NORTH SMITHFIELD – A legal back and forth spanning decades between the town and a company that mines sand and gravel continued this week, with a judge ordering that operations shall remain status quo for the time being, pending a viewing of the business’s property and a hearing on the issues.
The order on Wednesday, Dec, 21 comes in response to motions filed in Superior Court by Material Sand & Stone Corp. seeking an entry of judgement and a permanent injunction for two previous court decisions blocking the town from enforcing additional restrictions on the business’s activities – and from bringing the company before North Smithfield’s Zoning Board.
The ruling marks a new era for litigation that dates back to the 1980s, when the town first sought to limit the company’s use of town roadways, and questioned the family’s right to extract earth from one portion of their 89-acre property off of Old Oxford Road. And it follows recent assertions by one resident that the business has been operating illegally.
According to documents filed with the court on Monday, Dec. 19 by attorney Thomas Plunkett of Providence-based firm Kiernan, Punkett & Redihan, LLC on behalf of Material Sand, the company – owned by the Pezza family – has conducted earth removal operations in town since 1958.
A long history on the property provided by the plaintiff notes that North Smithfield adopted an Earth Removal Ordinance in 1979, but as a pre-existing business, the Pezza family’s operations were considered exempt.
In 1984, then owners Leonard and Carmine Pezza purchased a 32-acre lot adjacent to two others the company was already mining, and filed to combine the three lots into one.
Building & Zoning Official Bob Benoit issued a cease and desist order for earth removal operations on the more recently purchased parcel in 1998, noting it did not enjoy the same privilege of pre-existing use as the Pezza’s original land. But according to the legal filing and accompanying documentation, Benoit rescinded that order the following month after he was, “furnished with uncontradicted evidence of lawful blasting and rock removal on the property dating back to the 1950s.”
With the Town Council reportedly pushing at the time for another order to halt operations, the Pezzas petitioned the court for relief.
A second dispute between the business and the town dates back to 1990, when officials asserted that the company needed a road use permit for trucks weighing more than 35,000 pounds traveling on Pine Hill and Pound Hill Roads. Material Sand has contended that the road use restrictions are, “unlawful and unconstitutional,” but ultimately applied for the town permit, according to court documents.
The Town Council at the time granted that road use permit, but limited the business to 20 trips a day between the hours of 8 a.m. and 5 p.m. and banned travel during school bus runs. The following year, the town imposed an additional requirement that a flagger be present, according to the case.
“This, along with the other restrictions prompted filing of the complaint,” notes the recent summary.
The court issued a restraining order preventing enforcement of the town’s flagger requirement, and in the years that followed, Material Sand used the roads within the town’s other permit restrictions, according to the attorney. Later, the business obtained permission to use a private road, eliminating the need for truck travel on Pine and Pound Hill, which provide the only public routes to the property.
But when permission to use the private road ended in 2001, and the business applied for a new road permit, “the town delayed acting on the request,” according to Plunkett. The Pezzas headed back to court and that November, and an order was issued that dictated new times and dates when the roads could be used – but did not limit the number of trucks. The business was also ordered to issue an annual bond for repair of the roadways.
“Both parties made concessions,” the summary notes.
Documentation provided to the court shows a $35,000 bond has been taken out annually with The Hanover Insurance Group.
Two cases in Material Sand & Stone Corp. vs. the Town of North Smithfield were later consolidated, and the parties were back in court in 2004 after the the building official issued another order that aimed to stop excavation.
“The court ordered the status quo to remain in effect and that the town refrain from scheduling a Zoning Board hearing,” notes a memorandum. “The earth and rock removal and blasting continued.”
Attempts once again to bring the company before the zoning board for a hearing in 2006 ended with similar results, with a court order that a hearing be stayed pending further action from the court.
But in recent discussions with town officials and media including NRI NOW, resident Jason Richer has contended that the business’s right to non-conforming use – and the resulting exemption from town ordinances – ended in 2013 when the business was sold by the Pezzas for $1,276,000 to Pound Hill Realty, LLC. The earth extraction company remains in the Pezza family with a new generation now engaging in the manufacture, distribution and sale of sand and crushed stone products, including Robert Pezza, who serves as president, and Michael Pezza, who serves as vice president.
Asked about the merit of Richer’s assertions this week, Town Solicitor David Igliozzi replied, “It would be inappropriate for me to comment on Mr. Richer’s position, especially because he may become a party in the case. The Plaintiff’s attorney sent Mr. Richer notice of the court hearing.”
Material Sand, meanwhile, asserts the disputes were already settled, that the ordinances don’t apply to their operations, and that enforcement would cause the business irreparable harm. The business, which employs around 40 people, is seeking a permanent injunction finalizing the two previously issued orders granting injunctive relief.
“These issues have been settled since 2006 and the operations have continued without any problem,” noted the attorney.
Igliozzi has filed multiple objections to the motions on behalf of the town, as well as a motion for view of the business locations, “to assist the court with findings of fact,” granted this week by Judge Daniel Procaccini.
A hearing on the pending orders has been continued to Thursday, Jan. 12.