Merrill Quarry Operator Shovels Lawsuit at Town

Apparently stuck between a rock and a hard place, a quarry operator ordered to shut down for being a "nuisance" to neighbors has sued the town for damages and is fighting to reopen.

In February, the Board of Health ordered Mark Kitner to effectively cease operations at Merrill Quarry after long-running noise complaints from residents who live nearby in Greystone Estates. Board members ruled noise from excavators and trucks constituted a "nuisance." They also cited concerns about air pollution.

The granite-rich quarry, located on Tyngsboro Road, has been dormant for decades. Kitner, of Dracut, has spent the last two years trying to reopen it.

Kitner' attorney filed the suit in Middlesex Superior Court in March. The attorney argues the noise and pollution complaints are baseless. The suit seeks to overturn the board's shutdown order and calls for monetary damages. A judge will review the case in the coming months to determine if it has merit to move forward.

It was not clear how much money Kitner is seeking. He could not immediately be reached for comment last week. His attorney, Braintree-based Thomas Moriarty, did not return a phone message.

Board of Health Chairman Zac Cataldo said the board is not against Kitner running the quarry. Cataldo said Kitner has not obtained a proper air quality permit from the state Department of Environmental Protection and has not provided the board a firm timetable on when he will get it.

"It just keeps going on," Cataldo said. "It's the equivalent of someone building up a house ... If (it) goes on and on forever, it becomes a nuisance."

The suit argues the board has no authority to compel Kitner to obtain the DEP permit.

Excerpts from the suit are attached.