Concrete Plant Meeting Tonight and Nap’s Letter

The City Council for Cranston is meeting publicly tonight at 7 p.m. and will be deliberating on the following proposal sponsored by Paula McFarland and Emilio Navarro:

VI. DOCKETED RESOLUTIONS

Resolution Urging the Cranston Zoning Board of Review to Revoke the Building Permit Issued by the Building Official for the Construction of a Concrete and/or Cement Plant Adjacent to a Well Established, Heavily Populated, Residential Neighborhood, and Directing the City Solicitor and its Legal Counsel to Prepare a Lawsuit and Take all Steps Reasonably Necessary to Prevent the Construction of the Concrete and/or Cement Plant. Sponsored by Council Vice-President McFarland and Councilman Navarro.

Also of interest is this letter from Mayor Michael Napolitano outlining his position on the matter, from the Projo, published on March 21, 2007:

I feel compelled to clarify The Providence Journal headline which read: “Mayor will not intervene in cement plant case.” The headline should have read: “Mayor prohibited by law and/or court from intervening in cement plant case.”

Throughout the campaign, and at present, I have been personally opposed to the construction of the Cullion [Concrete Corp.] cement plant on Marine Drive. I have stated that the cement plant is not conducive to the surrounding residential neighborhood. It will adversely affect the neighbors’ covenant of quiet enjoyment, increase traffic congestion, be detrimental to air quality, and negatively impact real estate values.

In addition, the cement plant will be in close proximity to the CLCF Building and complex, and the silica that will be produced in the air will be harmful to children and adults who utilize the facility. Moreover, the plant could jeopardize wetland areas and rivers leading to the Bay. Consequently, the cement plant poses a threat to the health and safety of Cranston residents and ultimately adversely affects the quality of life.

Many individuals who live in close proximity to the proposed plant have requested that I revoke the permit which has been issued. Pursuant to R.I. General Laws No. 23-27.3-114.6 entitled, “Revocation of Permits” only the building official may revoke any permit or approval. In addition to the neighbors’ concerns, I believe that the failure to obtain Department of Environmental Management approval, the failure to construct the facility within six months from issuance of the permit, the failure to obtain an extension to build, and the area’s designation as open space on the city’s Comprehensive Plan, gives the building official or his designate ample grounds to revoke the permit, if the law allowed.

R.I. Gen. Laws No. 45-24-65 entitled, “Appeals – Stay of Proceedings” states an appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning enforcement officer from whom the appeal is taken certifies to the Zoning Board of Review that by reason of facts stated in the certificate, a stay would, in the officer’s opinion, cause imminent peril to life or property. Upon review of this statute, I immediately ordered the alternate building official and zoning enforcement officer to determine whether the structure posed an imminent peril to life or property. If said structure had posed an imminent peril to life or property, I would expect that the acting building official in the performance of his duties would revoke the permit for public safety. It was determined by the city official that the structure did not pose an imminent peril to life or property. [full text]

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One response

  1. It’s interesting that the City Council will even entertain a resolution urging the ZBR to revoke the Cullion/Karleetor concrete plant permit. Last week, when it could have actually done something substantive, it whiffed. As you may recall, last week at the Ordinance Committee meeting, a proposed ordinance addressing the addition of the two additional alternate ZBR members was to be heard. But instead, according to Frank Mattiucci of the Concerned Citizens for Responsible Zoning and Development, that proposed ordinance was tabled. The chair of the Ordinance Committee, who informed him that the proposed ordinance would be tabled, is Paula McFarland.

    Now, the same Paula McFarland is the co-sponsor with Mr. Navarro, of a resolution urging the ZBR to do what it can’t do even if it were disposed to revoke the Cullion/Karleetor building permit. First, the conflicts of interest which are preventing the ZBR from meeting are still not resolved and will not be resolved as a result of this resolution. Thus, we could all sing a chorus of support for the resolution and it would be of no substantive use. Unless or until two alternates are added to the ZBR or the Ethics Commission issues a “rule of necessity� and waves any possible conflict among its members, the ZBR can’t meet on this issue – let alone act either way in disposition of the issue.

    Second, it has been confirmed to me by someone I am not permitted to name that all members of the City Council are to remain silent on this issue pending the resolution of the Cullion suit brought last year against the individual members of the council. What is especially interesting here is that all new members were specifically directed to say nothing about this issue, lest that they too be named as respondents in the Cullion suit. So here we have newcomer Mr. Navarro (in my estimation to his great credit) straying from the counsel of silence and putting his name on this resolution.

    Here’s where it gets really interesting. If this resolution is heard and acted upon, the Cullion attorney will probably do two things: all the new members of the council will be added to Cullion’s action against the City Council and a restraining order will be sought to enjoin the council from any action on this issue until, at least their appeal of Judge Indeglia’s order is heard by the state supreme court. To this point, the City Council has not been a party to any alleged restraining order that purportedly limits the administration. I’d have to guess that any attempt to restrain the City Council would fail, but given the nature of this case, who knows?

