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Tuesday, July 16, 2013

Sleep walking in Charlestown

Another Chapter of the Whalerock Saga on Wednesday

Yes, I know I've used this squirrel before. But it's the best
visual I can find to depict this whole Whalerock mess
By Will Collette

On Wednesday, July 17, at the Charlestown Elementary School, the Zoning Board of Review (ZBR) is scheduled to hold Hearing #5[1] in its long-running series on the application for a Special Use permit by developer Larry LeBlanc for his proposed Whalerock wind turbine project. 

The hearing is set to run for a marathon four hours, from 6:30 PM to 10:30. The seats in the school auditorium are wicked hard, so bring a cushion and some No-Doz® if you intend to be there.

I don’t. This latest round in the never-ending Whalerock fight is, for all practical purposes, over. It was over from the start when ZBR Chair Mike Rzewuski and ZBR member Ron Crosson made it clear that “screw fairness and impartiality – we’re voting NO[2].” Since Whalerock must either get a unanimous vote or a 4 to 1 vote, these two members declared partisanship means there is no way Whalerock will get ZBR approval. They might as well just take a vote and get this over with.

Unless Charlestown’s “Plan B” kicks in, and the town moves seriously and deliberately toward buying the LeBlanc property for open space, LeBlanc will take the ZBR’s negative decision back to RI Superior Court for a third round of litigation. Given that the Zoning Board is a quasi-judicial body where the members must act in a fair and impartial manner, LeBlanc seems to have a pretty good case in court, especially given how he did in Rounds one and two.

The Town Lost Rounds One and Two, Badly

ZBR Chair Mike Rzewuski ignored his oath to be fair
and impartial and has failed to maintain order, factors
that could hurt Charlestown if this goes back to court
The first round of litigation was a draw – Judge Judith Savage threw out all of the lawsuits (the town’s, the neighbors’ and LeBlanc’s). The second round was a clean sweep for LeBlanc – he won and the town and the neighbors suffered a stinging defeat. 

Judge Kristin Rodgers ordered the Whalerock case remanded to the ZBR, which had earlier voted 4 to 1 in Whalerock’s favor. She ruled the town didn’t even have standing to be involved in the case.

But this time around, the neighbors and the town decided to turn up the heat on the ZBR members from even before the opening of the first hearing. The result is a clearly intimidated ZBR. 

Chair Rzewuski is so flustered that he is making one major error after another. He lost control of the hearing room from Day One. 

ZBR Member Ron Crosson, who voted for Whalerock the first time, is now even giving anti-Whalerock testimony from behind the ZBR podium.

ZBR member Ron Crosson not only ignored his oath to be fair and 
impartial but even gave testimony against Whalerock - as a seated 
ZBR member! - on stuff he says he read on the internet. Very bad for 
Charlestown if this goes back to court.
The town has decided to ignore not one but two judges’ rulings that it does not have standing. So Charlestown has Town Solicitor Peter Ruggiero in the fray, plus the $50,000 new Special Counsel, John O. Mancini, a lawyer who usually represents developers, in these proceedings. 

Over Whalerock lawyer Nick Gorham’s repeated objections, Mancini has tried to highjack the proceedings, and with Rzewuski’s lapse of leadership, has largely succeeded.

Plus, in an unprecedented move, Mancini is also representing a group of anonymous private citizens, identified only as living in the vicinity of the site. One theory I've heard is that these anonymous clients are there as proxies, in case Charlestown fails to convince Judge Kristin Rodgers to reverse her ruling that Charlestown lacks standing to participate in the case.

Is Charlestown Paying for the Anonymous Clients?

Look, I know that the CCA Party treasures anonymity above all else. If the CCA Party had its way, they would pass an ordinance requiring everyone to wear a bag over their heads. But anonymous objectors? This is ridiculous[3] and, so far, has never been explained. The CCA Party, hypocrites that they are, would never tolerate this sort of ruse by any other town leaders but their own.

As Whalerock’s lawyer Nick Gorham protested, how is the ZBR supposed to know if Mancini’s anonymous clients have standing to be there if Mancini won’t identify them. ZBR Chair Rzewuski characteristically failed to deal with this serious procedural problem.

Then there’s the added question: who is paying Mancini to represent these anonymous clients? Gorham asserted, for the record, that it is the town that is paying for these private, anonymous clients. Neither Mancini nor Ruggiero contradicted him. If Charlestown is paying the legal bills for private citizens, that’s another unprecedented, and probably illegal, act.

Most of the speculation about the identity of this group of anonymous clients focuses on Bishop Ron Areglado’s Church of Fake Science on Partridge Run. They share responsibility with the ZBR and the Town for turning the ZBR proceedings into a zoo that will make Whalerock's appeal all the more likely to succeed.

If this ZBR process ever ends, the only real question is what the final negative vote will be. The best Whalerock can hope for is missing the required supermajority by one on a 3-2 vote. But I think most, maybe even all, of the ZBR members will vote NO or may abstain.

