Judge orders ‘status quo’ for Material Sand; Court to view North Smithfield property

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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 But according to the legal filing and accompanying documentation, Benoit rescinded that order the following month after he was, “furnished with uncontradicted evidence of lawful blasting and rock removal on the property dating back to the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.

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8 COMMENTS

  1. So tired I had a brain fart. The younger Mr Pezza bought the property 7 years and 2 months after the court appearance. Sorry, my head is in a fog today. Doh!

  2. Jason,
    All of those documents reference Plat 7 Lot 38, including the removal of the cease and desist, which appears to be the 32 acres. They were submitted to the court as exhibits.

    • The most recent cease and desist was issued on 11/01/2004. It was entered to stop the excavation on the 32 acres bought in 1987 (it is incorrectly stated on the documents as bought in 1984).
      Following this, the parties found themselves back in court in Dec 2004. The Judge’s Order put a stay on the cease and desist and enjoined and restrained the Town from conducting a hearing on the appeal.
      That notwithstanding, the parties found themselves back in court on Nov 02, 2006, 2 years later.

      In Oct 22nd 2006, the Zoning Board of Review wrote to Mr Pezza:
      The letter states that an application that was pending before the Zoning Board of Review had been scheduled for Jan 25th 2005 and it had been rescheduled 5 times at Mr Pezza’s request. The litigation had continued and remained unresolved. This was not a “settled” case. The ZBR requested Mr Pezza’s presence at their next meeting, Nov 08, 2006. In the same letter they requested information. they asked what action he wanted to take, whether he wished to move forward with the hearing on Nov 8th and that if he could not move forward, the ZBR would consider dismissing the application without prejudice.

      I do not know if the hearing was accomplish, as I cannot find anything in its regard… It appears both parties stopped addressing the matter and the court closed the case in 2012 in accordance with RIGL 9-8-5.

      In any case, the plaintiffs’ made motions to reassign for hearing and on plaintiffs’ motion for a stay and on the defendant’s objection thereto.
      The stay was granted and the plaintiffs’ motion to reassign was passed. The plaintiffs were to resubmit their motion to amend the complaint. A second amended complaint was provided. A hearing was called for on Nov 28, 2006 at which the plaintiffs’ motion to amend was heard and a motion to file the complaint was granted. All defenses of the defendants were preserved. The stay was once again left to languish…

      The business was then soon sold to Mr Pezza’s son on Jan 13th 2013, less than two months after the last court appearance on Nov 28 2006 and the scheduled ZBR hearing on Nov 8th 2006. The sale of the quarry removed the nonconforming status of the quarry and the younger Mr Pezza failed to adhere to the process of obtaining an exception to the zoning regs which was needed to apply for a special use permit.

      ARTICLE IV.
      SOIL AND EARTH REMOVAL OPERATIONS
      Sec. 11-37. License required.
      (a) As a condition precedent to any earth removal as herein defined, a license shall be required to be
      issued by the town council following a public hearing to be held by the town council and upon the submission of the documents required by section 11-36 and approval by the zoning board of review of a special exception and the payment of a license fee of $50.00 to the town.
      (b) The license shall be issued only to the owner of record and shall not be transferable. Should an
      existing earth removal operation be sold, such operation shall no longer be considered nonconforming and must obtain a license as set forth under section 11-41, herein. This license shall expire at the end of one year and must be renewed annually, together with application for renewal of an earth removal license for another year.
      Plans shall be submitted to the zoning inspector showing any change or anticipated change from originally
      submitted plans of earth removal activities. If no changes are anticipated for the coming year, submission of
      new plans are not required, but the owner of record must so certify in writing upon application for renewal.

      Sec. 11-41. Exemptions from article provisions.
      This article shall not apply to earth removal being conducted on the date of its enactment, on any tract of
      land, up to limits of presently owned property, within the town. The following conditions shall be considered as
      conclusive evidence that such real property is or has been used for the purpose of earth removal:
      (a) Such real property was acquired or leased prior to the effective date of this article;
      (b) Such real property was purchased by an individual, corporation or otherwise engaged at the time
      of acquisition in the business of mineral extraction;
      (c) Such real property, or the substantial portion of such property has not been permanently
      developed, for any residential, commercial (other than farm or agriculture) or industrial
      purposes;
      (d) Such real property contains mineral deposits of a demonstrable economic value;
      (e) Earth material has been removed from such real property, for commercial purposes, at regular
      intervals, over any six-month period, within the last three years;

      and………………………………………………….

