Local review in land use is 1st step
There’s no guarantee when you buy a property, you’ll be able to do the things you want to do with it. That is, unless you already have approval from your local land use board. And nowhere is this more true than rural Southern New Hampshire, where residents prize their peaceful, bucolic settings. So when KMO Associates, LLC, headed by Rindge resident Aaron E. Olson, began preliminary talks with Fitzwilliam town officials in 2012 seeking to reopen Webb Hill Quarry, we felt sure there would be some resistance.
The quarry, located between the residential areas of Webb Hill Road and East Lake Road, was commercially active up until the 1930s. In response to proposals to start up commercial activities there once again, abutters have expressed concern about traffic, noise, impacts on property values and the environment, as well as the financial stability of KMO. The Massachusetts-based investment firm has been named in two pending lawsuits that allege fraudulent investment activity on the part of Olson, involving millions of dollars.
Interestingly, KMO has yet to file a formal application with the town. Instead, a petition warrant article was filed this past Town Meeting season, asking the town’s voters to amend the zoning ordinance to allow the collection, transportation and sale of previously quarried granite in the town’s rural and residential district. (Fitzwilliam’s zoning ordinance currently allows excavation of 10,000 cubic yards or less a year by special exception.) Voters overwhelmingly rejected Olson’s petition, 455 to 129.
Now, KMO has filed a civil suit against Fitzwilliam, arguing the town has closed all avenues for the removal of dimension stone previously quarried, as well the restart of commercial mining. The petition asks the Cheshire County Superior Court to direct Fitzwilliam to allow for the commercial removal of stone and mining at Webb Hill Quarry or, in the alternative, to award damages for the financial loss incurred in not being permitted to profit from the property’s natural resources.
The suit alleges the town prevented previous owners from using the granite at the site for construction purposes, and that the town’s unwillingness to allow commercial activities at the site — zoned rural and residential — contradicts state law, which allows mining activity with a state permit. But, according to Bill Carpenter of the N.H. Department of Resources and Economic Development, the state permitting process is preceded by town approval, something for which KMO has yet to apply.
KMO’s suit also points to the fact that in 2012 two town officials, a married couple, were opposed to the reopening of the quarry. Terry Silverman, then chair of the Planning Board, recused himself from reviewing the matter in preliminary discussions between Olson and the town’s land use board. His wife, Susan Silverman, a Select Board member, and he spoke against KMO’s Webb Hill Quarry plans. Terry Silverman even participated in the Planning Board’s review of the proposed zoning amendment that would have allowed Olson to commercially remove granite from Webb Hill Quarry, according to KMO’s lawsuit. The board did not recommend the petition article to voters.
It’s important for town officials to recuse themselves on matters in which there is a personal interest, but they aren’t required to give up their personal opinions or their votes.
It is difficult to see the town acting in the wrong, when no application has gone before the land use boards as yet. Regardless of what was said in preliminary discussions or in previous attempts to reopen the quarry, procedure demands giving town officials first review and deliberation on a matter within its jurisdiction.