Members say variance request has no grounds and is harmful to port communities

PROVIDENCE — The Zoning Board of Review unanimously denied a variance request Oct. 13 from a pavement manufacturing company that sought to continue the use of a leased portside Allens Avenue site for the storage and processing of concrete, stone, aggregate, and asphalt.

The Narragansett Improvement Co. applied for a variance permit last August to continue the non-waterfront dependent use of the 338 Allens Ave. property, which has been ongoing for the past three years despite lying within a maritime industrial waterfront district. The variance permit was opposed by more than 50 community members.

“This application doesn’t meet any of the standards, as far as I’m concerned, for a use variance,” board member Marcus Mitchell said. “It doesn’t comply with the ordinances or the comprehensive plan.”

Board members — some of whom said the application might meet some but not all of the mandatory criteria for a variance permit — noted the three years of unsanctioned use of the Cumberland Farms-owned site, the lack of zoning approval previously sought by the Narragansett Improvement Co., and the impact of asphalt processing on the health of nearby neighborhoods.

Twenty community members spoke at the recent hearing in opposition to the variance. More than 40 written comments were also submitted.

Dissent was offered by the Conservation Law Foundation, the Sierra Club of Rhode Island, and employees of the Chafee Health Center, a Providence Community Health Center (PCHC) 250 feet from the Allens Avenue site.

The Chafee Health Center is the “medical home” of 8,000 patients, many of whom access the clinic from a bus stop in front of the Narragansett Improvement Co. And, according to Andrew Saal, family physician and chief medical officer of PCHC, the clinic is at the front lines of some of the highest asthma rates in the country.

He said more than 400 patients at Chafee Health Center are diagnosed with asthma. In the past year, while PCHC clinics on the East Side and Olneyville saw eight and 20 children admitted for asthma, respectively, he said clinics serving South Providence and Washington Park saw childhood asthma admittances hit 39.

Recent updates to clinic air-filter systems — meant to decrease the risk of COVID-19 transmission — have meanwhile “increase[d] the staff complaints about industrial odors,” Saal said.

“When they grind, I hear the complaints,” he said. “The smell, the odors, the burning eyes.”

Michael Resnick, a Providence-based attorney representing the Narragansett Improvement Co., said the company was aware of “a negative recommendation here” — before launching into a litany of arguments for the variance permit.

Resnick, along with Narragansett Improvement Co. president Dustin Everson, argued that marine concrete comprising of 40-50 percent of on-site material linked it to waterfront-dependent use, that pavement processing was “an operation that’s based in recycling” and prevents asphalt and concrete from being landfilled, and that the variance would allow for a “wind down” of business on the site.

The zoning board dismissed all arguments, noting they failed to meet the criteria for a variance permit.

Further, Resnick said the Narragansett Improvement Co. sought only a temporary variance permit, as the property is set to be sold by Cumberland Farms Inc. within the year — though no evidence of the sale was provided to the board.

When told by the board that variance permits were not issued on a temporary basis, Resnick said, “I don’t want to be told that it doesn’t exist because, in fact, the only people that get to say that is the Rhode Island Supreme Court, and they’ve never stated anything on the subject.”

“That’s correct, Mr. Resnick, and this is not the Rhode Island Supreme Court, and they strictly interpret the statute and the ordinance in accordance with its plain language,” senior assistant city solicitor Lisa Dinerman said. “So, if you want to go make law in the Supreme Court, that’s fine. But this board does not make new law … it can only apply the law as written.”

Resnick added a variance permit was granted to Cumberland Farms in 2014 for the on-site, non-waterfront dependent storage of liquified natural gas. But, according to the board, the specified usage differed and no building permit was ever issued, rendering the variance null and void. Additionally, amendments were made to the City Zoning Ordinance in December 2014, shortly after the permit was issued.

“Let’s not go down a rabbit hole,” Dinerman said, indicating no precedent was set by the previous permit.

According to Robert Azar, deputy director of the Department of Planning and Development (DPD), said the city’s land-use plan and zoning codes prioritize the water-dependent nature of the port area to best capitalize on the deepwater channel. The Allens Avenue site, he said, was historically home to a dock extending into the Providence River, which suggests the site’s continued potential for waterfront use as zoned.

In a statement to the zoning board, the DPD recommended the variance request be denied.

“A hardship or lack of beneficial use is not apparent given the number of maritime uses that can be conducted on the site,” according to the DPD statement. “Based on plans provided, the proposed use does not conform to the zoning ordinance and comprehensive plan as it is not water dependent. As a hardship isn’t evident, the DPD sees no reason to grant the requested relief.”

Opposition to the variance was also logged by City Council members John Goncalves and Pedro Espinal, Sen. Samuel Bell, D-Providence, Sen. Tiara Mack, D-Providence, and Rep. David Morales, D-Providence.