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Neighbors Seek to Appeal Asphalt Plant Settlement

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Newport Materials at 540 Groton Road reached a settlement with Westford's Planning Board that will allow an asphalt plant to be built on the premises. FILE PHOTO
Newport Materials at 540 Groton Road reached a settlement with Westford’s Planning Board that will allow an asphalt plant to be built on the premises. FILE PHOTO

 

IF YOU GO…

WHAT: Public forum to discuss asphalt plant settlement

WHEN: Wednesday, Oct. 12 at 7 p.m.

WHERE: Stony Brook School, 9 Farmer Way

An $8.5 million settlement between the town and a local businessman’s company could mean residents in the Nabnasset section will eventually co-exist with an asphalt plant, unless a group of nine residents successfully appeals the agreement.

Newport Materials, LLC, and 540 Groton Road, LLC, reached an agreement with the town’s Planning Board and Board of Selectmen that will allow the manufacturing of bituminous concrete on a small portion of a 115-acre parcel owned by Richard DeFelice of Nashua. His attorney, Douglas Deschenes of Westford, expressed satisfaction with the outcome.

“I am obviously thrilled that Newport will be receiving the permits needed to move forward with its project,” he stated. “… it has always been my position as the Zoning Attorney for Newport that it was entitled to those permits from the beginning as it had satisfied the legal requirements under the law, and the specific requirements imposed by the town.”

The Opponents
But Attorney Richard J. Yurko of Boston is representing residents from Chelmsford and Westford who live in the vicinity of 540 Groton Road, the location where DeFelice hopes to build his plant. The neighbors dispute the settlement. On their behalf, Yurko has filed in Land Court an objection to the “Proposed Judgment,” which argues that the judge should not approve the settlement based on Open Meeting Law violations, and a “Motion to Intervene,” which seeks to uphold a zoning bylaw that the Planning Board is no longer defending. In March 2015 the Zoning Board denied a multiple use variance. The neighbors argue the denial should be upheld.

Yurko’s clients are not alone in their opposition. The announced settlement on Oct. 5 sparked anger among dozens of residents who expressed on social media their objections to the 2.73-acre plant. Much of the anger was directed at town officials who agreed to the settlement.

“That plant will never be light manufacturing no matter how they spin it. I feel for all those families in Greystone and ones living close that will inhale that pollution day in and out…Oh but what ‘perks’ the town got. They are a joke. Embarrassing,” wrote Jennifer Noel of Westford. Greystone is a large-scale residential development that abuts the land owned by Newport.

The settlement was signed by Selectmen Don Siriani, Mark Kost, Andrea Peraner-Sweet, and Chairman Kelly Ross, as well as Planning Board members Matt Lewin, Katherine Hollister, and Darren Wizst.

Explaining the Settlement
In response to the opponents, Ross released a letter dated Oct. 6 in which he acknowledged residents’ discontent:
“The Board of Selectmen and Planning Board understand and share the frustration and disappointment that many of you are feeling about this result. We continue to believe that it is not appropriate to locate an asphalt plant in an area zoned for light manufacturing. But the reality is that a final determination would be made by the Court and not by the Town, and there were strong indications that the Court would allow the asphalt plant to go forward.”

Ross said selectmen and Planning Board members believed it was in the “best interest of the Town to negotiate a settlement that protected and compensated our residents.”

Ross sought to calm the waters by listing some of the main neighborhood protections won by the town:
• Odor control measures must be in place, and failure to control odor can be penalized by revocation of the permit.
• Sound monitoring must be in place, and if mandatory sound levels are exceeded, operations must cease.
• For the duration of the plant’s operation, the 115-acre site is restricted to only three primary uses: an asphalt plant, materials processing, and a solar field.
• The entire site is limited to 200 vehicles per day for all uses.
• No night operations (6 p.m. to 6 a.m.).
• Trucks with more than four wheels must turn left onto Groton Road when exiting the site.
• $200,000 will be dedicated to neighborhood mitigation.
• Newport must pay for consultants retained by the town to monitor compliance with all of these conditions.

Officials won concessions for the town as a whole, Ross said:
• Reimbursement of the town’s legal fees — $550,000.
• 300 tons of asphalt per year for 20 years.
• 20 miles of roadway paving.
• 10 miles of sidewalk construction.
• Repaving of 30 tennis and basketball courts.
• A sport utility vehicle for the Police Department for use in daily operations.

DeFelice struggled for six years to get approval of a major commercial permit for his proposed asphalt plant. He was denied twice. On April 20, 2010, the Planning Board denied the site plan permit and two special permits. Again on April 14, 2015, the board denied DeFelice a special permit for a major commercial property. After the first denial, DeFelice appealed the decision in Land Court. Judge Alexander H. Sands, III, remanded the matter back to the Planning Board, indicating in his 33-page decision that he would be inclined to approve the industrial operation, a fact Ross noted in his letter.

“…in his 2015 Order, the judge quoted from his earlier December 2014 decision ‘…it is difficult to imagine a more suitable location for the construction of an asphalt plant…’”

Ross said that “even with this Order, the Town pressed the Court to allow for additional evidence to be submitted…However, consultations with experts retained by the Town on these matters were not encouraging, and success at trial continued to be in doubt.”

Sands’ Land Court decision dated Dec. 8, 2014, indicated he would ultimately rule in favor of DeFelice’s company. The information was presented in a footnote on page 33, when Sands wrote “…it is the opinion of this court that the Project would be an ideal use of Locus, given its proximity to the Fletcher quarry and Newport’s rock crushing facility, and based upon the overall industrial nature of the area…In sum, this dispute should have been resolved long before it came before this court…”

The “locus” to which Sands refers is the small parcel of almost 3 acres of 540 Groton Road where DeFelice had proposed to locate his asphalt plant. His company owns about 115 acres on which there is a solar electric generation facility and a rock-crushing business. An office building and a storage center for granite materials is also on the property.

The land abuts the site of the now defunct Fletcher granite quarry. The operation of an asphalt plant would require a hot mix asphalt drum, a fuel oil storage tank, a hot oil heater, various storage tanks and silos, a 68-foot venting smokestack, and conveyors, according to court documents.

The Neighbors
Yurko said his clients – Andrea Gauntlett, Alan Nakashian-Holsberg, John Pecora, Lawrence Sweeney, Judith Consentino, Marielana Lorrey, Michael Greely, Craig Galipeau, and James Coveno – can appeal the settlement whether or not Sands signs the settlement agreement or denies them the opportunity to appeal. Yurko argued that town officials had an obligation to the Open Meeting Law to: call a public meeting to announce they were going into mediation; to seek opinions in another public meeting on whether to accept the deal; and to discuss the remediation terms in a third public meeting. The attorney specializes in business litigation, but said he has “an interest in First Amendment work.”

“That’s why I’m representing these nine residents,” Yurko said. “I want to make sure they’re heard.”
On the other hand, Deschenes views the outcome as beneficial to all.

“It is most fortunate for all parties that a structured settlement of the controversy could be reached as both sides will clearly benefit from it,” he stated.

Follow Joyce Pellino Crane on Twitter @joypellinocrane.