The construction of a new bituminous concrete facility in northeastern Rochester has been delayed indefinitely due to a protracted legal battle.
The project was proposed for construction on a 5-acre site off King’s Highway within Rochester’s industrially zoned section of town – and would process 2,200 tons of bituminous concrete per day. Its controversy in part stems from its proximity to two residences.
On March 5, Benjamin Tymann of law firm Mintz Levin – who is representing residential and commercial abutters opposed to the plant – filed a 39-page appeal to Massachusetts Land Court contesting the Zoning Board of Appeal’s February 9 approval of Edgewood Development’s proposed facility.
The ZBA’s decision had upheld the Planning Board’s May 24, 2011 affirmative decision on the plant, which was later appealed by Mintz Levin. The group filing the latest appeal includes Todesca Realty Trust (owner of Rochester Bituminous), Willard Realty Trust and residents Carol and Michael D’Acci,
Brandon and Krystle Empey, Emma Galvin, Jeffrey Mason, and Sean Somers.
“As demonstrated by a mountain of expert evidence on the issues of property valuation and noise, traffic, lighting and visual impacts – presented first to the Planning Board then at the Board of Appeals – the Edgewood plant will have dramatic and damaging effects on each of these four properties and their residents,” the appeal states.
According to Mintz Levin, the plant would be less than 25 yards from the Mason home (recently acquired by William Realty Trust) and 30 yards from longtime residents, the D’Accis.
“If the Edgewood plant is built, it will be a closer distance to its residential abutters than any other known asphalt plan in Massachusetts,” said the appeal.
The opponents also argue that construction of the plant would violate a town bylaw, which states that “no such use is permitted which would be detrimental or offensive or tend to reduce property values in the same of adjoining district.” According to Mintz Levin, construction of the plant would reduce nearby property values “by between 17 percent to 28 percent, or more.”
Timothy Higgins of Edgewood Development said he was not surprised by the appeal.
“This is the third [bituminous plant construction] that I’ve been involved in… It’s not crazy unusual,” he said.
Higgins said he is “confident” that courts will rule in Edgewood’s favor.
“We feel we will prevail, we feel the facts in our favor,” he said. “The fact is that there an existing [bituminous] facility with an identical use in the area governed by the same rules works in our favor.”
For now, it remains uncertain how long the legal wrangling will go on.
“It could be one year, or it could be three to four,” he said. “It’s very difficult to tell how long the court system will take.”
By Laura Fedak Pedulli