Selectman Chairman Kelly Ross (left) has taken the heat for the controversial settlement between the town and Newport Materials. On right is Planning Board Chairman Dennis Galvin who was one of two Planning Board members not to sign the settlement. PHOTO BY JOYCE PELLINO CRANE
After all the grievances were aired, all the accusations hurled, and all the angry comments spoken, the town was still left with an unwanted reality – a signed agreement that gives permission to a Nashua businessman to build an asphalt plant at 540 Groton Road and a population demanding it be negated.
A public hearing that began at 7 p.m. on Oct. 25 and ended at 1:45 a.m. on Oct. 26 drew almost 800 to Westford Academy’s Performing Arts Center. With all five selectmen and four out of five Planning Board members seated on the stage facing residents, the evening began with vitriol and ended with exhaustion.
Town officials initially faced such an angry crowd that Selectmen Chairman Kelly Ross warned of police action if the crowd became unruly. Police officers were stationed at every door.
The anger stemmed from a stunning Oct. 6 announcement from Ross that selectmen and three out of five Planning Board members had settled a six-year court battle with businessman Richard DeFelice. Of the 10 officials involved in the settlement, only Planning Board members Michael Green and Dennis Galvin refused to sign. The agreement provides for $8.5 million in asphalt cover and other amenities for the town as well as stringent operational guidelines, in exchange for permission to build an asphalt plant on almost 3 acres of a 115-acre parcel abutting the Fletcher Granite quarry.
In his letter, Ross said “continuing to pursue legal options presented a risk to the Town.” Officials said they were concerned that if the town lost in litigation, they would have no means of enforcement over DeFelice’s asphalt business activities.
On the hot seat were Ross, who as chairman of the board of selectmen, is absorbing much of the venom, as well as Town Counsel Jonathan Silverstein of Boston-based KP Law who brokered the settlement together with lawyers representing DeFelice, owner of Newport Materials, LLC, and 540 Groton Road, LLC. DeFelice was represented locally by Westford attorney Douglas Deschenes. He was also represented by Boston attorney Thomas F. Reilly, of Manion, Gaynor, and Manning. Reilly was the state’s 45th attorney general from 1999 to 2007.
The evening was split into two segments. The first part of the hearing was given to residents’ grievances that selectmen had violated the Open Meeting Law by not announcing the ongoing settlement negotiations in public notices. The last part was dedicated to health issues and enforcement. In between were discussions about traffic and mounting dirt piles DeFelice has brought to his Westford parcel.
Open Meeting Law
Silverstein denied any violation of the Open Meeting Law saying only one member of the Board of Selectmen had been present at the negotiating table and therefore the law did not apply. That official was later identified as Selectman Don Siriani. A scheduling conflict prevented a Planning Board member from also attending, said Silverstein.
The explanation fueled outrage in Alisa Nakashian-Holsberg.
“So we’re saying that because only one person from each board was present in negotiations, that the Open Meeting Law doesn’t apply?” she said. “I think Westford is an extraordinary town. If there is a new case law to be made, we’re going to make it.”
Both boards voted unanimously to respond to the large number of complaints of violations of the Open Meeting Law recently received. The movement is being led by Attorney Richard J. Yurko of Boston who is representing members of the Route 40 Clean Air Coalition, a group formed years ago to fight the asphalt plant proposal. Groton Road is part of Route 40, a strip of asphalt that runs east and west connecting Westford to Chelmsford and Groton. It is a mix of commercial, industrial and residential zoning. DeFelice filed his plant proposal in 2009. The Planning Board denied it in April 2010 and DeFelice appealed the decision in Land Court where the Honorable Alexander H. Sands, III, remanded it back to the Planning Board. In April 2015, the Planning Board again denied the proposal and DeFelice appealed again. Sands’ decision was pending when the matter was settled.
