Lawyer calls proposed excavation ordinance ‘dead on arrival’
Lawyer calls proposed excavation ordinance ‘dead on arrival’
April 17, 2014 04:50PM
By CYNTHIA DRUMMOND
Sun Staff Writer
CHARLESTOWN — The public hearing on the town’s proposed extraction ordinance which began March 10 continued Monday, with the revised ordinance drawing even more criticism than the original.
But before the discussion of the revisions began, the council introduced a new resolution asking the General Assembly to amend Rhode Island general law to give the town authority to regulate gravel banks and quarries. Several attorneys at the March hearing argued that state zoning enabling legislation governed all land use issues, and that interfering with a legal operation constituted an unauthorized amendment of a zoning ordinance.
Town Council President Thomas Gentz said it was important to resolve the issue of whether the town had the authority to regulate operations currently doing business there.
“A particular comment concerned whether the town had legal authority to regulate excavation operations located in the town under their police power authority,” he read from the resolution. “Whereas the administrative staff made revisions to the draft excavation ordinance amendment and suggested an amendment to the Rhode Island general laws also be pursued to eliminate any questions regarding whether the town has legal authority to regulate excavation operations in the town.”
Town Solicitor Peter Ruggiero reiterated his assertion that the town did have the authority under its police power, but he conceded that others might disagree with his position.
“That authority does exist. It resides in police power and your general ability under police power and authority to maintain the peace and order in the community. The problem being, that’s my legal opinion. The others have their legal opinions, and if you were to adopt the licensing ordinance as it’s presented to you, there’s a good likelihood of a lawsuit,” he said.
Attorney Margaret Hogan, representing Shoreline Gravel on Pietila Road, said existing state law did not give towns authority to regulate operations on private land.
“I think it’s unfortunate that you would think that it would be appropriate to submit such legislation,” she told the council.
Council members voted 4-1, with Lisa Dibello opposed, to send the resolution to their state legislators.
The council then moved on to the excavation ordinance itself. There are a half dozen quarries and gravel pits in Charlestown, and no municipal regulations govern their operations.
The Copar quarry, which has elicited the most complaints from Charlestown residents, is located across the town line in Westerly, but continuing problems reported by neighboring property owners have prompted the town to look for a way to regulate similar operations within its borders.
The ordinance has undergone several revisions, which include taking licensing power from the building official and giving it to the town clerk’s office.
Thomas J. Enright, an attorney representing Copar Quarries who works in Copar lawyer Jeffrey Gladstone’s office, was the first to speak. He raised multiple legal issues, the most serious of which were the town’s exceeding its authority and the violation of due process.
“There is an absolute lack of criteria as to whether and in what instances the Town Council will be able to grant a license, deny a license or grant a license with conditions,” he said. “The ordinance, in fact, doesn’t speak at all as to what considerations will be made by the Town Council. It speaks as to what’s included in the application and it speaks as to whether or not the Town Council can approve a license. Such a lack of criteria rises to the level of a violation of due process clauses of the Rhode Island and federal constitutions.”
Enright concluded his lengthy argument with the statement that the ordinance was so flawed it was unsalvageable.
“Without any such due process procedures and without any state authority to do what the town is purporting to do, I would feel, and Copar feels, as though the ordinance at issue is so fundamentally flawed, it’s incapable of being saved,” he said.
Hogan also presented a lengthy argument on behalf of Shoreline Gravel, during which she also accused the town of trying to overstep its authority.
“Not only is it a zoning issue, the issue of extractive industries is exclusively a zoning issue and you have been preempted from enacting any regulations that conflict with what the [state] Zoning Enabling Act sets forth,” she told the council.
“Your ordinance is the worst ordinance I believe I’ve ever reviewed,” she continued. “It’s constitutionally deficient, devoid of any sense of propriety or proportionality to the problems that the people in town are facing from an entity in another town. There are ways to resolve that problem. This is not it.”
Land use attorney William Landry, representing South County Sand and Gravel Inc. and Charlestown Land Company LLC, said the revisions to the ordinance had made it even worse.
“It’s got all the same issues in it. It gives authority to the council that 15 years ago the Rhode Island Supreme Court said councils can’t give themselves. It takes away all the due process and appeal provisions that the law requires,” he said, noting that the town’s own attorney had warned that the ordinance would probably be challenged.
“You have a good lawyer who’s already identified the fact that this is dead on arrival,” he said. “I would urge you to use your talented counsel to develop a nuisance ordinance. Don’t go in this direction.”
After listening to the lawyers for more than an hour, a few residents got up to speak. Several questioned the effectiveness of the ordinance, but everyone asked the town to do whatever it takes to protect its residents.
“None of us want additional quarries operating within Charlestown,” said Pat Kent. “Quiet enjoyment of your property doesn’t exist when you have rock crushers, when you have trucks going up and down the road all the time.”
Some councilors asked whether they should consider scrapping the ordinance.
“It seems to me that it goes beyond the scope of nuisance. Are we trying to regulate matters that really should be land use matter? It seems to me to be totally overboard,” council Vice President Paula Anderson said.
“It’s been pointed out to us that there are obviously significant flaws in it,” DeBello said. “Even the people who want to see the ordinance.”
Gentz said Ruggiero, who had drafted the ordinance, would consider the comments and criticisms.
“I would expect that he would this under advisement, and because of his judgment on nuisance and extraction and all the things we’ve heard tonight, he’ll do his best to draft something that will be the best for the town,” he said.
“Should we be drafting anything at all?” DiBello asked. “Should we be looking at a different way of approaching this?”
The public hearing on the ordinance was continued once more to May 12, but council members will meet with Ruggiero in executive session before then to discuss it.