Court sides with town in decades old dispute over mining, earth removal in North Smithfield

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NORTH SMITHFIELD – In a victory for both the town and a citizen watchdog who shed light on the issue last year, a Rhode Island Superior Court judge ruled this week that Material Sand & Stone must go before the town Zoning Board to apply for a permit and variance for its ongoing mining operations.

Associate Justice Daniel Procaccini ruled in favor of the town in Pound Hill Realty v. the Town of North Smithfield, marking the latest chapter in a land use dispute that began in the 1990s. In a decision filed on Tuesday, Dec. 12, Procaccini denied the business’s request for a summary judgement to prevent the town from enforcing its zoning, earth removal and road use ordinances, while granting the town’s request for oversight.

“After two decades of relative peace between the parties, the issue is once again before the court to decide whether it should maintain the status quo by upholding previous court orders or remove judicial restrictions and allow the town to enforce its road use and land use ordinances,” the decision explained.

The ruling addresses Material Sand & Stone’s activities on an 89-acre lot by Pine Hill and Old Oxford Roads, where a quarry has been in operation since the late 1950s, when Carmine and Emma Pezza first purchased land. The earth extraction company has remained in the Pezza family, operating under the name “Material Sand & Stone,” since 1985, “to excavate, wash, screen, sell, and deal in gravel and sand, and to engage in the manufacture, distribution and sale of sand and crushed stone products,” according to articles of incorporation filed with the Secretary of State.

This week’s 19-page Superior Court decision recounts history of the company’s dispute with the town, which began after the Pezzas purchased a second lot but, “did not apply for an earth removal permit, zoning change, or use variance.”

“However, Plaintiff began blasting and excavating the new lot once it was purchased,” notes the decision.

Former Town Building Inspector Robert Benoit first issued a cease and desist letter regarding activity on the Pezza’s newer lot in 1998. Legal wrangling ensued, and three years passed before Benoit issued a second order in 2004. The issue has twice gone before the courts – in 2001 and 2006 – with rulings in favor of the business, granting temporary holds on the town’s enforcement efforts.

In 2022, two citizens, including resident Jason Richer, complained to the town about the quarry’s activities. Richer also discussed the issue with NRI NOW that August, questioning the town’s enforcement efforts. Building and Zoning Official Lawrence Enright, however, explained to Richer that the issues had been settled by court orders.

But as a result of the complaints, the owners of the gravel extraction business renewed litigation, attempting to finalize the prior court orders, which it had relied on for continued operations since 2006.

The attempt, it seems, essentially backfired. Procacinni’s ruling on the request found that, “This court cannot usurp the administrative duties of a municipality or provide a blanket exclusion to select individuals or businesses from ordinances or the process of applying for variances.”

Granting the business’s request, he noted, would result in permanent immunity from town oversight regarding entire sections of the town’s ordinances.

“In the current case, plaintiff did not attempt to finalize the court orders until citizens complained about its land use and road use over fifteen years after the last court order,” Procacinni notes.

The judge did recognize the company’s role as “responsible corporate citizens cognizant of their neighbors,” noting that Material Sand & Stone has funded town road repair, invests in expensive equipment for its operations, employs more than 40 people, and engages in contracts with third parties.

Still, the business, “has not exhausted administrative remedies,” as required by the court prior to judicial intervention.

For now, Procacinni said, mining and road use can continue to prevent economic harm, with the status quo maintained. But Material Sand must apply for a new road use permit and use variance before the town’s Zoning Board.

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11 COMMENTS

  1. Seriously? Can you spell c o r r u p t i o n ???
    This is Rhode Island. You want results? Take your complaint to federal court. And other RI jurisdictions are even worse.

  2. I’d like to know how a property with no history of any building permits got very large concrete structures built upon their property. One was a base for the processor. The other was a concrete structure to support the large truck weigh scale and a third slab was poured for the building that acts as a “weigh house” for the scale back in 2011 -2012. To make matters worse, the property has no history of ever having a certificate of compliance. Even if they had one, when they erected the processing plant and started to crush, manufacture and sell stone products from the RA-65 property around 2014, it changed the scope of the operation there. Another Certificate of Compliance was needed for this change in scope. None was sought. Any previous Certificate of Compliance or grandfathering was made null and void, as a Cert of Compliance only remains effective if the operation remains the same. The increased and expanded the quarry’s capabilities. Since when are sales allowed in a residential zone without a permit?
    The sale of the property removed the non-complying status of the property in 2012 when the property sold for $1,276,000.
    Also, how did the electrical inspector provide an electrical permit this year to a property with no Certificate of Compliance. A COC is a prerequisite for any mechanical or building permits.
    I have video of the processor running on the new electrical service BEFORE it was even inspected. Nothing should have been powered up until it was inspected, approved and tagged. Instead, it was inspected some time later. That permit should never have been approved nor the upgrading of equipment done when the whole process was in litigation.

    There’s some interesting reading in the case of GRANITE ASPHALT CORP., v. : C.A. No. 99-6130
    ZONING BOARD OF REVIEW OF
    THE TOWN OF JOHNSTON
    https://www.courts.ri.gov/Courts/DecisionsOrders/99-6130.pdf

    Lots of similarities…..

    From N Smithfield Zoning Regs:

    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.
    (c) The zoning inspector, upon receipt of application for renewal of an earth removal license, shall
    make a field inspection of such earth removal activities to determine compliance with plans on file. His written findings shall be sent to the town council with his determination of compliance or noncompliance. The town council shall thereafter issue the license for another year upon determination of compliance by the zoning inspector; upon the determination of noncompliance by the zoning inspector, the license shall not be reissued
    until compliance with this article.
    (d) In granting or reissuing a license hereunder, the town council may impose such other additional, reasonable conditions specifically designed to safeguard the neighborhood and the town, which may include 11-19 conditions as to the overall operations set forth in this article and as relating to the site plan and restoration plan requirements.
    (Ord. of 6-18-79)
    Sec. 11-38. Appeals.
    Appeals from the decisions of the town council or zoning board of review shall be taken in the same manner as appeals from decisions of the zoning board of review as set forth in Title 45, Chapter 24, Section 20 of the General Laws of Rhode Island 1956, entitled “Zoning Ordinances,” as amended.
    (Ord. of 6-18-79)
    Sec. 11-39. Revocation of license.
    Any license issued under the authority of this article by the town council may be revoked for violations of any of the provisions hereof after notice and a public hearing. The town council shall fix a reasonable time for the hearing on revocation, give public notice thereof at least two weeks prior to the date of hearing, as well as due notice to the party in interest, by certified mail, return receipt requested, and decide the same within a reasonable time, which decision shall be in writing and contain appropriate findings of fact. Upon hearing, any
    party may appear in person or by agent or by attorney.
    (Ord. of 6-18-79)
    Sec. 11-40. Enforcement provisions.
    (a) Penalty for violations. Any person, firm or corporation violating any of the provisions of this article shall be subject to a fine as a penalty not exceeding $100.00 for each offense; each and every violation and nonconformance of this article, or each day that any provision shall have been violated, shall be construed as a separate and distinct violation thereof. All such fines shall inure to the benefit of the town.
    (b) Suit. Suit may be brought in the superior court in the name of the town to restrain any violation
    of or compel compliance with the provisions of this article.
    (Ord. of 6-18-79)
    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;
    11-20
    (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)

  3. Thank you Jason for your persistence in this matter. Obviously, Mr. Enright was very wrong to assume that this was a settled matter. Hopefully, more diligence will prevail regarding further land use and water enforcement efforts on the part of town officials.

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