Sand & gravel mining on the Wood Lot

Kingstown will conduct a commercial mining operation on land zoned Rural Residential, with 80 round trip truck trips a day, using the same truck route as proposed in the 2014 permit that the Town denied. Citations here are to the Court Transcript from the 2017 trial over the second permit. 4/19/17 Tr. 90:18–25. The total acres impacted will be almost the same – 10 acres. Mr. Shaw, Cushing/Kingstown’s witness testified that almost 10 acres – 9.81 acres will be developed as part of the initial phase one mining operation:  4.81 acres will be cleared and mined for sand and gravel, and additional 3 acres will be cleared by Kingstown for an access road, and 2 acres will be permanently devoted to a “drainage basin” for runoff from the gravel pit. 4/19/17 Tr. 142: 9–21, 143:1–8, 170:21–22; 4/20/17 Tr. 145:1-3, 140:12-14.

The ZBA’s finding in the 2015 permit that the “area of excavation” is reduced from 10 acres to 4.81 acres relies on a misreading of the Bylaw and ignores material facts about the actual acreage impacted. Ex. 2 at 3. The Bylaw clearly required the ZBA to take into consideration the “area of site disturbance” not just the “area of excavation.” Ex. 22, Bylaw § 205-18(G)(9). To reduce the volume to 201,000 cubic yards, Kingstown merely “lifted the bottom of the pit from elevation 112 to elevation 116 and were able to make a calculation that says that will be 201,000 yards” but the operation will still impact almost 10 acres. 4/19/17 Tr. 138:15-21.

Moreover, moving the area of excavation 200 feet south increases the negative impacts of the project by bringing the industrial equipment operation closer to the residential neighborhood. The 2014 and 2015 Decisions both found the “closest residential abutter is approximately 1,500 feet from the site,” Ex. 33 at 3 and Ex. 2 at 2. Mr. Shaw testified Kingstown’s excavation operations will be done “435 feet from the pit face to the corner of the Silva property.” 4/20/17 Tr. 142:24–143:1. Contrary to the ZBA Decision, Mr. Shaw testified Plaintiff Silva and Cook abutters’ homes are 850 and 1450 feet, respectively, from the drainage area of the project, and that Silva’s home is 1100 feet from the excavation area. 4/19/17 Tr. 151:2–18. Thus, this revision means the project has a more severe impact on the surrounding neighborhood.[1]

Finally, the 2015 Decision does not address the lack of evidence of an allowed or approved “end use,” which was a major reason for the 2014 denial. In 2014, the three ZBA members voting to deny cited lack of an “end use,” Ex. 33 at 4,[2] and the two members voting in favor did so “with a condition of procuring an end-use agreement and right-of-way or easement agreements to document and confirm access to the site.” Id.[3] The members cited concerns about lack of “documentation” of an end use, and whether the mining activity had a “reasonable relationship to the construction of a solar facility,” and one member indicated he “regarded [the project] as a mining operation,” and another cited lack of a “firm commitment” to a solar facility. Id. at 4-5. Nothing in the 2015 ZBA Decision acknowledges or addresses these 2014 reasons for denial. See, Part IV below for discussion of the Bylaw’s requirements for end use

[1] In addition to acreage and volume revisions, the meager increase in the “donation” to the Town for damage to roadways, and the modification to hours of operation are not specific and material and are in no way related to the reasons cited by the ZBA for its 2014 decision to deny the permit. Ex. 2 at 2, ¶ 3. Kingstown presented no evidence to show that an increase in its donation had any relation to the damage to Town roads and pretends that a limitation on the hours of operation from 7:00AM to 4:00PM weekdays is a project change, when the Bylaw already restricts the hours of operation to this timeframe. Ex. 22, Bylaw §205-18(G)(3).

[2] Mr. Conroy, Chair: “Mr. Conroy acknowledged that the Petitioner stated that the proposed use is for a solar field to be utilized by Blue Wave Capital but offered no documentation to the same. To that affect, he recapped a Plymouth County Commissioners testimony that Blue Wave Capital had not submitted any documentation to be the user at the site. . . . He believed the Petitioner failed to demonstrate that the amount of sand and gravel to be removed was “incidental to and required.” The removal of 250,000 is a major undertaking and the project cannot be said to be minor relative to construction of a solar field. The net effect of the volume of earth removed and the scope of the removal project are inconsistent with the use of a solar field . . . . [T]his mining activity does not have a reasonable relationship to the construction of a solar facility.” Ex. 33 at 4. Mr. Keohan: “He believed the end use was not clearly defined and [he] regarded this project as a mining operation.” Id. at 4. Mr. Main: “He did believe that ultimately the end use would have been a solar field; however, he expressed concern that there was no firm commitment, and Blue Wave did not respond to the RFP…he did not believe that sufficient documentation was presented to support this request.” Id. at 4.

[3] Mr. Peck (Voting yes) “was inclined to support with a condition of procuring an end-use agreement.” Ex. 33 at 4. Mr. Conner (voting yes): “he agreed with having a condition for an end-use agreement and a right-of-way condition prior to excavation.” Id. at 5.