Planning Commission decides NOT to change proposed mining law, even though they admit it NEEDS changes

Let the Town Council do it. Riiiiiight.

By Will Collette

The mother of all quarry blasts. Ordinance #362 will prohibit
mine blasting in Charlestown

The Charlestown Planning Commission voted unanimously to send its  Ordinance #362 on to the Town Council for consideration even though they acknowledge it is full of defects and omissions.

That's a shame because Ordinance #362 is actually a pretty good step forward to deal with the problem that quarries and sand & gravel pits are largely unregulated in town. The town’s landscape is dotted with dangerous inactive and abandoned sites that are the legacy of years of allowing such businesses to operate without the requirement that they reclaim the land.

I wrote a detailed analysis of  Ordinance #362 earlier (click here to read) where I praised significant portions of the draft but also noted that this draft contained several significant flaws and omissions.

At its January 22 meeting, the Planning Commission heard from neighbors of our most notorious local site, the Copar Quarry in Bradford. The people who spoke at the meeting live on the Charlestown side of Route 216. 

Copar's OTHER quarry which IS in Charlestown, right off Route 91.

They acknowledged that Ordinance #362 will not change Copar’s conduct at the Bradford site, since it’s over the town line in Westerly. However, they pleaded with the Planning Commission to pass the best possible ordinance in the hope that it would become a model they could push Westerly into adopting.

They raised the same concerns I did as well as a few more based on their own experiences. Sue Clayton focused in on the absence of a “bad actor” provision in the Charlestown draft that would block permits to operators with bad track records. This provision, called a “permit block” against bad applicants, is a key provision in the federal coal mining law and has been in use for 35 years. If it had been in place in Charlestown, it would have prevented Copar from obtaining a license to run the former Morrone site on Route 91.

The "permit block" is not a difficult concept to understand - George Tremblay's bewilderment notwithstanding. It means that you don't give permits to criminals to commit more crimes. The broader concept of a "bad actor" law extends this principle to contracts. A good bad actor law inhibits government from doing business with known law-breakers. Is that so hard? 

Stephanie Williamson seconded Sue Clayton’s point about the need for a bad actor provision and also critiqued the draft’s flawed approach to mine reclamation. The draft calls for mine operators to submit a reclamation plan nine months before the operator plans to close. Ms. Williamson noted that this is too late, that a mine operator who plans to close will probably just close and never submit a plan to restore the land, never mind actually reclaim the land.

The federal coal mining law requires mine operations to submit their reclamation plan as part of their permit application plan. I could find no rational reason or working precedent to support Charlestown’s  decision to delay reclamation plans the way they do in this ordinance. It makes no sense not to have a reclamation plan in hand before issuing a permit.

Neil Williamson went into more detail about things the ordinance should require before, during and after mining operations to protect water resources. He said there should be extensive baseline data on ground and surface water as part of the application, and an array of monitoring wells surrounding the site as well as inside, to monitor pollution.

He also suggested that detail should be added to the requirements for a restoration plan that prohibits the use of anything other than clean fill or stored original material. No refrigerators. No out of state trash or garbage. No road or construction rubble. In other words, prohibit the use of an inactive site as a de facto landfill.

Planning Commissar Platner admits the ordinance is full
of holes but wants to send it to the Town Council anyway

Planning Commissar Ruth Platner said she liked just about all of these suggestions and felt them worthy for inclusion in the ordinance. 

Except not now and not by her Commission. 

Instead, Platner insisted that now is the time for the Planning Commission to forward the draft Ordinance #362 on to the Town Council, even knowing it was loaded with flaws and omissions.

Her reasoning: the Council can hold workshops or public hearings to draw more people and more comments, as if it was impossible for the Planning Commission to do that. She was concerned that there had not been enough business input on the draft. 

I was pretty amazed to hear this, as it might be the first time ever that Platner expressed concern about what affected businesses might feel about an ordinance coming out of her commission. What a fine time for Ruth to have a “come to Jesus” moment. And on this subject, too.

Town Council member George Tremblay, who was a member of the Planning Commission until getting elected to the Town Council on the CCA Party ticket, had a lot of comments. As Council liaison to Planning, he serves for all practical purposes as a de facto sixth Planning Commissioner.

Planning Commission member Connie Baker (CCA)
spouts contradictory Tea Party views

Tremblay had a curious take on  Ordinance #362 where, on the one hand, he agreed with the observation that the ordinance is flawed not strict enough, but on the other hand, he is concerned about the effect the ordinance will have on existing mining operations in town.

He circulated a memo he wrote that day to the Commission members detailing his concerns – I will report on that memo when I get my hands on it.

Commissioner Connie Baker who is another CCA Party pick also expressed somewhat schizophrenic views – she thinks Copar is bad and should be hammered, but she thinks the government over-regulates businesses. Somehow, she seems able to reconcile these contradicting points of view. But then as a Tea Party follower, I guess holding contradicting principles is easy.

One concern I had raised in my analysis of Ordinance #362 was answered in the discussion. I noted that the ordinance seemed to require two different types of bonds – one to cover general operations that had to be submitted with the operator’s application. The other was a bond to ensure that proper reclamation was done, but that bond would not be due until the operator submitted a restoration plan nine months before closure.

As it turns out, the bonds are actually one and the same. The surety that must be submitted with the application later becomes the guarantee that proper reclamation is done. So that’s good, if intend that is what the less-than-clear language of the ordinance really means.

 Ordinance #362 also requires existing operators to apply for a temporary permit within three months, another three months for the town to approve it and then 18 months to operate under the temporary permit. I had wondered if mines operating during this period would have to obey the environmental standards set out in the ordinance. The answer is NO, and that leaves the question open whether it is right for Charlestown to allow a site to run unregulated for up to two years. I argued in my analysis that this was too damned long.

