Judge hears arguments on Browning Mill Pond injunctions

Judge hears arguments on Browning Mill Pond injunctions

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RICHMOND — The towns of Richmond and Exeter are awaiting a decision from Rhode Island Superior Court on their petitions for injunctive relief to halt construction of the state’s proposed Natural Resources and Visitors Center on the shore of Browning Mill Pond. Attorneys representing the two towns and the Rhode Island Department of Environmental Management appeared before Justice Richard Licht on Nov. 20.

“He heard more than two hours of arguments,” Richmond Town Solicitor Karen Ellsworth said. “He had a lot of questions.”

Ellsworth and Exeter attorney James Marusak are requesting an injunction, either preliminary or permanent, to stop the DEM from building a 13,000-square-foot natural resources and visitors center. The facility, which would straddle the border between the two towns, would provide office space for DEM fish and wildlife and forestry administrators who are currently working out of several buildings. Between 14 and 20 full-time staff members, and several seasonal employees would work in the new building.

In addition to offices, the facility would house a laboratory, a natural history display area and a visitor center with restrooms and conference space. The budget for the project will be up to $7 million.

Ground-breaking was expected to begin in the spring but was delayed when Exeter filed a cease-and-desist order. Both Exeter and Richmond then filed petitions for injunctive relief in an attempt to stop the center’s construction.

Rhode Island Attorney General Peter Kilmartin, Rhode Island Department of Administration Director Michael DeBiase and DEM Director Janet Coit have been named as respondents in the towns’ petitions, which argue that the state should be subject to municipal zoning regulations, which would prohibit the construction of the large facility.

The state has countered that both towns’ comprehensive plans have expired and are therefore currently invalid under the Comprehensive Planning and Land Use Regulation Act, or CPLURA, which, it asserts, supersedes local zoning regulations. (Richmond’s comprehensive plan expired in June, 2017, and Exeter’s plan expired in 2009. Both towns are updating their plans, which must be submitted to the state for approval.)

However, Ellsworth argued that when the state began planning the center, Richmond’s comprehensive plan was still current.

“...In late 2013 or early 2014, when the Department of Environmental Management started planning for the construction of the Natural Resources and Visitors Center, Richmond did have a fully-approved comprehensive plan in effect, as the State itself admits. (Exhibit 1),” her memorandum reads. “Had DEM officials looked at that comprehensive plan to determine whether their proposed facility would be consistent with it, they would have found that the site where they want to build their new facility is designated as unsuitable for most development.”

The state’s memorandum also notes that a special state body, not town zoning boards, is responsible for resolving these types of conflicts.

“Even if, arguendo, the Towns were in compliance with CPLURA, the statutory remedy would not require the State to undergo the Towns’ process of local hearings,” the state’s memorandum reads. “The statute mandates that any conflict between the State’s building needs and local zoning be submitted to the State Planning Council for resolution.”

“It’s an argument that the judge is taking seriously,” Ellsworth said.

The judge considered an additional argument put forth by the state that Exeter does not even have standing in the case, because the building itself will be in Richmond.

“He also questioned whether Exeter has standing in this case because only the septic is in Exeter,” Ellsworth said.

The state’s memorandum concludes that building the center would simply continue the current uses of the property.

“The site within Arcadia that will house the NRVC [Natural Resource and Visitors Center] is land that has historically been used and maintained for recreational purposes,” it reads. “It included a permit office, restrooms, a freshwater beach, picnicking, and a parking lot. The area continues to be used and maintained for recreational purposes, which DEM continues to support by maintaining the parking lot and hiking trails. DEM is seeking to continue the status quo by allowing the area to continue to provide recreational experiences and opportunities.”

Ellsworth’s memorandum notes that a facility the size of the proposed DEM center would be clearly incompatible with Richmond’s existing, though currently expired, comprehensive plan.

“The proposed Arcadia Natural Resources and Visitors Center is a 12,716-square-foot building with 19 offices and 15 workstations for DEM Forestry and Fish & Wildlife employees, a laboratory, a reception area, a conference/education center, an exhibit space, restrooms, storage areas, and 3,415 square feet of outdoor terraces at four locations on three levels,” the memorandum reads. “DEM wants to place this building in the most scenic portion of the Arcadia Road scenic area, blocking the view of Browning Mill Pond from Arcadia Road. Only someone adept at cognitive dissonance could conclude that this building would be compatible with Richmond’s comprehensive plan.”

Licht is expected to render his decision on granting the injunction by mid-December.

“It’s difficult to tell from his questions what he’s going to do,” Ellsworth said.

Richmond Town Council President Paul Michaud did not respond to requests for comment.




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