December 12, 2012

Court rejects Westbrook quarry agreement

A provision conflicts with a zoning ordinance, so the Pike consent decree needs revision, a judge says.

By Leslie Bridgers
Staff Writer

The years-long legal battle over Pike Industries' Westbrook quarry isn't over yet.

click image to enlarge

Pike Industries' Spring Street quarry in the city of Westbrook. Photographed on Monday, November 16, 2009.

Gregory Rec / Staff Photographer

The Maine Business and Consumer Court ruled Tuesday that a consent agreement among Pike, Idexx and the city conflicts with a newly adopted zoning ordinance regulating the use of the quarry.

The difference between the two documents is that each says it trumps the other, according to a decision by Chief Justice Thomas Humphrey.

The consent decree was formed in 2010, after Idexx raised concerns about Pike's right to quarry there. Both companies were planning expansions of their operations on adjacent sites at the time.

The agreement put limits on noise, vibrations and other effects of blasting and transporting rock in the quarry on Spring Street.

But other nearby businesses, Artel Inc. and Smiling Hill Farm, were not happy with the consent agreement or the fact that they were left out of negotiating it. They appealed the agreement to the Maine Supreme Judicial Court, which ruled in June that the city would have to enact a zoning ordinance or contract zone in order to enforce the standards laid out in the consent decree.

The supreme court gave preliminary approval of the decree, on the condition that Pike pursue the zoning amendment. The city adopted a zoning ordinance for Pike's property in October.

Artel argued to the business court that there were discrepancies between the consent decree and the city's zoning ordinance. Pike said the differences were inconsequential.

Although the court agreed that most of the differences were not significant, it found that a provision in the consent decree contradicted the zoning ordinance and, because of that, it did not approve the agreement.

The provision in question says the consent decree "is intended to and will supersede and control over any different or conflicting provisions of the Westbrook Code of Ordinances now existing and hereafter enacted," and that if there is a conflict with "any state or federal requirements, the stricter provision shall control."

The city's new zoning ordinance, however, says its "performance and use standards are meant to control over any different, conflicting, or additional performance and use standards."

Humphrey said the court "has serious doubts" about whether the city can forever hand over its authority over a certain piece of land through the consent agreement.

"(Pike is) trying to get provisions that can never be changed. Finally, the court has made it very clear that that's not available," said David Bertoni, Artel's attorney.

Humphrey said Pike can amend the consent decree and present it again to the court, and that a conference would be scheduled next year.

Tony Buxton, attorney for Pike, said he didn't know yet how Pike would proceed because he hadn't discussed the decision with his client as of Tuesday afternoon.

He did say he was "optimistic that this is a bump in the road and nothing more."


Staff Writer Leslie Bridgers can be contacted at 791-6364 or at:


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