Fitzwilliam selectmen will not appeal local quarry ruling to the N.H. Supreme Court

FITZWILLIAM — Selectmen will not appeal a court order banning the town from regulating a plan to reopen a quarry that’s a stone’s throw from people’s homes.
And they aren’t saying how or why they reached their decision Monday night.

“Ultimately the board thought it was in the best interest of the town not to appeal to the (N.H.) Supreme Court,” town attorney Steven Whitley said Tuesday. “As far as how it got to that decision, I unfortunately can’t divulge the underlying legal strategy.”

Cheshire County Superior Court Judge John C. Kissinger Jr. ruled last month that Aaron E. Olson of Rindge doesn’t need town officials’ approval to mine the Webb Hill Quarry his company owns. Rather, only state land use officials need give KMO Associates LLC the OK to mine granite from the 121-acre property, according to Kissinger.

The long-dormant quarry is nestled in the heart of Fitzwilliam’s residential district, between Webb Hill Road and East Lake Road. It is about a half-mile from Laurel Lake, which residents fear could be among the natural resources at risk should KMO be allowed to mine. Residents say mining will threaten Fitzwilliam’s water quality, and bring noise, dust and heavy truck traffic.

KMO filed a civil lawsuit against Fitzwilliam in May 2013, claiming the company doesn’t need to file a mining application with the town because New Hampshire mining laws supersede Fitzwilliam’s zoning ordinances.

Town officials disagreed. They said KMO prematurely sought the court’s assistance in its efforts to remove granite from Webb Hill Quarry.

KMO never filed a site plan application with the town, so Fitzwilliam officials could not make a decision in the matter, and, therefore, never acted unlawfully to prevent KMO from using its property, town officials maintained in court documents.

Kissinger sided with KMO. The town, though, is not prohibited from taking part in the state regulatory process, he ruled.

The March order is a win for Olson and KMO, whose efforts to change Fitzwilliam’s zoning ordinances overwhelmingly failed at town meeting in March 2013.

KMO’s petition warrant article sought to make quarry reclamation — which it defined as taking already-cut stone — a new and permitted use in the town’s residential district, but it failed in a 455-129 vote.

Voters spoke loud and clear when they defeated the warrant article, abutter Wesley C. Whitham said Tuesday. But now, the selectmen are going against the wishes of the townspeople by not appealing Kissinger’s ruling, he said.

“I think the decisions of our selectmen are really in question. We want the selectmen to fight for our zoning.”

Whitham was among the residents who circulated a petition over the weekend, calling upon selectmen to appeal Kissinger’s order. The petition was created by the Concerned Citizens of Fitzwilliam, a group of residents that formed last year in response to KMO’s interest in reopening the quarry.

About 42 people signed the petition at his request, but additional copies are still out there, Whitham said.

The petition reads: “In order to protect the health and welfare of the people of Fitzwilliam and the integrity of our community, we the undersigned request that the Board of Selectmen appeal the recent court decision regarding the reopening of the Webb Quarry.”

Whitham presented the petition to selectmen at their meeting Monday. The meeting provided a second chance for residents to speak to Kissinger’s order; the first meeting was held April 14.

Members of the town’s planning board also requested a joint session with selectmen Monday to seek clarification on various aspects of Kissinger’s order, including his interpretation of the state mining law, Vice Chairman Macreay J. Landy said. Landy said Kissinger’s decision could nullify town zoning laws about mining and excavation on the books.

“The planning board wanted (selectmen) to appeal,” Landy said. “The ruling ties the hands of Fitzwilliam in terms of enforcing any of our local regulations that might pertain to quarrying.”

Landy said he’s disappointed in the outcome of the case, but it’s hard to understand what went wrong and where the town goes from here.

“I think we’re afraid it opens Pandora’s box,” he said.

However, selectmen believe the lawsuit has reached its conclusion and will not appeal to the state’s highest court, Whitley said.

“The town was disappointed by the decision. The town felt that it had made very sound arguments, but the court was not persuaded,” he said. “The town is not happy about the court’s decision, but we’ll abide by it and honor it.”

The selectmen’s decision to stop the fight has angered some residents and left them with unanswered questions.

Resident Coni Porter said she’s bewildered that the selectmen aren’t fighting the lower court’s ruling.

“I’m appalled and very disturbed that the selectmen are going to let this pass without appealing, or at least asking for clarification. It seems that the town’s lawyers are just laying down,” Porter said. “I can’t help but think, ‘Do the selectmen know something we don’t know?’ ”

Porter is a graphic designer and artist who owns and operates a home business. She said she’s concerned about what the future may hold for her property and that of others near the quarry if it’s mined.

Selectmen declined to comment about their decision Tuesday, referring all questions to the town’s attorney.

What happens now depends in large part on how KMO decides to proceed and what it envisions for its property, Whitley said.

KMO’s attorney, Thomas R. Hanna of Keene, said in an interview last week that KMO will apply for a state mining permit to reopen Webb Hill Quarry.

Alyssa Dandrea can be reached at 352-1234,
extension 1435, or adandrea@keenesentinel.com. Follow her on Twitter
@ADandreaKS.