Ledyard quarry attorney alleges conspiracy against his client

Ledyard — Gales Ferry Intermodal LLC attorney Harry Heller accused town land use personnel of violating his client's civil rights and engaging in a conspiracy against GFI's quarry application as both sides wrapped up their months-long arguments Thursday before the Planning & Zoning Commission. A final decision on the project is expected no later than February. Heller, who said he received new information just a week ago through a Freedom of Information Act request, read into the record a series of emails between members of the public and members or former members of the commission as well as former Town Planner Juliet Hodge. He argued the emails indicated a conspiracy to block the quarry planned at the former Dow Chemical site off Route 12 now owned by GFI, a division of Cashman Dredging & Marine Contracting Co. of Quincy, Mass. "There was a conspiracy going on between staff and the opposition with at least the knowledge and some level of participation by this commission's chairman," Heller said, though it was unclear if he was referring to current Chairman Marty Wood or recently departed Chairman Tony Capon, both of whom were recipients of emails read by Heller. "The totality of what has been happening in the administration of this application, with the assistance of the staff of this commission, renders it impossible in the applicant's perspective to receive a fair and unbiased adjudication of its application." Heller said these communications, some of which referenced private meetings between quarry opponents and Hodge, were not made part of the public record, as they should have been. "I have no knowledge of any illegal conduct or unethical conduct by any commission member who is sitting here this evening, but if you have engaged in any of the conduct that I have referenced, I would ask you to recuse yourself," Heller said. The issue of recusal is expected to be a topic of conversation when the commission meets at 6 p.m. Thursday, Jan. 23, at Ledyard Middle School for the first of what could be a series of meetings to decide whether the proposed 40-acre quarry that will include the removal of parts of historic Mount Decatur should be approved. The commission has until Feb. 22 to make a final decision. A Jan. 9 meeting to be held at the City Hall annex will not involve any deliberations on the quarry application, according to Liz Burdick, director of land use and planning. Heller, with about 100 people looking on in person and on Zoom, also accused Zoning Board of Appeals member Eric Treaster, another vocal quarry opponent, of violating a rule that prohibits a board member of an agency from speaking on behalf of anyone but himself. As a member of the Citizens Alliance for Land Use, which has also helped organize quarry opposition at Gales Ferry Fire District meetings, Heller argued that Treaster had been representing these two organizations by his actions, and therefore his testimony should be stricken from the record. Wilson Carroll, an attorney representing the Gales Ferry Fire District that also opposes the quarry, said after the more than four-hour hearing Thursday ended that he believed Heller was reading the emails into the record to sow the basis for a possible appeal if the commission denies the application. He noted that most of the communications referenced involved land use personnel who are not part of deliberations on the quarry. Carroll, in his one-hour summation of arguments against the quarry, said the town no longer allows such operations and that the approval of a special permit for a Baldwin Hill quarry earlier this year was was granted because it existed before zoning laws and therefore was grandfathered in. "(You) could not have legally denied the application," Carroll said. But he argued that the GFI application is a different case, as it would be an entirely new operation and must comply with current zoning regulations. Carroll said regulations require that dust from a quarry not be just mitigated but should be eliminated entirely, which GFI had not shown. Similarly with noise and vibration, he said the applicant could not prove that neighbors will not be affected by the blasting and drilling that is expected to last for up to 10 years. In addition, Carroll argued that "the application is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state. … There is substantial evidence in the record regarding the environmental effects of this application." Carroll pointed to expert testimony that indicated the project would result in stormwater runoff likely to send pollutants into wetlands on the site as well as the nearby Thames River. He also cited testimony from local real estate agent Joanne Kelly indicating the likelihood the project would lower real estate values and forever change the character of the neighborhood. Carroll also urged, if it does deny the permit, that the commission include as many defensible reasons as possible so that if the decision is appealed it is not reliant on just one of several reasons he enumerated for rejection. "This is a historic moment for Gales Ferry and the town of Ledyard," he concluded. Heller, unable to approach the lectern because he has been on crutches for the past several meetings, voiced his position that the quarry is an approved use under regulations and that GFI had addressed all of the public's concerns and had provided all the details required to win approval of the application. Responding to Carroll's pointing out that both company owner Jay Cashman and a GFI employee had called the project a quarry at the last meeting even though the application is for an "excavation major," Heller said "I don't care whether you call it a quarry, a mine or an excavation major, excavation major is the activity authorized as a specially permitted use in your regulations." Heller spent most of his three hour and 15 minute testimony answering questions that the commission had posed to him last week. Among the points he made, in consultation with experts, was that radon on the site would be more likely to be found near the surface of the site rather than deep underground and he expected the project to require two to three barge trips a week to transport aggregate created from quarrying operations. He said GFI is also committed to turning over a 3.4-acre site that contains the remnants of a War of 1812 fort for historic preservation and plans to turn over another nearly 6-acre section if the application is approved. Heller also downplayed the quarry's effect on traffic, saying the limitation of 50 round trips a day from the site should not be noticeable to local residents. However, Superintendent of Schools Jason S. Hartling sent a letter to the commission Dec. 11 urging the commission to weigh the "potential impacts on air quality, noise levels, and other effects from blasting and excavation activities" before approving the application. Heller pointed to town regulations that encourage new businesses in town with increased employment opportunities. "Beauty is in the eye of the beholder," he said. "Clearly, in the Plan of Conservation and Development there is ample support for the activities that are proposed in this application. … The end result of this application is going to be to create clean, level, developable land uniquely situated in your municipality." Heller concluded by pointing out the up to 250 residents who have regularly attended meetings over the past few months in person and on Zoom, concerned about silica dust destroying their health, noise and blasting disturbing their lives and traffic and quarrying affecting their way of life, most of whom have told the commission they don't want a new rock excavation business in town. "You have been implored throughout these public hearings by residents of your community to protect them and to protect their rights and their homes," he said. "I'm going to leave you with a different final thought. … Our client Gales Ferry Intermodal is just as entitled to the protection of these regulations as every other property owner in your community." l.howard@theday.com