Several Commissioners and Council liaison (and de facto Commissioner) George Tremblay argued with Platner over whether  Ordinance #362 should be sent to the Council as is, or whether to fix these obvious flaws now.

Platner was adamant that it was time to pass the buck to the Council, even with the knowledge that the ordinance was flawed. She called on Interim Town Planner Jane Weidman for back-up and Weidman was equally adamant that  Ordinance #362 was “good to go.” Her main reason: she was sick of working on it, saying that she had logged a lot of hours on it since October.

Weidman’s remarks swung the Commission back in Platner’s favor and she won the motion to forward  Ordinance #362, flaws and all, to the Town Council along with a cover memo that listed all of the issues and problems the Planning Commission failed to address.

So the can has been kicked down the road. The Planning Commission feels the Town Council should hold a workshop or two to get more input, even before advertising for a public hearing, which should take at least three months. Since  Ordinance #362 is loaded with flaws and omissions, the Town Council will almost certainly send the ordinance back to Planning for a re-write.

The wildcard is the upcoming expiration of the Town Council’s moratorium on new mining operations. That moratorium expires in April. Now, it would be easy for the Council to simply extend the moratorium so there is enough time to pass a clean ordinance. But they could also enact the flawed  Ordinance #362 because its first section turns the temporary moratorium on new mining into a permanent ban and then promise to fix all the mistakes.

Later. Much later.

I’ve seen them do this before: adopt a flawed ordinance with instructions to Planning to work out changes to that ordinance. Those changes may or may not ever happen. They will certainly take a long time. 

And in this case, the ordinance flaws concern the process for existing operations to go about getting a mining permit for the first time. Once that process starts, it will be under the flawed provisions of  Ordinance #362 and would probably be unaffected by any changes Planning comes up with several months down the road. If the Council passed the flawed ordinance and I had an existing quarry or sand & gravel pit in Charlestown, I would apply for a permit right away so that I could simply ignore any changes that might be made to the ordinance later.

But maybe that’s what Platner really has in mind – to get an ordinance passed that is riddled with loopholes. The question I can’t answer is “why?” Why is Platner content to send a flawed ordinance on such an important issue on to the Council instead of taking care of business in the Planning Commission? 

In other business….

I apologize to Progressive Charlestown readers for this tardy report on the Commission’s January 22 meeting. Part of the problem was the eruption of more ClerkBase problems that meant the recording of the meeting was not on-line until after I complained about it. ClerkBase is still twitchy – I had to use the backdoor “fix” once again to watch the video on my computer. Click here to see my report on problems with the town’s $20,000 recording system and suggestions for how to work around those problems.

The discussion of Ordinance #362 on mining was actually the last major item of business at the January 22 meeting and didn’t occur until almost two hours into the session.

Before that discussion occurred, almost two hours was devoted to nitpicking the proposal of Arrowhead Dental for a major expansion of its operation on Route Two. 

As almost every Charlestown resident knows, Arrowhead is one of the town’s largest businesses and employs dozens of staff. Their existing building is large, but according to Dr. Bruce Gouin, it is still too small for a business that is still growing.

His expansion would almost double the size of the building and would allow space to add as many as ten more procedure rooms, space for specialists to come in to offer services that Arrowhead patients are currently sent out to get on referral. Dr. Gouin hopes to make Arrowhead a one-stop comprehensive dental practice.

But the pressing need Dr. Gouin wants to address is the cramped and unpleasant quarters used by Arrowhead’s administrative staff. He wants to not only give them more space, but also allow them to work in spaces that have windows.

Despite the accolades heaped on Arrowhead, including Charlestown’s Local Hero award, “big is bad” in Charlestown. Planning Commissioners expressed barely muted horror at the idea of such a large structure and proceeded to do what they do best – they tried to nitpick the proposal to death. I heard so much about gables, dormers, trim, siding, windows, the number of lights, the kinds of light bulbs, etc., I wanted to scream.

Planning Commissioner Gordon
Foer (CCA)- frustrated designer?

Commissioner Gordon Foer seemed particularly inspired to come up with all manner of fantastic changes to the design to achieve some architectural magic of making a large structure seem small. I could almost hear the cash register dinging as Foer suggested one expensive design modification after another. Not that any one of those ideas was terrible, but the cumulative weight of all these friendly, helpful “suggestions” coming from Commission who have the power to spike this project seemed to me to be almost too much to bear.

Dr. Gouin will have to get together with his team and go over all this stuff and try to figure out what they can do to win the Commission’s approval. They will have to come back and go through the process again. When that happens, I predict there will be an even longer list of little things the Commissioners want to see changed.

I recently reported on the first time in anyone’s memory that Ruth Platner lost a vote from her Commissioners. This was on the three-home Sachem Woods II project, being proposed by well-known local surveyor Donald Jackson who owns the property. Jackson’s project offered some unique features that would have been good for the environment but would have required some flexibility on the town’s part. He noted that if he was required to strictly comply with the zoning ordinance, he would be forced to come back with a four-lot project and the need for a town road, rather than three lots and no town road.

Flexibility is not in Ruth Platner’s vocabulary, unless of course, it applies to one of her friends. So she tried to talk it to death, but when it came time for an up or down vote on Jackson’s proposition, she lost 3 to 2.

But in a surprise move, rather than continue the discussion about Sachem Woods II, Platner noted that Mr. Jackson notified the town, though not by formal letter, that he was withdrawing the application for the eco-friendly three-lot proposal and would be coming back with the four-lot alternative plan.

I’m assuming there’s an interesting back story to why this went down this way. When I get it, I’ll report it to you.