November 8, 2013 11:38AM
By DALE P. FAULKNER
Sun Staff Writer
WESTERLY — Illness has prompted yet another delay of a Zoning Board of Review hearing on the appeal of cease and desist orders issued to both Copar Quarries of Westerly and Westerly Granite Co. Inc.
On Tuesday the board voted 4-1 to once again postpone resumption of the hearing, this time to Nov. 13. The delay was granted after the board discussed the absence of Copar’s lawyer, Jeffrey Gladstone. Thomas Enright, a lawyer in Gladstone’s office, said Gladstone was unable to attend the meeting Tuesday because of a “private familial medical issue,” and asked the board to postpone the hearing and to stop discussing the case.
The board’s decision prompted angry outbursts from some in an audience of about 40. Christina Holden-Shea, a Charlestown resident, yelled at the board and waved a plastic bottle of brown-tinged, murky water she said was evidence of damage caused to her drinking water well by blasting conducted by Copar at its Church Street quarry.
Two Westerly police officers were posted at the hearing and a third arrived after many audience members erupted in anger.
The cease and desist orders were issued in August 2012 by former Zoning Officer Elizabeth Burdick, who cited the companies for willfully violating the town’s zoning ordinance, failing to properly use water in the quarrying process, and making excessive noise. Burdick also cited Copar for improperly expanding its operations beyond a 700- by 1,000-foot work area delineated in the zoning use certificate originally issued to Westerly Granite in 2007.
Board member Mark Doescher, who eventually voted in favor of postponing the hearing, said he was disappointed by the need to continue the hearing, which started in February after six months of delays requested by both the town and the two companies. Additional delays occurred when Robert Ritacco, board chairman, recused himself from the hearings because of a business relationship with George Comolli, a principal in Westerly Granite. Efforts by the town and the companies to mediate the dispute; a medical problem of a board member; and the board’s inability to meet a legal quorum because of the frequent absence of a board member, have also pushed back the proceedings.
“A month ago we were going to hold hard and fast on these dates and now we’re going to hold off?” Doescher said. “We were going to hold them to the fire, make them testify, make them produce witnesses, make them present their cases and again we’re going to give them a delay? What’s it going to be next week?”
Board member Thomas J. Capalbo III, who voted against postponing the hearing, noted Enright’s presence and said Christopher Mulhearn, Westerly Granite Co.’s lawyer, could have presented his case Tuesday.
Richard Boren, the lawyer representing the town in the hearing, said that he believed the hearing was going to be postponed based on earlier conversations he had with Mulhearn and Per Vaage, the lawyer serving as solicitor to the board for the Copar case. Boren said he did not bring exhibits and told former Assessor Charles Vacca, who he plans to question, not to attend. Boren also said he was concerned that a decision to proceed with the hearing would have been grounds for a new appeal by the two companies.
Doescher was joined by board members Giorgio Gencarelli, Henry Boeniger, and board Vice Chairman Frank Verzillo in voting to postpone the hearing.
The meeting started with a discussion of requests made by the lawyers for Copar and Westerly Granite for Boeniger and Gencarelli to disqualify themselves. After the meeting, Mulhearn and Enright declined to answer questions but Boeniger said the lawyers had filed a request, through the town, for him to step down, claiming that he had made prejudicial comments about the case. Boeniger disagreed, saying he had been “fair and impartial” and would remain so.
Gencarelli said he was asked to disqualify himself because he is the former father-in-law of Danielle Balbat, a neighbor of the quarry who is suing the town and the two companies. She asserts that the zoning permit that Copar uses to operate was issued improperly. Gencarelli, who had briefly recused himself months ago, said he would continue to participate in the hearings, noting that the state Ethics Commission had issued an opinion determining that he did not have a conflict of interest.
Before deciding to postpone the hearing, the board discussed the possibility of consolidating it with a hearing that will also have to be held on the two companies’ appeal of separate cease and desist orders issued in February by Robert Craven, the lawyer hired by the town to serve as special zoning officer for Copar’s operations. Verzillo has said for several months that he was considering asking the board to consolidate hearings on the two sets of cease and desist orders.
One of Craven’s assertions is that faulty maps were submitted to the town before the zoning certificate was issued to Westerly Granite Co. in 2007. Craven revoked the certificate, but Copar is continuing to operate while it appeals Craven’s orders.
On Tuesday Boeniger said a potential decision on Craven’s orders could render the hearings on the earlier orders moot.
“If the whole quarry is ruled to be not zoned properly then you don’t have to worry about the first one,” Boeniger said.
Mulhearn said the board has no legal ability to consolidate the hearings and that to do so would be a “derogation of the statutory authority given to this board.” He also said that consolidating the hearings would force the two companies to change their legal strategy, a move he said was “inherently prejudicial and unfair.” Boren disagreed, saying the board could at least consolidate the testimony portion of the hearings but render separate decisions on both sets of orders and appeals.