Construction of a business park in Cedarville will continue after a petition to stop the project was denied Monday night by the Plymouth Zoning Board of Appeals.
Following two hours of impassioned pleas from a standing-room-only crowd at Town Hall seeking to stop the development at 71 Hedges Pond Road, the ZBA voted 3-to-1 against rescinding its permits. The board also declined to issue a cease-and-desist order to stop work at the site.
“I’m not surprised,” Brian Weeden, chairman of the Mashpee Wampanoag Tribe, said after the meeting. “It shows that we need more education on the history and the laws, so people can understand and make better decisions.”
At issue is Standish Investment Group’s plan to develop a four-building complex on 34 acres off Hedges Pond Road that will include a 176,000-square-foot warehouse with multiple loading docks, a 75,000-square-foot recreational facility with two hockey rinks, and two 20,000-square-foot buildings suitable for wholesale operations. Those two structures are noted as a lumber yard on the developer’s documents.
The plan includes removing 270,000 cubic yards of sand and gravel to create a level tract for the business park. The site has already been largely clear-cut since the building permit was issued in January, with just a buffer of trees still standing along most of the parcel’s borders, as site work was allowed to continue pending the appeal.
The 71 Hedges Pond Road land was part of a larger tract owned by the town for decades and managed by the Conservation Commission for open space. In the fall of 2018, Town Meeting voted unanimously to re-zone a portion of the land to create the Cedarville Village Enterprise District, which allows for light industrial and commercial uses to help increase the town’s commercial tax base and create jobs. The balance of the property, about 130 acres, remains conservation land.
At several public meetings over the past nine months, residents – including abutters to the property and members of the Herring Pond and Mashpee Wampanoag tribes have spoken against the development. They say the earth removal and clear-cutting will harm the environment and wildlife and threaten the region’s water supply. Many also called for an archeological study before any development because the area is part of “The Great Lot,” ancestral lands of the Herring Pond Wampanoag Tribe.
“Watching the land at Hedges Pond (Road) being clear-cut, without even the minimal of archeological studies required to ensure its integrity is an injustice of the highest order,” Melissa Ferretti, chairwoman of the Herring Pond Wampanoag Tribe, told the ZBA. “Those lands hold more than just soil and stone. They hold the stories of our ancestors. Without proper studies, we may never know what will be lost there.”
Michael Leary, ZBA vice-chair, ran the meeting Monday in the absence of chair Michael Main, who had recused himself because he is a defendant in a lawsuit brought by Meg Sheehan, the environmental activist and attorney representing the group that appealed the business park’s permits.
Two other board members, Kevin O’Reilly and Thomas Wallace, were not present Monday. They recused themselves from the case, according to an email from Amy Kwesell, the town’s lawyer. That left just four members to vote on the issue.
Kwesell’s email did not indicate why they recused themselves, but O’Reilly presumably would not vote on an appeal because he is a director of the Plymouth Foundation, the nonprofit economic development organization that once owned 71 Hedges Pond Road and now holds a mortgage on the property after selling the land to Standish Investment Group. Wallace is a past director of the foundation.
Before opening Monday night’s meeting for public comment, Leary gave a brief summary of the project’s path through various town reviews and permitting processes, including Town Meeting’s support in 2018 and the Planning Board’s review and recommendation to approve. Then Leary set the expectations for the potential to overturn the project’s permits.
“It will be an uphill battle,” he told the audience. “This was a project created by the town for a public purpose. It was issued a legal permit. Now, the petitioners have to prove there was a legal or substantial mistake made in that process for us to rescind that permit.”
During the public comment period, Sheehan was first to speak, alleging multiple violations of the town’s zoning bylaw as well as state regulations. She said the bylaw requires projects to limit damage to a site’s landscape and topography. The Planning Board and the town building commissioner were wrong not to require a special permit for the earth removal proposed, Sheehan said.
Because of the Wampanoag history in the area, the project requires an archeological study under state law, she said. And Sheehan also claimed the developer does not have a legal title to the property, because the town didn’t follow the law in 2018 when it removed the land from a conservation use to make it available for development.
After Sheehan, 23 people spoke against the project, eliciting applause and animated heckling at times, prompting Leary to admonish the crowd at one point saying, “this is a hearing, not a protest.”
Michael Crossen, attorney for the developer, was then called to speak. He rebutted each point of Sheehan’s argument and noted that Standish Investment Group has all the required permits needed to proceed.
“The petitioner has done nothing to demonstrate that the Planning Board’s findings are wrong,” he said.
After public comment, the board asked the town’s lawyer for any additional advice before deliberating on the appeal.
“There were very excellent points that were brought up tonight, however you are a board of limited jurisdiction,” Kwesell said. “You have jurisdiction over the zoning bylaw. So, there are quite few points, that while they could be valid, they are not within your purview.”
Specifically, Kwesell said, the ZBA could not consider the request for an archeological study as a basis to rescind the permits. Nor could it act on the allegations that the project, as currently designed, does not meet the state’s building code requirements for obtaining a building permit. Those are state matters, that are beyond the ZBA’s authority, she said.
Board Member David Peck then made a motion to revoke the permits for the project. Heeding Kwesell’s advice, he focused his argument on the zoning bylaw, reading aloud from the bylaw’s definition of the Cedarville Village Enterprise District, saying it “is intended to provide land for a limited mix of office, light industrial, and commercial uses appropriate for development near residential neighborhoods. The special permit provides for review and decision on a case-by-case basis of certain development proposals.”
Then, speaking for himself, Peck added, “I see that a special permit should have been required on this project, just by the bylaw definition.” He also said the potential disruption of the earth removal – including vibrations, dust, and years of truck traffic -should have prompted the town to require another special permit.
But his colleagues were not convinced. Board member Edward Conroy said to revoke the permits, the board would have to find the building commissioner’s decision “was not rational, and that there was no basis for making these decisions. It’s a very high burden to meet. Looking at this fact pattern, I don’t think this petitioner has met that burden.”
Leary and board member Peter Conner agreed, and Peck’s motion failed 3 to 1. Peck also moved, at Sheehan’s request, for the ZBA to wave the $2,000 in town fees required to file the appeals. That motion also failed by a 3-to-1 vote, with Peck as the lone supporter.
The ZBA’s decision is the final step in the town’s review process. The only option left for the project’s opponents would be to file suit in state court.
“They did not base their decision on the zoning bylaw. Mr. Peck is correct that a special permit is required,” Sheehan said. “Whether we will appeal is unclear. I’ll have to talk to my clients and see what they would like to do.”
Michael Cohen can be reached at michael@plymouthindependent.org.