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Embattled zoning board member asks judge to vacate scathing ruling

December 13, 2013

WOONSOCKET – Embattled Zoning Board member Allen Rivers wants a Superior Court judge to vacate a recent ruling in which he was branded “arrogant and offensive,” saying the jurist was improperly denied all the facts when he issued the decision.

Rivers has hired high-profile lawyer Robert G. Flanders to press the motion before Associate Superior Court Justice Daniel Procaccini. Flanders is a former associate justice of the state Supreme Court but is just as well known these days as the court-appointed receiver who led Central Falls through the state’s only municipal bankruptcy.

At issue is a zoning petition dating back to 2010 in which prominent city developer Gary Fernandes seeks to convert the former St. Francis House on Blackstone Street into 18 dwelling units. Even though a majority of zoners supports the plan, Fernandes has been unable to move forward because he’s one vote shy of gaining the supermajority he needs to do so under prevailing city regulations.

Rivers has twice voted against the proposal, a position the developer’s lawyer, Michael Kelly, contends has been improperly tainted by anti-Fernandes bias and potential conflicts of interest. Rivers is a business partner with Roland Michaud, who allegedly counseled Rivers against supporting Fernandes’ plan before he, Michaud, was himself appointed to the board.

In an Oct. 21 order remanding the case to zoners for what would be a third hearing, Procaccini essentially embraced Kelly’s position in a scathing ruling in which the judge opened with a quote from the ancient Greek philosopher Socrates. “Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.”
Procaccini went on to say that “Rivers’ arrogant and offensive conduct is repugnant to the fundamental principle of judicial impartiality embodied in the Due Process Clause” of the constitution. “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.”

But Rivers’ lawyers have filed a motion in Superior Court that says the decision was based on an incomplete record. They said they would have rectified the situation but they had no opportunity to do so because Kelly improperly failed to notify them that he had filed an appeal of the Fernandes decision, or that he had filed additional rounds of supplementary paperwork to support the appeal.

Kelly posted three links on his web site to newspaper stories about the decision which appeared in The Call and The Valley Breeze, but Rivers’ lawyers say he violated the rules of civil procedure by failing to notify them of the filings.
“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,” the motion to vacate says. “Regrettably, the Court mistakenly reached this conclusion because plaintiff and his counsel never gave the required notice to Mr. Rivers’ counsel...and no other party to the lawsuit advised the Court of this factual dispute in the record.”

Flanders is asking for Procaccini to vacate his own decision and for Fernandes to pay Rivers’ legal fees.
Like Procaccini, Flanders included a high-minded quotation as a preamble to the brief: “It takes a lifetime to build a reputation and only a few seconds to destroy one.” A footnote in the brief indicates that the author of the quote is unknown.

A key pillar of Procaccini’s decision was a sworn statement given to Kelly by alternate zoning board member Richard Fagnant saying Rivers told him he was planning to vote against Fernandes’ petition before hearing any testimony. Rivers’ lawyers say he had prepared affidavits to rebut Fagnant but they were never supplied to the court because they were not informed of the status of the appeal, filed after the zoners’ latest decision on the case, in July 2012.

Reached by telephone earlier this week, Rivers said he couldn’t comment on the motion because it involves a pending case. The suit was filed against Rivers personally, but it could also affect a separate $3 million civil action Kelly has filed against the city in response to the zoning actions involving St. Francis House.
Follow Russ Olivo on Twitter @russolivo

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