There will be no lighting, no speakers, no amplified music. There will be no permanent structures, and no impervious surfaces that will generate additional runoff.”

Jennifer Cervenka, attorney for AP Enterprise

PORTSMOUTH — A controversial plan to build a sand volleyball complex on top of the former town landfill got its first public airing last week before the Zoning Board of Review.

AP Enterprise, LLC is seeking a special-use permit to create an outdoor recreational facility featuring multiple sand volleyball courts and parking for 100 spaces. Art Palmer, the owner, calls it Island Park OASIS Beach Volleyball.

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’s proposed for development, a little over 7 acres, is zoned commercial with the remainder zoned residential R-10, according to the plan.

Palmer, a former tennis pro at the Tennis Hall of Fame in Newport who formerly operated the Newport Volleyball Club, wants to develop the site’s southern portion closer to Park Avenue with 13 sand volleyball courts to be used during daylight hours from the late spring through the early fall. There would be “multiple secondary uses” for the complex, Palmer said, such as “beach soccer, beach tennis, and sand strength and conditioning.”

The capping of the site is nearly complete and under the jurisdiction of the R.I. Department of Environmental Management (RIDEM). Members of Portsmouth Concerned Citizens (PCC), which opposes the project, say they’re concerned that the “remediated contaminated site” has had a “considerable amount of high-arsenic soil added on top of the original town dump” under DEM’s authorization. The taxpayer group also said the complex would be disruptive to the surrounding neighborhoods.

The application was originally on the agenda for May 18, but representatives for the developer asked the zoning board to reschedule the hearing to June 15, and then again to July 20.

Continued to Sept. 7

There were no comments heard from residents at the standing room-only hearing Thursday night, as the meeting ended at 10 p.m. before AP Enterprise had finished presenting its petition. The hearing was continued to 7 p.m. on Thursday, Sept. 7, at Town Hall.

Zoning board chair James Nott, who called the petition one of the most “contentious” that had ever come before the board during his tenure, noted at the start of the evening there were residents both for and against the proposal in the audience, and he asked everyone to be “kind and considerate” in allowing presenters to speak without interruption. At the conclusion of the meeting, Nott commended members of the audience for being so respectful, and promised everyone will have an opportunity to speak after AP Enterprise is done presenting.

Thursday’s hearing got off to a rocky start, however, when AP Enterprise’s attorney, Jennifer Cervenka of Cervenka Green & Ducharme LLC of Providence, submitted a revised plan for the complex that showed a reconfiguration of the courts’ layout. The original plan showed 13 sand volleyball courts and a sand soccer court. The new one showed 13 volleyball courts — unless three of them were converted to one soccer court, which would mean just 10 volleyball courts.

Cervenka, an environmental and land use lawyer who chaired the R.I. Coastal Resources Management Council from 2017-2021, said the new plan actually amounted to a less-intensive use of the site, but she was unable to mollify the zoning board’s chairman.

“This is absurd,” Nott said, noting the new plans were submitted to the board just that afternoon and residents didn’t have a chance to review them. He also pointed out that AP Enterprise has already requested two delays on the hearing.

“This is totally disrespectful to this board. Right now I’m going by what we have — not what you’ve changed it to,” Nott said, adding the proposal appears to be one of the more “fluid” he’s ever reviewed.

Attendance debated

Zoning board members also questioned how many people would be at the site at any given time. Palmer said while the complex is mainly intended for “casual pickup games” for all skill levels, existing clubs would be able to rent the facility for league play and tournaments. 

Nott questioned how management would be able to regulate the number of people who are playing if they paid for a pass, since there could be eight or more players on a court. Cervenka said that would be allowed only during tournaments and that AP Enterprise would need to seek a special entertainment license. 

Nott countered that the owner would actually need an amendment to the special-use permit, if granted. In any event, Cervenka said the applicant would be open to any conditions imposed by the board regarding the number of players.

Palmer said two onsite staff members — a manager and an attendant — would monitor the number of players on the court. Although Palmer said the complex wouldn’t attract spectators, Nott and board member Furriel disagreed.

Furriel said he would be able to park on the site whether he purchased a pass or not. “My cooler could have alcohol in it, and your two employees aren’t going to be able to keep track. I’m concerned about the number of people who are going to be on this site, and whether the traffic analysis is sufficient,” he said, noting the application is already calling for 80 daily “trips,” and a formal traffic study is required if it reaches 100.

Other issues

Here are some other points that came up during Thursday’s hearing:

• Timothy O’Connor, a professional engineer overseeing the closure of the landfill, addressed concerns regarding arsenic levels on the site. RIDEM is closely monitoring the proposal and is receiving quarterly reports about the soil being brought in for the capping. Groundwater sampling is also being done at eight locations around the site, he said. “We have two feet of soil across entire site. What we still need to do is finish grading. We need to vegetate it as well,” O’Connor said, adding that AP Enterprise could go forward with the plan and complete the capping simultaneously if it receives RIDEM approval. The plan also needs approval from CRMC and the R.I. Department of Transportation, he said. (If zoners approved the special-use permit but then a state agency required the developer to make major changes to the plan, AP Enterprise would need to come back to the zoning board to seek modifications to the permit, said Cervenka.)

• Board member Charles Donovan said he was concerned about the proposed hours of operation —7 a.m. to 8 p.m. He said he’d like play to start no earlier than 8:30 or 9 a.m. Cervenka said the applicant was amendable to reasonable restrictions on hours.

• Cervenka said the proposal aligns with the town’s 2022 Comprehensive Community Plan and also meets needs spelled out in the town’s recently approved Parks, Recreation and Open Space Master Plan. “There is a deficit of volleyball courts in the town,” she said.

• Despite what some opponents have contended, the project’s impact on the surrounding neighborhood would be minimal, Cervenka and witnesses for the developer said. “The good part about sand is it has a sound-deafening quality to it,” said Palmer. Added Cervenka, “There will be no lighting, no speakers, no amplified music. There will be no permanent structures, and no impervious surfaces that will generate additional runoff.” 

• Melissa Hutchinson, a Tiverton architect who owns MH Architect, said a crushed gravel entrance from Park Avenue would include a turn-around so rescue vehicles can enter and leave the site with ease. There would be two fences — a six-foot perimeter chainlink fence around the site and a four-foot security fence with wind screens close to the courts. Due to the 12-foot grade change necessitated by the capping, “You don’t get a very clear view of the courts themselves” while driving along Park Avenue, Hutchinson said.

• Nott recently visited the site and found phragmites, which he said is usually a sign of wetlands. Audie Osgood, a civil engineer and senior project manager at DiPrete Engineering, said multiple criteria are used to determine whether wetlands are on the former dump site, and that hasn’t yet been resolved.