Judge calls for second new hearing on St. Francis House

Judge calls for second new hearing on St. Francis House

City Council members defend appointments to Zoning Board of Review

WOONSOCKET - Rhode Island Superior Court Judge Daniel A. Procaccini did not hold back his criticism last January when he questioned why the city would fight to have Zoning Board member Allen Rivers sit in on the hearing for St. Francis House, despite the perceived conflict of interest.

This time, the language in his decision was downright harsh.

Saying Rivers' "arrogant and offensive conduct is repugnant to the fundamental principle of judicial impartiality," Procaccini ruled this week that Fernandes should receive another new hearing on his application for a variance on the numbers of units allowed in the building at 167 Blackstone St.

"At the heart of this matter is the bedrock principle upon which all judicial and quasi- judicial decision-making rests: impartiality, - a defining feature of the judicial role dating back to antiquity," the decision said.

The case stems from the board's repeated decision not to allow Fernandes a variance on the number of units allowed at the former St. Francis House: a 22,300 square-foot building that once served as an assisted living facility with more than 60 residents. Fernandes can create just nine apartments in the building under current zoning law, and the board has rejected applications appealing for more units four times.

In 2012, Fernandes challenged the decision in Superior Court represented by attorney Michael Kelly. Judge William Carnes remanded the case back to the board for findings of fact, ruling also that the city should review if member Rivers, who voted against the application along with Kathryn Dumais, had a conflict of interest due to his business dealings with Roland Michaud, who testified against the application.

But after the state Ethics Commission ruled that there was no conflict, the board reaffirmed their decision in March, with Rivers again hearing the case and voting against the variance.

Now, the board will need to utilize one of its alternate members for the decision under court order. The ruling, issued Oct. 21, states that Rivers should have recused himself, and that Fernandes must receive a new hearing with an alternate in his place.

"The Zoning Board's decision finding no conflict of interest and allowing Rivers to participate in and vote at the hearing was not only characterized by an abuse of discretion but rendered the entire proceeding unconstitutional," it states.

The decision was based, in part, on testimony from alternate Zoning Board member Richard Fagnant, who said Rivers informed him he would be voting against the application in advance of the hearing held in July of 2012.

Rivers, the judge ruled, made statements that were "patently offensive to the Due Process Clause's guarantee of an impartial and disinterested tribunal." The ruling states that other facts, including Rivers business relationship with Michaud, also suggested bias.

"These facts, in combination with Rivers' pre-hearing declarations, further undermine the bedrock principle of strict impartiality required by Rhode Island Supreme Court precedent," Procaccini wrote.

Rivers was first appointed to the Zoning Board in June of 2011 as the first alternate by Mayor Leo Fontaine. He became a full-fledged member in December of that year via a resolution signed by City Councilors Roger Jalette and Daniel Gendron, and is slated to serve until April 2014.

According to the city's code of ordinances, "members of said board shall be persons not actively engaged in business and professions, unless the same shall be in compliance with state law regarding conflict of interest, Chapter 14, Title 36-14-17 of the General Laws of the State of Rhode Island and Providence Plantations."

The council members defended their pick, and the actions of the board this week, questioning the judge's ruling.

"I think it was a good appointment and I would make it again," said Gendron. "If this is appealed, you may find that there's not a conflict."

Jalette took issue with Fagnant's testimony, and said that Rivers was not well represented in court.

"I question whether or not that statement was really made prior to the hearing," said Jalette.

"As far as I'm concerned, he did not have adequate defense."

Zoning Board members and Finance Director Thomas Bruce, who was also listed as a defendant in the case, were represented by attorney Joseph Carroll.

"I don't think Mr. Carroll did as good of a job as he should have," said Jalette.

The alternate zoning board members, one of whom will have to sit on Fernandes' new hearing, are Fagnant, and Michaud, who was appointed in July of 2012, after the controversial hearing and the conflict began.

Michaud was appointed by in a resolution also signed by Gendron and Jalette, along with Councilors Albert Brien, Christopher Beauchamp, and Marc Dubois. Only Council President John Ward voted against the appointment of Michaud, who will serve until April 2013.