Town Council Boss Tom Gentz (CCA Party) said that he made the motion to leave their re-appointments hanging to ensure “continuity” in the proceedings. 

Gentz is also planning to auction off the Brooklyn Bridge at the next CCA Party fund-raiser.

An aside: it was kind of funny watching Bishop Areglado lead his flock into the Town Council chambers for the July 8 meeting. They trooped in together, sat shoulder to shoulder in the front pew and then left together in a nice orderly line. They did everything but pull out their hymn books and sing. Great choreography!

A ZBR victory, won the wrong way, could lead to a Whalerock victory

Shelter Cove Marina parking is just up the road
from Charlestown Town Beach parking
As excited as Areglado and his followers will be when they win the ZBR vote on Whalerock's special use permit application, that victory could turn out to be very fleeting.

Lately, the Zoning Board of Review has had a spate of losses in Superior Court on cases where the circumstances of its decision making were far less clearly flawed.

Just a few days ago, the town sent me a copy of Superior Court Judge Sarah Taft-Carter’s decision in Charlestown vs. Shelter Cove[4]. That case is a good example of Charlestown’s recent war on small business under the CCA Party’s leadership.

It's worth taking a close look at the Shelter Cove decision and see how a Whalerock appeal could go against the town. 

The background: shortly after the Gentz-Slattery CCA Party Town Council took office, Charlestown decided to stop Shelter Cove Marina LLC from its long-running business of selling parking spaces on its property near Charlestown Town Beach.

In July 2011, Housing Official Joe Warner issued a notice of violation to Shelter Cove charging them with illegally using their property for a commercial parking lot in violation of the town’s zoning ordinance adopted in 1998. It took 13 years for the town to "discover" that Shelter Cove was in violation of the zoning ordinance.

However, Shelter Cove had been using the land for parking before the 1998 zoning ordinance, at least back to the 1970s, and introduced evidence to prove it. Those facts were good enough to convince the ZBR that this was an existing non-conforming use and they ruled in favor of Shelter Cove.

But the town decided to challenge this ruling, suing both the Zoning Board and Shelter Cove.

Judge Taft-Carter laid out the standard for judicial review of town decisions:

The Superior Court’s review of a zoning board decision is governed by Rhode Island General Laws 1956 § 45-24-69(d), which provides:

“The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:

(1) In violation of constitutional, statutory, or ordinance provisions;
(2) In excess of the authority granted to the zoning board of review by statute or ordinance;
(3) Made upon unlawful procedure.”

In other words, the Court will not second-guess a zoning board decision unless there is mighty good reason. In the Shelter Cove case, the Court ruled that the ZBR failed to make a finding of fact that not only had Shelter Cove used its lot for commercial parking prior to the 1998 zoning ordinance, but that the parking lot was substantially unaltered over that time.

Now think about how the Whalerock case is going to look. Considering how a minor example of “unlawful procedure” led to the ZBR decision on Shelter Cove to be overturned, what will the court think of the Whalerock proceedings especially when they see the transcript and the video recordings?

Time for Plan B
Since the current Whalerock proceeding is being done after Judge Rodgers remanded it back to the ZBR in her last decision, I think this time, the court will exercise its authority to “reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions.”

I oppose the Whalerock project and am angry that the town and Areglado’s cult have pretty much screwed Charlestown with their misconduct at the ZBR hearings. I am angry at the ZBR and particularly at its chair Mike Rzewuski for gross abandonment of their oaths to act in a fair and impartial manner.

Obviously, it’s hard to predict the future. As so many witnesses in this proceeding have said, it’s impossible to give a 100% guarantee. That said, the odds are not good for Charlestown to snap its losing streak in the state courts when LeBlanc takes the impending ZBR rejection back to court. 

Therefore, I really hope Plan B (buy the 81 acres for open space) works out.

Not a constructive attitude
I’ve heard from some cynics who think the town should take a “screw Larry LeBlanc” attitude. However in this case, I doubt it will be Larry LeBlanc who gets screwed. Other cynics think Plan B is just a ploy for something else. What, I don’t know.

I think most Charlestown residents would like to see that beautiful stretch of largely unspoiled land stretching along Route One to remain unspoiled. The only way to preserve that land is to negotiate a deal with LeBlanc.

As our local US Fish and Wildlife guy Charlie Vandemoer wrote in his assessment of the land, it ties the landscape together in addition to providing critical habitat to numerous native species and shelter for migratory birds. 

That land is a good part of the reason why Charlestown’s stretch of Route One won Scenic Highway designation. Without it, it ain’t so scenic.


[1] Hearing #4 only lasted a few minutes. It was opened and then closed after ZBR Chair Mike Rzewuski muttered a few words. Click here for details.

[2] For more details on the earlier hearings, click here for Hearing #1, click here for Hearing #2 and click here for Hearing #3

[3] There is also the serious ethical issue of Mancini representing two different sets of clients on the same case who may not have identical interests. The rules for lawyers set out by the RI Supreme Court require lawyers in such instances to get the approval of both sets of clients in the form of a signed informed consent statement.