November 15, 2013 12:53PM
By DALE P. FAULKNER
Sun Staff Writer
WESTERLY — A Superior Court judge has issued a restraining order prohibiting the Zoning Board of Review from going forward with a hearing on Copar Quarries of Westerly and Westerly Granite Co. Inc.’s appeal of cease and desist orders filed against the companies by the town’s zoning officer.
The restraining order, issued Tuesday by Associate Justice Brian Stern, enjoins the board from resuming the hearing, which had been scheduled to resume tonight.
The two companies filed a 36-page motion seeking the restraining order, claiming that there were a host of missteps and irregularities by both the board and the Town Council that “demonstrates the appeals process is hopelessly and irrevocably tainted” and arguing that Stern himself should hear the appeals. While he issued the restraining order, Stern has not yet ruled on whether he will take the case or allow the appeals hearings to proceed at a later date under the board’s purview.
The motion points to comments made by two zoning board members following the conclusion of a Nov. 5 meeting as proof that the companies can not receive fair consideration from the board. The meeting had ended but audiovisual equipment continued to run, recording a conversation involving some of the board members, including Henry Boeniger and Frank Verzillo. In the recording, Boeniger says, “I’ve got a pretty good idea of how I’m going to rule on this thing” and Verzillo responds, “I think we all do.”
The hearing has been fraught with delays. To date, just two sessions have been devoted to actual testimony from experts concerning the orders issued by former Zoning Officer Elizabeth Burdick in August 2012.
Lawyers for the two companies also asserted, in the motion, that the Town Council, during a closed-door executive session on Friday, discussed removing Boeniger and Giorgio Gencarelli from the zoning board and replacing them with new members.
The companies had sought to disqualify both members from the proceedings, saying that Boeniger had made prejudicial comments about the case both to the Town Council and to The Westerly Sun before the Nov. 5 meeting. Gencarelli, the lawyers contend, has a conflict of interest because he is the former father-in-law of Danielle Balbat, a Quarry Road resident who is suing the two companies and the town. Balbat has claimed that harmful stone dust has drifted from the quarry onto onto her property, endangering the health of her children.
The state Ethics Commission issued an advisory opinion in June saying that Gencarelli, the grandfather of Balbat’s children, did not have a conflict of interest and could serve as a member of the board hearing the Copar case. The lawyers say that the board failed to conduct a hearing on their move to have the two members disqualified and that the commission’s ruling pertains only to whether Gencarelli might have run afoul of the state ethics code, and does not settle whether he could hear the case without bias.
During the Nov. 5 meeting, Boeniger and Gencarelli both discussed the request that they be disqualified, with both board members saying they believed they could deliver fair and impartial decisions. The Copar and Westerly Granite lawyers asserted in their motion that the Town Council would choose new zoning board members who “would be partial to the Town Council’s stated belief that Copar must be shut down.”
Jeffrey Gladstone, Copar’s lawyer, and Christopher Mulhearn, the lawyer for Westerly Granite Co. Inc., accuse the Town Council of repeatedly threatening, “both in its public and executive sessions, that it would attempt to shut down Copar, even going so far as suggesting that it would place a chain across Copar’s entrance.” The Town Council has made it clear, the motion says, that its main interest is in “beating Copar into submission” rather than enacting proper public policy or following the law. The motion goes on to assert that five recently approved ordinances are part of a campaign of selective enforcement against the two companies.
The Town Council violated the state’s Open Meetings Law by discussing the Copar case by nonpublic email, the motion also claims.
It also reviews the companies’ long-standing claim that the zoning board lacks jurisdiction in the case because it involves, the lawyers assert, a determination of whether the quarry operation is a pre-existing use that does not conform with the town’s zoning laws and whether that use was expanded or ever abandoned.
The zoning board also failed, the motion claims, to conduct a separate public hearing on whether to consolidate the hearing on Burdick’s orders with a hearing on cease and desist orders issued by Robert Craven, the lawyer who was appointed by the town to serve as special zoning officer in the Copar case. The board has not yet made a decision on whether to consolidate the hearings but discussed the possibility during the Nov. 5 meeting. Mulhearn objected at that time.
Burdick accused Copar, which leases land from Westerly Granite Co. Inc., of improperly expanding quarrying operations onto land where it was not permitted. Burdick later issued, the lawyers contend, a draft revision of her order, finding that quarrying operations should be permitted in the area that she previously said was off limits. The lawyers claim that Burdick was coerced by Town Manager Michelle Buck, while she was town solicitor, and John R. Payne Jr., who was the zoning board’s solicitor at the time, to change her opinion, and that Payne modified the decision to state that quarrying activity had previously been abandoned on the portion of the property in question and therefore should not be allowed to continue. The town has disputed that Burdick was coerced or that she did not agree with the final version of her decision.
Gladstone and Mulhearn also note, in the motion, that the matter is likely headed to court regardless of whether the zoning board is allowed to resume and regardless of its decision. “There is little doubt that this matter will end up before this court anyway, making the continued futile hearings before the Zoning Board of Review of little consequence.”
Town Council President Diana Serra could not be reached for comment. Richard Boren, the lawyer representing the town in the Copar case, did not return a message seeking comment. Gladstone also did not return a message.
Buck said the Town Council is expected to discuss the latest developments in the Copar case in an executive session scheduled for Thursday.