Zoner seeks relief from judge's ruling on St. Francis House

Zoner seeks relief from judge's ruling on St. Francis House

WOONSOCKET - Attorneys for Woonsocket Zoning Board member Allen Rivers say a harsh ruling issued by Associate Superior Court Justice Daniel Procaccini granting developer Gary Fernandes a new hearing on his request for a zoning variance at St. Francis House was based on an incomplete record and disputed facts, and has had a devastating effect on Rivers' reputation.

Now, they're looking to have the order vacated because of what they call "misconduct" on the part of counsel representing the developer.

The ongoing legal battle stems from Rivers' repeated votes against a variance for an apartment complex at 167 Blackstone St. Fernandes purchased the building, formerly known as St. Francis House, an assisted living facility with more than 60 residents, from the Diocese of Providence. Under current zoning law, Fernandes is permitted to create just nine units in the building, and has petitioned the board several times to increase the limit.

The request was denied by a 3-2 vote in July 2012, with Rivers and member Kathryn Dumais voting against the proposed variance. Members Norman Frechette, Alan Leclaire and Richard Masse approved the plan, but the city law requires such zoning decisions to be supported by a supermajority.

In October, Procaccini called Rivers' behavior in denying the variance "arrogant and offensive" and ruled that the zoner's business relationship with Roland Michaud - who spoke against Fernandes' application - showed a conflict of interest.

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

Now, attorneys Robert Flanders and Christopher Dawson have challenged the Superior Court ruling, saying that Fernandes' counsel blatantly disregarded the Superior Court Rules of Civil Procedure in an appeal of the Zoning Board's decision.

"Despite knowing of Mr. Flanders representation of Mr. Rivers in this appeal, plaintiff's counsel failed to notify Mr. Flanders of the appeal, or to serve Mr. Flanders with any subsequent filings," the motion states. "Unaware of the filings, Mr. Rivers did not file an opposition and was denied his due process right to notice and an opportunity to be heard."

Fernandes is represented by attorney Michael Kelly.

"The court thus reached the erroneous conclusion that Mr. Rivers engaged in 'arrogant and offensive' conduct by failing to recuse himself, when the facts on which it bottomed that conclusion were hotly disputed," it states.

According to the attorneys, Rivers disputes both Fagnant's testimony and the claims about his relationship with Michaud.

The motion points to a supplemental affidavit on the matter, filed Feb. 22 2013, in which Rivers states "I never had a conversation with him (Fagnant) regarding the Fernandes application."

Rivers says he was "especially cautious" not to discuss the matter outside public hearing because of the pending and "very public" litigation surrounding the case.

Further, Rivers said, Fagnant has made several outlandish public comments on the matter, bringing his credibility into question. Rivers quotes a statement Fagnant allegedly made about members of the Zoning Board on radio station WNRI days after the decision.

"If I had my way, I'd line them up against the wall across the street from the city hall and shoot them all," Fagnant reportedly said.

According to the affidavit, Fagnant also suggested that residents take up a militia to guard the building.

"My position and vote on the matter is grounded solely on the evidence presented at the hearing and my interpretation and understanding of the zoning ordinance, the Rhode Island general laws as they pertain to zoning, and the city's comprehensive plan.

A judge is expected to take up the motion to vacate the Oct. 21 ruling later this month.