Nearly 15 months have passed since Edgewood Development first unveiled its plans to construct an asphalt plant on a 5.3-acre site off King’s Highway in northeastern Rochester – but the fate of the project remains up in the air.
Edgewood Development first proposed its bituminous concrete plant in the town’s industrial section in November 2010 – but its proximity to two residences and concerns from area businesses about its impact resulted in six months of Planning Board hearings. The meetings had delved into all aspects of the plant’s potential impact – from lighting, sound, air emissions to traffic – through expert testimony from both the applicants and opposing group.
The Planning Board approved the plant’s construction last May, but the following month, petitioners led by legal representative Benjamin Tymann of Mintz Levin appealed the ruling to the Plymouth Land Court. The group – including two nearby residents and Todesca Realty Trust – argued that the Planning Board overstepped its boundaries by approving the plant, namely because of a bylaw that states “no such use is permitted which would be detrimental of offensive or tend to reduce property values in the same of adjoining district.”
With the Planning Board in litigation, the Building Commissioner denied Edgewood the permit needed to move forward – pushing the case to the Zoning Board of Appeals in November 2011. To digest the months of hearings, they requested time to review the case.
Fast forward to February 9, 2012. After two months of reviewing the case, the ZBA formally upheld the Planning Board’s decision to approve the plant.
ZBA member Benjamin Gilmore argued the plant would co-exist with its industrial neighbors including SEMASS, Rochester Bituminous, a transfer station, and an electric substation, and that the project is suitable for the area.
“Looking at the mixed use, does the addition of a bituminous plant negatively impact the value of the adjacent industries? No,” Mr. Gilmore said.
Board member Kirby Gilmore agreed.
“I own 50 acres of property away from [SEMASS] in South Middleboro…When I spend evenings outside, the noise is unbelievable, I can hear it a mile away. I hear no other noise from that location,” he said, saying that an additional plant would not materially change the nature of the area as industrial.
“The precedent set by the existing industry puts it well within [the Planning Board’s] purview,” echoed Davis Sullivan.
ZBA Chairman Richard Cutler said given the “massive” amount of hearings and testimonies the Planning Board considered, he felt the board did its due diligence. “I don’t think it went beyond its charter,” he said.
With little to no comment from both the petitioner’s legal representative Benjamin Tymann and Edgewood Development’s Gerry LoRusso and Tim Higgins – all present at the meeting – the board swiftly voted to uphold the Planning Board’s May 24, 2011 decision.
With the ZBA now firmly behind the Planning Board, it is unclear if the petitioners will continue to battle out the proposal asphalt plant in court.
“All I can say at this point is that we are reviewing our options,” said Atty. Benjamin Tymann following the ruling.
Michael D’Acci of 119 King’s Highway, a direct abutter of the proposed plant who in among the petitioners, said he wasn’t surprised by the ruling.
“It’s the same old, same old. No surprises. I figured they’d all stick together,” he said in response to the decision.
Rochester Town Counsel Blair Bailey said the ZBA’s decision is by no means a shoo-in that the plant will get built soon.
Although he said it is unlikely, if it goes to Superior or Land Court, “it could go on for years,” Atty. Bailey said following the ruling. More likely, “it could take a year.”
For now, Atty. Bailey said if it happens, the court battle is between the petitioners and Edgewood, although he will be on hand to “support the decisions of the board.”
The petitioners have 20 days to appeal the ZBA’s decision.
By Laura Fedak Pedulli