By GRETA SHUSTER
Beacon Media Staff Writer
After months of delay, the Zoning Board of Appeals voted unanimously Monday night to overturn a decision by Building Official Alfred DeCorte that the land uses and activities at 175 Post Rd. are permissible in a light industrial zoning district.
In a packed community room in the Sawtooth Building, legal argument and testimony proceeded for more than three hours. Homeowners and direct abutters Vanessa Carlton and John McCauley of the historic William Rhodes House brought the appeal to the board in July. The appeal was first scheduled to be heard in September but was postponed due to insufficient notice and scheduling issues.
Peter Skwirz, the attorney representing DeCorte, argued that the appeal was not timely, as the ordinance states that appellants had 30 days from the time they “knew or should have known” of the decision to file the appeal. Skwirz said that because he sent the appellants’ attorney, Nicholas Hemond, a statement containing DeCorte’s perspective on the land uses in January, the appellants knew or should have known the decision at that time.
Representing the appellants on Monday night was Hemond’s partner, Kelley Morris Salvatore. She argued that the informal letter from Skwirz was not an official decision from the building official, and that decision came directly from DeCorte in June. Therefore, having filed the appeal in July, it was still timely.
The board voted 3 to 1 to continue hearing the appeal and reject a timeliness objection. Julie Finn cast the vote in opposition.
The board continued to hear witness testimony from the appellants, a planning director from another municipality, a neighbor, a real estate broker with experience in Pawtuxet Village and DeCorte himself. 175 Post Rd. property owners Lee Beausoleil and Artak Avagyan did not speak, but their attorney, Hagop Jawharjian, participated in the questioning of witnesses.
Douglas McLean, a senior planner, said that while the activities at 175 Post Rd. do not match perfectly with any of the explicitly stated uses in the zoning ordinance, the closest matches are permitted only in the general industrial district.
McLean described the use as a “transfer station,” in which “large-scale industrial goods” are delivered, staged on site and later removed.
McCauley and Carlton, using a laptop computer and television brought from home, presented a series of photos and videos demonstrating the variety of activities occurring on the property over the last year and a half. Video footage showed that activities on the property were audible from inside their home. They said the crane-rigging operation and storage of vehicles and bulk materials does not fit the definition of a light industrial district.
McCauley showed videos taken as recently as Nov. 10.
Zoning Board Chair Paul DePetrillo said that in his capacity as Ward 1 committee chair, he has been called to visit the site on numerous occasions.
“Arriving there, and seeing 40-or more-foot flatbeds [trucks] … it was very clear to me that it was beyond the scope of the zoning,” said DePetrillo.
DeCorte’s testimony demonstrated that Warwick’s zoning ordinance is vague when defining permitted uses in each zone. Because no explicitly stated use exactly matches the activities occurring on the site, DeCorte was tasked with using his professional judgment to make an interpretation. However, during Salvatore’s cross-examination of DeCorte, it was revealed that DeCorte had not recently visited the site when he issued his determination in June.
DeCorte said he used his “recollection” when making the official decision. He also emphasized that the site’s specific uses change on a regular basis, and what observed one day might not be occurring the next.
“He testified that he doesn’t know what was going on the site at the time,” said Salvatore in her closing statement. “We don’t know if there was industrial activity on the site because he can’t tell you that there was when he issued the determination.”
Before a vote was taken, City Solicitor David Petrarca, acting as counsel for the board, read aloud the definitions of light industrial and general industrial at the request of Finn.
The zoning ordinance states that properties in the general industrial district may be “used for general industrial and manufacturing operations and enterprises, including assembly of durable goods, bulk storage, and general storage of trucks and construction equipment.”
Properties in the light industrial district may be “used for limited or light industrial purposes generally of a less intensive nature than those allowed in the general industrial district.”
Robert DeGregorio made the motion in favor of the appellant, overturning the Building Official’s decision. He said he “respectfully disagrees” with DeCorte’s professional determination. The vote was 4 to 0 in favor of the appellant.