Judge denies towns’ bid to halt construction of DEM’s Browning Mill Pond facility

Judge denies towns’ bid to halt construction of DEM’s Browning Mill Pond facility



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PROVIDENCE — In a strongly worded opinion, a Rhode Island Superior Court justice has denied petitions by the towns of Richmond and Exeter for an injunction to prevent construction of the state’s proposed Natural Resources Center on the shore of Browning Mill Pond.

Justice Richard Licht issued his 19-page decision Friday afternoon. He concluded that the towns had not convinced the court that state facilities should be subject to local planning or zoning proceedings. The towns’ argument, he said, was “repugnant to the notion of sovereignty,” adding that he could not believe that such a process was intended by the legislature or the state Supreme Court.

Richmond Town Council President Paul Michaud, who learned of the decision when he was contacted by The Sun, said he intended to confer with Exeter officials on what to do next.

“We’ll see,” he said. “We’ll have to talk to Exeter and find out what we can do. Since we started this together, we might as well finish it together. There may be another avenue. I’ll have to check with Karen Ellsworth.”

Ellsworth, the Richmond town solicitor, did not return calls requesting comment.

Ellsworth and Exeter attorney James Marusak appeared in Superior Court on Nov. 20 to request an injunction, either preliminary or permanent, to stop the state Department of Environmental Management 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, 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. 

In their petitions, the towns argued that the state had failed to notify them of its intention to build the center. Further, they asserted that the state should be subject to the provisions of their respective comprehensive plans, which would prohibit the construction of such a large facility.

The state countered that both towns’ comprehensive plans had expired and were therefore currently invalid under the Comprehensive Planning and Land Use Regulation Act, which, it asserted, 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.)

Justice Licht sided with the state, agreeing that it should not be subject to municipal regulations.

‘Repugnant’

“Essentially, the towns have asked this court to create and mandate that the sovereign apply like any other landowner in the municipality, wait its turn to be scheduled and then appear at a hearing to have a local zoning or planning board in the first instance establish the record, which will then allow the Superior Court to balance the interests of the state and the municipality,” the judge wrote. “This court finds no precedent in this state which imposes that obligation on the state, and in some ways finds such a process repugnant to the notion of sovereignty, even if the General Assembly yielded some of that sovereignty to the municipalities when it empowered them to pass land use ordinances.

“If the court adopted the view of the Plaintiffs, every new or expanded state facility, such as an airport, landfill, prison, or college dormitory, would in the first instance be debated at a local zoning or planning board meeting. This court cannot believe that such a process was ever intended by the General Assembly or the Supreme Court.”

Michaud said he was disappointed in the decision. “We got the decision, but certainly not the one we were looking for,” he said.

The proposed project was not funded in the current state budget.

cdrummond@thewesterlysun.com

 


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