I’m disappointed in the outcome, particularly given the Planning Board’s favorable staff report on my project and our view that we met all elements of the special use permit standard. I’m currently weighing my options, including appeal of the decision or a modified development. I’ve spent over 20 years remediating the property so that I could put it back into productive use. I do intend to use it.”

Art Palmer, AP Enterprise

PORTSMOUTH — Art Palmer’s dream of building a sand volleyball complex atop the old town dump in Island Park has been put on hold for now.

The Zoning Board of Review voted 3-1 on Oct. 5 to deny AP Enterprise’s application for a special-use permit to create an outdoor recreational facility featuring 13 sand volleyball courts and parking for about 100 vehicles. Palmer, the owner, called it Island Park OASIS Beach Volleyball.

The vote was the culmination of a contentious hearing that spanned three nights (July 20, Sept. 7, and Oct. 5) with dozens of residents and other interested citizens speaking both for and against the plan. The majority of the dissenters, however, were direct abutters who raised concerns over noise, lighting, parking, traffic and more.

Some residents also said they opposed the project due to health reasons since the former dump site is still in the process of being capped under the jurisdiction of the R.I. Department of Environmental Management (DEM). (Palmer needs to address any outstanding issues by Nov. 17.) Such matters were not within the purview of the zoning board, however, so Chairman James Nott disallowed most of that testimony.

Reached for comment, Palmer said he doesn’t intend to give up on his plans to develop the property.

“I’m disappointed in the outcome, particularly given the Planning Board’s favorable staff report on my project and our view that we met all elements of the special use permit standard,” Palmer said in an e-mail. “I’m currently weighing my options, including appeal of the decision or a modified development. I’ve spent over 20 years remediating the property so that I could put it back into productive use. I do intend to use it.”

The area in question is a privately owned 18-acre site — 14 acres were leased for use as a landfill between 1954 and 1974 by the Town of Portsmouth — that juts out to the north of Park Avenue on the west side of the Island Park neighborhood. The majority of the property that was proposed for development, a little over 7 acres, is zoned commercial with the remainder zoned residential R-10.

Conditions set

After 13 more people took to the podium last Thursday to speak on the matter — eight opposed, five in favor — the public hearing was finally closed and the board got down to voting. First, board member Ben Furriel suggested several conditions on the application should it be approved, all of which were approved unanimously:

• Garbage cans must be provided, preferably next to toilet facilities.

• There be a maximum of 100 parking spaces and no parking allowed on the grass.

• Construction and delivery hours would be limited from 9 a.m. to 6 p.m., Monday to Saturday.

• The special-use permit would cover volleyball only. If the applicant desires to have sand aerobics or yoga, etc., he would have to come back to the zoning board for a modification review.

• No amplification of audio or music would be permitted on the site.

Another condition, suggested by board member Charles Donovan, required that operating hours begin no earlier than 8:30 a.m., rather than 7 a.m. as requested by the developer. That condition was also approved.

It didn’t matter, however, as Furriel was the only board member to vote in favor of the petition. 

“I am absolutely certain that a capped, secured, DEM-inspected and monitored site … is better than what we’ve had for decades, which is an open, unregulated, uncontrolled pit,” said Furriel, adding he believed the proposal was compatible to neighboring land uses and would not create a nuisance or hazard to surrounding properties. 

He noted that the nearest homes are at least 150 away from the proposed sand courts, and there would be a continual flow of traffic in and out — most of it turning right onto Park Avenue, as opposed to toward the busy section of Island park. “Games are going to start and stop when they need to start and stop,” said Furriel. 

As for noise, some neighbors testified that when the wind blows, Island Park residents can hear the football games and marching band from Portsmouth High School. “I don’t consider that noise pollution,” Furriel said.

Traffic, noise concerns

The other board members, however, said there were too many unknowns about the project to grant approval.

Nott said one of his biggest problems was with the plan’s traffic study — or lack thereof. “Other than a trip generation report, no traffic study was presented to the board,” said Nott.

A traffic expert for the applicant, Todd Brayton, had earlier testified that such a study was unnecessary since the highest number of trip generations would be 80 during peak hours on a Saturday. Board members and residents, however, pointed out that Brayton conducted his study on a Wednesday in late June, rather than during a busier time of the year.

The trip generation report tied in with another one of Nott’s concerns: How many people would actually be at the site at one time, especially during tournaments? “How can you generate a trip report if you don’t know how many people there are?” he asked.

Nott, who said he played volleyball for 30 years before sustaining an injury several years ago, expressed skepticism about the petitioner’s claim that there wouldn’t be much more than 100 people on site at any one time. During a true volleyball tournament, Nott said, there would be two referees per court, and that would immediately require another 26 people on the site. Linesmen and spectators would add to the number, and there’s no reason why the renters of the space couldn’t play six on six, rather than four on four, he added.

On the question of whether the site could pose a nuisance to the surrounding property owners, Nott said the land could already be considered a hazard since the perimeter fence needs repair, and there was no landscaping plan presented to slow the spread of dust and dirt blowing onto abutting properties. Nott also opined that the “yelling and cheering” from the courts could disturb neighbors.

In voting to deny, board member Sue Horwitz said, “I’ve never seen this kind of community objection to an application.”

Donovan, another “no” vote, said he didn’t think the complex would pose major problems with traffic and noise, but that “the negatives outweigh the positives.”

After the vote to deny the application, Nott thanked the residents who testified for their commendable behavior during deliberations on such a contentious issue. (Not everyone was so polite, of course. Earlier in the evening, Nott threatened to throw an abutter out of the meeting for repeatedly interrupting the testimony of a man in favor of the plan.)

Nott then had a message for the crowd.

“To the people of Island Park: Make no mistake, something will go in there someday,” he said.

The applicant could appeal the decision to Superior Court, or come back to the zoning board with a modified proposal, he said.