wrong since they opened in 1998, and we want to see the board back that evidence.”
Almost four hours later – after questioning of Pimental by Assistant City Solicitor Gina DiCenso and cross-examination by TLA-Pond View lawyer Kevin Bristow – Gene Saveory, the Zoning Board of Review Chair, called for the hearing's continuance.
That continuance will be held on Thursday, Oct. 13, at 6 p.m. inside City Council chambers.
“I'm disappointed that no decision was rendered; I can also understand why they'll continue it,” Schneider said just shy of the 11 o'clock hour. “They heard a lot of testimony, but the attorneys are still making their cases.
“I think the city is very much proving its case,” he continued. “Their attorney (Bristow), I feel, is grasping at straws.”
Mentioned Jo-Ann Durfee, considered the Coalition's “First Lady” of sorts: “The purpose of the Zoning Board, under Section 19-2 (of the City) Charter, is to promote the public health, safety and general welfare (of its citizens). Residents are counting on the Zoning Board to uphold this law, enforce it and protect us.”
Durfee is just one of dozens who have complained for years about the dust, odor and noise emanating from the Pond View facility; they also say they've experienced serious health issues as a result.
Back on May 27, Pimental issued TLA-Pond View officials a notice of violation for exceeding the amount of processing it practices under the zoning ordinance, which allowed for recycling no more than 150 tons of construction and demolition debris per day.
Pimental, with the help of the consulting firm DiPrete Engineering, determined Pond View violated its original use variance in several manners, among them: Operations have conflicted with the approved site plan, including where stored materials and processing areas are located; instead of recycling only wood products, as the original use variance states, the facility has been grinding metals, concrete, street-sweeping materials and stone; it hasn't maintained a vegetated berm; and operations have occurred before or after the listed hours of 8 a.m.-4 p.m. on weekdays and 8 a.m.-noon on Saturdays.
Most importantly, the facility has expanded to accepting far more than 150 tons per day for debris processing.
“The Pond View facility doesn't exist as a matter of right; it exists because, in 1998, they received from the Zoning Board of Review a use variance, which means the board had given them permission for a particular kind of use that isn't allowed by the zoning ordinance,” explained Billy Conley, an attorney and Rumford resident who backs the Coalition.
“The kind of use variance they accepted in 1998 is determined by the record in front of the board; that's why they granted that use variance,” he added. “Now, flash forward to TLA-Pond View's filing of an application to the Department of Environmental Management, one that stated it wanted to increase production to 1,500 tons per day.
“That occurred last late January, early February. When that was filed, the zoning officer (Pimental) reviewed that application, and saw there are significant deviations from the Zoning Board record for that original use variance.”
Pimental, under oath, testified that he and Planning Department members had studied from the air the Pond View property, as well as other industrial areas citywide, for the purpose of economic development.
He also admitted photos were taken, and upon further study of those photos, he determined deviations were, in fact, occurring.
On May 2, 2011, DEM Director Janet Coit decided to approve the 1,500-ton application with a proviso Pond View representatives increase its production in increments, but there were other limitations imposed. They included the facility install an air-quality monitoring system that could be checked by the DEM.
According to Conley, Pimental then re-examined the photos and the Pond View's application, in addition to the original site plan and minutes of the initial Zoning Board meeting, held on Jan. 28, 1998.
“Simply put, he determined the facility now has a license to engage in land-use activities which significantly deviate from the original variance,” Conley noted. “On May 27, he issued that violation notice to Pond View, and it detailed all of the infractions shown in the approval of said application.”
The “cease-and-desist” order, should the board choose to back it, would decrease Pond View operations to the initial 150 tons of processing per day. (It should be noted that, in 2003, DEM permitted Pond View to increase grinding tonnage from 150 to 500 a day, though the city still deems the move illegal).
DiCenso attempted to show that Pimental had relied on facts to support the issuance of his notice; those facts included the original land use variance, consisting of the application for it, the site plan and the actual testimony delivered at the hearing.
Pimental stated he compared that information from 1998 with Pond View's application to move to 1,500 tons per day, and pointed out the significant changes in the operation.
“For example, the testimony before the Zoning Board in 1998 stated there would be only wood chip grinding with limited metal reclamation,” Conley offered. “Ed pointed to very specific testimony. At the time the applicant (former owner Ken Foley) testified, he said the business would not be processing any other substance or material but wood.
“When Ed compared that to the application for 1,500 tons, it stated wood is less than 50 percent of the materials the company produces,” he continued. “The application stated more than 50 percent (of processing) now consists of cement, street sweeping, cinder blocks and metallic items.”
Pimental also testified operations had expanded into areas well beyond the original site plan, including significant open storage of such materials, both before and after grinding. He explained to the board the use variance is defined by the record, the initial application and site plan and testimony.
Bristow, on the other hand, argued that only stipulations, or those conditions placed upon the use variance, should be admissible, not the entire record.
Near hearing's end, Zoning Board member John Braga revealed to Bristow he had read the initial transcripts as if he had been on the same board that issued the variance in 1998.
“I figured what I would have thought the stipulations would be if I was a member, and I will say I would have felt lied to,” he told Bristow. “It seems the board was being lied to at every turn.”
That statement drew applause from the audience.
“That flies in the face of everything we do here,” Braga added. “From the way I see it, the way it's shaking out, if I was on (that) board, I'd be upset. It's so far beyond the scope of what this company should be doing.”
Conley, who attended the entire hearing, believed there was a “huge fallacy” in Bristow's legal position.
“If the Zoning Board is lied to about what the operation is going to entail, then it's impossible for the board to determine what specific conditions should be imposed,” he said. “If you don't know what's going to happen on that site, how do you know what to control? That's why it's extremely important to examine the entire record, exactly as the zoning officer did. That's what a reviewing court will do if this matter is appealed to Superior Court.
“I know that because of my experience as an attorney; that's the law in Rhode Island,” he added. “My reaction to this hearing, as a resident of Rumford, is I'm proud to see the zoning officer stand up for the community surrounding Pond View, and I'm proud to see the Zoning Board of Review begin to conduct a full and fair hearing on these critical issues that have affected our city for so long.”
The continuance will see DiCenso question one more witness, an expert engineer, while Bristow will bring forth two, including an employee of the Providence & Worcester Railroad that hauls off debris and a Pond View employee familiar with the daily tonnage processed.