      (f) Upon the sale of any real property being used for earth removal activities, the nonconforming
      status of this section shall no longer be considered in effect and any subsequent earth removal
      activities must be licensed and conform to the regulations of this article. The application
      procedure shall conform to section 11-37 herein.

      (Ord. of 6-18-79)
      SECTION 4.
      NONCONFORMING LOTS, NONCONFORMING USES OF LAND, NONCONFORMING
      STRUCTURES, NONCONFORMING USES OF STRUCTURES AND PREMISES, AND
      NONCONFORMING CHARACTERISTICS OF USE
      Sec. 4.1. Intent
      Within the districts established by this ordinance or amendments that may later be adopted there
      exist:
      (a) Lots,
      (b) Structures,
      (c) Uses of land and structures, and
      (d) Characteristics of use
      which were lawful before this ordinance was passed or amended, but which would be prohibited,
      regulated, or restricted under the terms of this ordinance or future amendment.

      It is the intent of this ordinance to permit these nonconformities to continue until they are removed, but not to encourage their survival. It is further the intent of this ordinance that nonconformities shall not be enlarged upon, expanded or extended; nor be used as grounds for adding other structures of uses prohibited elsewhere in the same district. This provision shall not apply to the expansion, extension or enlargement of residential structures located in residential districts which expansion, extension or enlargement may be granted by way of special-use permit.
      Nonconforming uses are declared by this ordinance to be incompatible with permitted uses in the
      districts involved. A nonconforming use of a structure, a nonconforming use of land, or a
      nonconforming use of structures and land in combination shall not be extended or enlarged after passage
      of this ordinance by attachment on a building or premises of additional signs intended to be seen from
      off the premises, or by the addition of other uses, of a nature which would be prohibited generally in the
      district involved.

      The new owner did not do his due diligence and this quarry has been running without a permit, oversight and in violation of many of the requirements of the Special Permit that was never obtained.

      No property in town can be utilized without a Certificate of Compliance and this single quarry is the only quarry in town lacking one. All the other active Earth Removal operations in N Smithfield have a Certificate of Compliance.

  3. I wouldn’t say their operations have continued without a problem. The operations have continued with many problems by flying under the radar. They’re worried about 40 people losing jobs and the family losing a revenue stream…what about the hundreds of residents that are subjected to the constant disruption and degradation of life? So no…I wouldn’t say they’ve been operating without problems…the local residents have plenty of problems with their quarry operations.

    I’d also like to share a recent article, published by ecoRI.

    https://ecori.org/frustrated-neighbors-claim-north-smithfield-quarry-allowed-to-disregard-rules/

  4. The affidavits provided to Bob Benoit that indicated blasting had taken place on the property in the 1950’s and 1960’s were in regards to a portion of the quarry that was purchased from Plat 10 Lot 1, not the land purchased in 1987 from Plat 7 Lot 4 (the 32 acres). The removal of the cease and desist in 1998 that Bob Benoit issued can be seen here: https://www.amazon.com/photos/shared/8mNI_cU0Tsu-TMNvRrdANA.RQf7hT4kdpy5Fa6X3agGLj
    Notice it states Plat 10 / Lot 1 not the 32 acres from Plat 7 / Lot 4.
    It seems the 2 cease and desist orders (1990 and 1998) are being conflated.
    The cease and desist from 1990 can be seen here: https://www.amazon.com/photos/shared/hTa5DxbbTjGyPSmzvWnHRA.DyQ-ueHLiKK2SbUQ0IelJ9
    The application for a certificate of compliance for the 32 acres was denied in 1992…
    That can be found here: https://www.amazon.com/photos/shared/AEeJOSo5Ra6B93Fr3PsDsQ.3kTS4AF8lTNPrPgFgLaQNz

    • Thank you for your dilligence Mr. Richer. I hope that justice will be correctly served. Trucks, constant traffic hiccups, the blatent environmental disregard and more importantly the utter disregard for public health of thy neighbors. The fugitive dust, the noise, blasting and constant disruption of peace & enjoyment of abutting private property must be utterly disheartening. This company expanded the non-conforming use onto abutting lands that are not afforded the same land use priveledge, nor an exception to issue license for an otherwise regulated land use activity that is designed to be phased out. Good luck.

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