Fitzwilliam / RINDGE
Owner of quarry sues town
KMO seeks access to granite
KEENE — KMO Associates LLC of Fitchburg, Mass., an investment firm owned by Aaron E. Olson of Rindge, has filed a civil lawsuit against the town of Fitzwilliam in Cheshire County Superior Court, arguing it is within the company’s right to remove previously quarried stone from its Webb Hill Quarry, without the town’s approval.
KMO filed its lawsuit, dated May 2, just days after it reached a last-minute agreement with the Select Board and chose not to pursue a rehearing of its failed petition warrant article. The article sought to make quarry reclamation a new and permitted use in Fitzwilliam’s rural/residential district. Select Board Chair Brian Doerpholz said at a board meeting in late April that KMO had filed the motion for rehearing in order to preserve its right to raise issues about quarry reclamation in Fitzwilliam, should KMO choose to take the town to court.
At Town Meeting in March, voters overwhelming shot down the petition article, 455 No votes to 129 Yes votes.
Now, Olson is asking the Superior Court to order that the removal of previously quarried granite stone from the Webb Hill Quarry is not subject to Fitzwilliam’s zoning regulations, which the suit alleges contradict New Hampshire RSA 12-E. The state statute, RSA 12-E, regulates mining and quarry reclamation — two activities that require state permitting before an applicant can proceed with a project. The suit seeks a declaratory judgment and injunction from the Superior Court that directs Fitzwilliam to permit such activity, if KMO’s proposal to remove previously quarried stone and mine is first approved by the state.
Olson’s petition article defined quarry reclamation as reclaiming grounds in and around the quarry through collecting, transporting, donating or reselling previously quarried stone. But town officials contested that definition, maintaining quarry reclamation is the restoration of a site back to the way it was before mining activities were allowed on it.
Olson’s family owns the Webb Hill Quarry located between the residential areas of Webb Hill Road and East Lake Road. The last time stone was commercially removed from the site was in the 1930s, according to town officials.
Fitzwilliam’s zoning ordinance allows excavations of 10,000 cubic yards or less annually by special exception. The town’s definition of excavation includes, but is not limited to, “sand, gravel, rock, soil or construction aggregate produced by quarrying or any other mining activity or such other naturally occurring unconsolidated materials that normally mask the bedrock, the excavation of which is not exclusively regulated by the State of New Hampshire.”
When asked by phone Monday why KMO has not applied for a special exception with the Fitzwilliam Zoning Board to remove the granite stone, KMO Attorney Thomas Hanna of Keene would not comment.
As of Friday, the town of Fitzwilliam had not yet filed a response to KMO’s lawsuit. Town Administrator Paula Thompson could not be reached for comment by press time Monday and requests to speak with a member of the Select Board were not answered.
KMO is at the center of an ongoing state investigation that has reportedly cost investors millions of dollars, and is tied to two pending lawsuits that allege Olson was running a fraudulent scheme. The Webb Hill Quarry’s abutting landowners have questioned the viability of a proposal to reopen the quarry in light of the lawsuits and the investigation into Olson’s investment-related activities. The N.H. Bureau of Securities confirmed its investigation of Olson in April 2012. Monday, Kevin Moquin, an auditor at the bureau, said that investigation is ongoing.
Since the summer of 2012, Olson and his wife, Kim Olson, have expressed an interest in reopening the Webb Hill Quarry. Despite meeting with numerous town boards and committees about their proposal to remove previously quarried stone from the quarry, the Olsons have not filed an application for a special exception with the town.
In the fall of 2012, Bill Carpenter, lands administrator for the state’s Department of Resources and Economic Development, told KMO representatives that the state would not issue the company a mining permit until the Fitzwilliam Planning Board and Zoning Board approved the project, according to the suit. Carpenter could not be reached for comment by press time Monday about the state’s permitting process or about KMO’s proposal.
According to KMO’s lawsuit brought against Fitzwilliam in May, the Webb Hill Quarry was opened in 1849 and mined until approximately 1918. KMO acquired the 121-acre lot that includes the quarry by deed of Elaine A. Olson and Arnold R. Seppala in September 2011. The suit claims that the quarry — located between the residential areas of Webb Hill Road and East Lake Road — is home to 45 million tons of granite, which is worth “many millions of dollars.”
Should KMO be forbidden to remove the granite that lies both on the ground and submerged in water at the quarry, the suit states that “the otherwise valuable dimension stone and granite deposit will be rendered valueless.”
In addition to arguing that Fitzwilliam’s zoning is not in compliance with state law, KMO alleges that 2012 Planning Board Chair Terry Silverman and his wife, then Select Board Chair Susan Silverman, opposed KMO’s quarrying interests as abutters. The couple owns property on East Lake Road in the area of the quarry.
According to the suit, “They both vociferously opposed KMO’s removal of the previously mined dimension stone on the lot and KMO’s reinstitution of mining activity at the Webb Quarry.”
Terry Silverman could not be reached for comment by press time Monday, but told the Ledger-Transcript in February that he had recused himself from the Planning Board on quarry-related matters, and that as an abutter he opposes the reopening of the Webb Hill Quarry.
The quarry is located approximately 600 feet from Webb Hill Road in Fitzwilliam, with an estimated 100 homes in the vicinity, according to Fitzwilliam town officials and abutters. Declining property values, perceived threats to nearby Laurel Lake, noise and increased traffic are just a few of residents’ concerns about the proposed project.
As KMO’s suit against the town of Fitzwilliam plays out in Cheshire County Superior Court, two civil lawsuits that allege Aaron Olson was running a fraudulent investment scam are unresolved at the Merrimack Superior Court in Concord. The Norbys of Rindge filed suit against Aaron Olson’s uncle, Eric Olson, and cousin, Ted Olson, in June 2012, alleging that they and Park Construction lost more than $15 million in their investments with KMO. A settlement could be reached next month if a “stipulation for dismissal” that was filed prematurely in March is resubmitted to the court.
The Norbys, Eric Olson and Ted Olson entered into an agreement on Feb. 20, according to court records. “Among the terms of the stipulation is a provision requiring that it be held for a period of 90 days, from the date of recording of certain mortgages, prior to submittal to the court for approval,” wrote their attorneys. The document does not specify which mortgages.
The lawsuit Eric Olson filed against his nephew is scheduled for trial in February 2014. Eric Olson had requested that the court consolidate his lawsuit with the one filed by Park Construction, for the purposes of hearing the two cases together. The court granted the request for consolidation in November 2012.
Alyssa Dandrea can be reached at 924-7172 ext. 228 or firstname.lastname@example.org. She’s on Twitter at @alyssadandrea.