PROVIDENCE -- A request by Bucci Development for an injunction forbidding
the town of North Smithfield from revoking or
changing its approvals for the Dowling
Village project was
dismissed in Superior Court yesterday.
Judge
Stephen J. Fortunato ruled that the request for
injunctive relief, filed by Bucci’s attorney
Michael Kelly, was premature.
"I’m constrained to say that Bucci
and other people interested in the project simply must wait until the hearing
on the final application," Fortunato said.
Kelly had argued that without a directive from the court, the project may not
receive a fair hearing from the town Planning Board, which is set to consider
preliminary plan approval for Dowling
Village on April 6. He
cited an article in The Call outlining an amendment to the town’s proposed
comprehensive plan that would alter the recommended zoning for the project’s
site.
The Town Council voted 3-2 to amend the site’s recommended zoning from
"mixed use retail" to "mixed use office/commercial," with
proposed uses of "medical services, research and development activities,
office park and limited retail of up to 40 percent of the built
structures."
"We believe these changes in the comprehensive plan will be used to
defeat the project," Kelly told the court on Thursday. The company was
seeking, he said, "an injunction from the court indicating that the
change in the plan is not applicable to the project and cannot be used in
their (the Planning Board’s) deliberations."
The motion was denied on the basis that the town has made no attempt to
actually stop progress on the development. The judge told Bucci’s
attorneys that they could return to plead their case when and if the town
does act to adversely affect the project.
Fortunato denied the motion without hearing
dissenting arguments from either Assistant Town Solicitor Richard Nadeau,
representing North Smithfield, or Patrick
Dougherty, representing the Valley Alliance for Smart Growth.
The only occasion for Nadeau to speak at the hearing came when he objected to
the Bucci attorney’s comments about Town Councilor
Paul Zwolenski. Kelly cited Zwolenski’s
support for the comprehensive plan amendment affecting the Dowling Village
site. He stated that the developer fears Zwolenski
is maneuvering behind the scenes to sway the
Planning Board’s review of the preliminary plan.
"I object to his characterization of Mr. Zwolenski,"
Nadeau said. He called the comments an attempt at "character
assassination."
Asked after the hearing if the dismissal judgment was what the town was
looking for, Nadeau said, "Absolutely."
No injunction is necessary for the town to follow its own procedures for
planning and zoning decisions, he said.
"The town fully intends to go forward in a lawful manner."
Dougherty said the Valley Alliance agreed that the developer’s request for
relief was premature.
"We saw this as an attempt to do a preemptive
strike, so to speak," he said.
After the hearing Kelly said he understood the judge’s decision, and that the
process did produce a positive note for his client, because it further
affirmed the project’s master plan approval.
"I was pleased that the town and the plaintiffs acknowledged in their
briefs that we are vested," he said.
The overarching lawsuit, in which the Valley Alliance is challenging the
permits granted to Dowling
Village, will continue.
Dougherty said he will soon file a motion for judgement on the assertion that
the project’s planning and zoning approvals are invalid because they were
granted in violation of the town’s zoning ordinances.
According to the suit, the town erred when it granted approval to the
approximately 130-acre project based on Bucci’s
attainment of a special-use permit. A special-use permit isn’t intended to
allow uses which the zoning ordinance specifically prohibits, Dougherty said.
"For instance the retail is not allowed -- it’s specifically prohibited
in a number of the zones that make up the property without a variance or a
zone change."
The project’s master plan calls for the construction of about 600,000 square
feet of retail space on land located off Eddie Dowling Highway near Landmark Medical Center.
Kelly said he is currently working on a motion to dismiss the Valley Alliance
complaint. If the Planning Board were to rule against the project, Bucci
Development would "suffer irreparable harm," he stated. A reversal
by the town at this point could cause the company to lose potential tenants
or jeopardize its purchase of some parcels of the site.
Thus far the company has spent more than $1,000,000 in engineering fees,
legal fees and land acquisition costs while relying on the town’s approvals
for the development, Kelly said.
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