Most speakers voiced concerns that neither the behind-closed-door settlement meetings nor the public announcements of those executive sessions were transparent. Resident Wendy Welsh noted that at least one selectmen’s agenda used the word “strategy” when listing the Executive Session meeting that would take place to discuss ongoing litigation between the town and DeFelice’s companies.
“When you posted, you said ‘strategy,’” Welsh said. “You did not say ‘settlement.’ Strategy and settlement are two different words.”
Earlier Welsh referenced an audio recording received by residents through the Freedom of Information Act in which Silverstein allegedly asked the judge to approve the settlement and said residents would deny the asphalt plant if it were put to a vote.
Resident Jessica Collins directed her comment at Silverstein when she accused him of operating in “a devious manner,” asking selectmen if it was Silverstein who proposed the settlement and prompting Ross to defend him.
“Did he come to you with this option?” Collins said to Ross. “Because if he did come to you to get around us, then we don’t want him representing us.”
Reasons for a Settlement
Silverstein later offered an explanation of the considerations that led to the decision to settle, noting that Sands had indicated he would ultimately rule in favor of DeFelice’s company in a Dec 8, 2014 ruling. The information was presented in a footnote on page 33, when Sands wrote “…it is the opinion of this court that the Project would be an ideal use of Locus, given its proximity to the Fletcher quarry and Newport’s rock crushing facility, and based upon the overall industrial nature of the area…In sum, this dispute should have been resolved long before it came before this court…”
“I encourage everyone to read the court transcripts and the decision the judge rendered and see if he was acting in the best interest of the town or if I was,” said Silverstein said.
Health Concerns
Finally the discussion shifted to fears about chemical emissions to the air, groundwater and soil. Within a 2-mile radius of the location is a large residential development, a daycare center and the Rita E. Miller elementary school.
“Is there a more important responsibility than safeguarding the health and welfare of the residents?” George Turner said.
“I agree with that, but if we fought this plant I felt we would lose,” Ross said.
Board of Health member Helen Fu gave a prepared presentation. Fu said she is a board-certified naturopath doctor, a board-certified holistic nutritionist and a Chinese Herbalist.
“According to the settlement, this asphalt plant will have 40,000 tons per month production, which will release millions of pounds of toxins into the air during the production each year,” she said. “These chemicals include many cancer-causing toxic air pollutants such as arsenic, benzene, formaldehyde, cadmium, lead, volatile organic compounds, and very fine condensed particles. Asphalt fumes contain substances known to cause cancer, coughing, wheezing or shortness of breath, severe irritation of the skin, headaches, dizziness, and nausea.”
Fu said she was not representing the Board of Health in her comments.
Enforcement
In his Oct. 6 letter, Ross listed enforcement protections agreed to by DeFelice.
- Odor control measures must be in place, and failure to control odor can be penalized
by revocation of the permit
- Sound monitoring must be in place, and if mandatory sound levels are exceeded,
operations must cease
- For the duration of the plant’s operation, the 115 acre site is restricted to only three
primary uses: an asphalt plant, materials processing, and a solar field
- The entire site is limited to 200 vehicles per day for all uses
- No night operations (6:00 p.m. to 6:00 a.m.)
- Trucks with more than four wheels must turn left onto Groton Road when exiting the
site
- $200,000 will be dedicated to neighborhood mitigation
- Newport must pay for consultants retained by the town to monitor compliance with all of these conditions
But residents expressed doubts that the enforcement measures would have teeth.
“What will the air quality be outside my home?” said Carol Savoie who lives in the Nabnasset section. “How are you going to enforce these things? …If I am smelling asphalt every day for a month, is anything going to be done about this?
“If there are consistent complaints, we will be dealing with that,” said Chris Kluchman, the town’s director of land use management
Finally, as the clock ticked past midnight, Laura Burns stood at the microphone and voiced what appeared to be a universal sentiment based on the applause.
“Tell me what we can do to undo what has been done?” she said. “How can we get you to fix this?…We don’t like this and we need you to help us make it better. Make it right!”
Follow Joyce Pellino Crane on Twitter @joypellinocrane.
