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Another Blow for Asphalt Plant Opponents in Westford; Judge Denies Motion to Vacate Settlement

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Asphalt plant opponents took another blow Nov. 7 when a Land Court judge denied the town’s motion to vacate a judgment.

The ruling leaves residents with just a 20 day window to appeal the Major Commercial Project permit the Planning Board must issue under an agreement between the town and Newport Materials, LLC, and 540 Groton Road, LLC. Both companies are owned by Richard DeFelice of Nashua.

DeFelice’s push to build and operate an asphalt plant on about 3 acres of a 115-acre parcel at 540 Groton Road began with an application filing in 2009 and a denial by the Planning Board after a series of public hearings in April 2010. DeFelice appealed the decision in Land Court where Judge Alexander H. Sands, III, remanded the matter back to the Planning Board in December 2014. The Planning Board again denied the proposal in April 2016 and DeFelice appealed again. Somewhere along the seven-year timeline, neighbors of the site formed the Route 40 Clean Air Coalition to fight the plant. The group included neighboring residents of Chelmsford are also affected.

Groton Road, part of Route 40, is a strip of asphalt that runs east and west from bordering Chelmsford to Groton.

Selectmen announced a settlement with Newport on Oct. 6 sparking weeks of rage by residents across town who were unmoved by the $8.5 million won in concessions. The announcement took the community by surprise and created a tidal wave of disillusionment. Protestors noted there had been no indication that selectmen were negotiating a settlement. When announcing behind-closed-doors sessions about the court battle, all public documents referred to the deliberations as “mediation” instead of “settlement,” they charged.

The opponents demonstrated, some 200 deep, twice in the town center, filed formal complaints against selectmen accusing them of violating the Open Meeting Law, planted “no asphalt” signs in their front yards, and used social media to rally and inform each other. There were even offshoots of the Clean Air Coalition that formed, such as a coalition of Asian residents who communicated with each other in Chinese via social media. A Chelmsford faction engaged in separate legal action.

An Oct. 25 public hearing that filled almost 800 seats at Westford Academy’s Performing Arts Center and lasted almost seven hours, left selectmen with no doubt that residents wanted the agreement nullified and wanted to continue fighting DeFelice in court.

The residents complained bitterly that selectmen had not properly posted notice of ongoing negotiations with Newport representatives and therefore had violated the Open Meeting Law. Town Counsel Jonathan Silverstein rebutted the claims saying only one selectman, Don Siriani, had attended the meetings and the board had therefore not breached the law which prohibits two or more officials to meet behind closed doors without posting the reason for the meeting.

On Nov. 3 the board issued a statement saying it had directed Silverstein of KP Law of Boston to vacate the settlement because the judge had removed a paragraph that gave the town the ability to hold DeFelice in contempt of court if he did not abide by the stringent operational conditions to minimize traffic, noise, odor, and airborne particles.

“The basis of the motion is that the Land Court unilaterally altered the terms of the Agreement for Judgment to eliminate the Town’s ability to enforce the terms of the Agreement (including over 100 protective conditions negotiated by the Town) through contempt of court,” said the statement.

DeFelice’s attorney Thomas R. Reilly filed an opposition to the town’s motion to vacate judgment on Nov. 7 and asked to have “the language concerning Contempt” reinserted.

Sands complied.

“…this court is now satisfied that there is no risk in allowing the Agreement for Judgment to be enforced by contempt proceedings,” he wrote.

Then he wrote, “Defendants are hereby directed to file the Special Permit with the Westford Town Clerk by or before Monday, November 14, 2016, so as to trigger the twenty-day appeals period set forth in G.L. c. 40A, section 17.”

As word of the judge’s order reached a private Facebook group on Nov. 10, residents labeled Sands “biased” and “corrupt.”

But Reilly defended the judge.

“He’s playing it right down the middle,” Reilly said. “He’s interpreting the bylaw.”

Follow Joyce Pellino Crane on Twitter @joypellinocrane.