    This brings me to the Mayor. There is no TRO in place at this time that prevents the Mayor from doing anything. There is a court order, but it’s an order that the Mayor freely entered into. So, if the Mayor tells anyone that his hands are tied, he’s right – but it needs to be pointed out that he also supplied the rope. On March 7, the parties agreed in Judge Indeglia’s chambers to three things: that because of the appeal to the ZBR, all activity was stayed until the appeal was heard so there was no need to issue a TRO; that the Mayor would refrain from any act to rescind or revoke the building permit; and, that Cullion/Karleetor would refrain from any further construction at the site until the matter is resolved. So, the question in my mind is why would the Mayor, unless he was already predisposed not to act, have entered into this agreement?

    It seems to me that beyond the more narrow issue of the concrete plant is the judicial intrusion into the executive function of the Mayor’s office. This smacks of prior restraint. Clearly the court has the function of judicial review of an executive’s actions, but it’s on thin legal ice when it imposes itself preventing acts that haven’t yet taken place. However, as I said previously, there is no TRO – only a court order, entered into freely by the Mayor, stripping himself of any power to act on this matter until the ZBR meets – which isn’t going to happen soon.

    One last thing about the enabling legislation that has yet to be enacted by the General Assembly. This bill was introduced by Rep. Lima on Feb. 28. It was referred to the House Municipal Committee, where it languished until March 22, when it was passed by the House. Now it begins the process in the Senate, where it’s not certain that it will receive any quicker consideration.

    The CCRZD was told on March 7 by a city official, in defense of the Mayor’s acquiescence to the Indeglia order, that there was a bill before the House and on that day a companion bill would be introduced in the state senate to permit the addition of the two alternates to the ZBR. He assured all those present that things would move with some speed as the General Assembly would soon act, the city council would pass the required ordinance, candidates would be interviewed and vetted for the two new alternate positions, and a hearing on the matter could be conducted by May (I think he meant this year). Here it is, March 26, and the bill has only passed the House – who knows when it will pass the state senate, but without a sponsor pushing it, don’t expect anything too soon.

    Let’s not forget John Mancini’s (one of the Cullion/Karleetor attorneys) attempt to derail the snail’s pace of enacting this legislation by threatening to file a motion for contempt of court against Rep. Lima. On what basis that motion would be made is a mystery, and to her credit Lima told him to put it where all such things should be put.

    To sum up – what will happen tonight with the resolution is nothing more than political theater and no small amount of political grandstanding. It’s fun to watch, but in the end not much will happen. The ZBR is an independent body and therefore cannot be directed either by the Mayor or the Council. And if there’s anyone who doesn’t know the council’s position on this issue – at least its stated position – then they haven’t been paying attention. So, the purpose of the resolution is what? This is the functional equivalent of a non-binding resolution. I’m not a fan of non-binding resolutions because they expend energy and political capital that could be used more substantively. But, there is something therapeutic – if not cathartic – about people stepping up and at least taking a position.

    But this all happens at the expense of doing other things. The Mayor, under the charter, can conduct a thorough investigation into how and why this permit was issued to begin with. Under the charter, the city council has the same investigatory power, where it can compel sworn testimony from all witnesses – even Kerry Anderson. The council’s “investigation� last August wasn’t even a good fact-find. Even if one were to accept the position of the Cullion legal team and agree not to revoke the permit, there is nothing preventing a complete and thorough investigation and airing of this matter.

    Second, the Ordinance Committee could act with all reasonable haste to prepare for enactment by the full council of the required ordinance to permit the additional two alternates for the ZBR once the legislature completes its task.

    Third, the city should make it unmistakably clear to the legislature that it needs to act quickly on this matter. I don’t see anything approaching this level of interest from anyone in the city. The legislature can act quickly when it considers tax breaks to an adjunct of a special interest group, but proceeds at a glacial pace when it comes to doing something that might impact broad public policy.

    Fourth, the mayor can and probably should revoke the building permit. For one reason, there’s a city ordinance, admittedly passed just after the permit was issued, that prohibits such businesses in the city. There are legal arguments for why the retroactive application of the ordinance could apply here. Thus, he would be in legal limbo on this issue. For another reason, the Mayor’s logic on this issue makes no sense to me. In his letter to the editor in the projo, he stated that he sent two officials out to the site to determine whether there were any health and safety concerns related to the construction of the concrete batching plant. When told that there weren’t any concerns, he decided to acquiesce on March 7. This begs the question – he admits that this business doesn’t belong in the middle of a neighborhood, that this business poses health concerns to the neighbors, and that this business will impact “the covenant of quiet enjoyment� that the neighbors have in their properties. If all of that is foreseeable and true, and I believe he’s right and it is, then why wait until the plant is built before it’s shut down? Of course the plant poses no threat to the health and safety of the residents; it’s not yet in operation. However, if he thinks the city is in danger of getting sued now, wait until he tries to close the plant after it begins operations and in fact does pose a health hazard to Cranston residents.

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