The seven councilors on the Windham Town Council will soon become the seven judges to rule on a proposed 75-acre quarry on the corner of Nash Road and Route 302.

In deciding the quarry’s final approval, councilors will review all expert studies on the quarry, any new information or reports and all notes and conclusions of the Windham Planning Board.

The public will be asked to present facts for and against the quarry proposal.

Like the court system, the council will weigh the evidence before them and then decide, by majority vote, whether the quarry should or should not be approved.

The planning board gave the quarry project its approval last month after setting in place long-term traffic, noise and well-water monitoring on site.

Town Attorney Ken Cole laid out the legal details of the task ahead of the council during a workshop session on Tuesday night.

In separate discussions the same night, the council asked about the mechanics of a petitioned ordinance change that would restrict all new mineral extraction operations and expansions in town.

A group of Windham neighbors, upset about a quarry moving into their quiet residential neighborhood, led a town-wide petition to send a new more restrictive “mineral extraction ordinance” out to public vote.

This ordinance, if approved, would force developer Peter Busque to return to the planning board for another review to make sure his proposed quarry operation would abide by the new regulations.

Now the council must juggle both the petitioned regulations and the quarry’s approval separately.

Cole told the council that, while they can talk about the petitioned ordinance change freely, they must only talk about the quarry’s review during public council meetings, much like a judge would oversee a legal case.

Given the overlap of the issues, Cole advised the council to act on the quarry review before the public votes on the ordinance change.

The council does have the option to adopt the ordinance outright, but Cole warned against this in fear of civil litigation from Busque.

“It wouldn’t be prudent for you folks to act on it,” Cole told the council Tuesday. “It would be better to let the public decide.”

Cole told the council that they can’t unreasonably delay the review process of the quarry.

This does not mean the council must set a date for a vote on the quarry’s approval or disapproval, but rather that the council must at least start the process.

Part of that process will be a formal public hearing for the quarry once again. During this public hearing, the council will seek testimony from Busque, those opposed to his quarry project, and experts who have performed studies on the quarry’s effect on the surrounding neighborhood.

In accordance with the current mineral extraction ordinance, the council must decide that the quarry does or does not adversely affect the public health and safety of surrounding homes and businesses.

The neighbors argued before the council and the planning board many times in the past that the quarry will create dust, noise, and traffic that would be detrimental to their lives and the viability of nearby businesses.

Busque argued however that he would blast into a hill at the quarry site to shield the surrounding neighborhood from noise and dust pollution and would take all necessary precautions to prevent any adverse effects.

The planning board voted in favor of the quarry project, satisfied with a number of conditions laid upon the quarry to mitigate disruption of the neighbors’ lives.

Now the council will decide anew whether the quarry should be approved or not. A public hearing has yet to be set on the quarry review.

If the quarry is approved, the quarry operations can begin at the site, even before a town-wide vote on the ordinance change.

If the new ordinance is approved by public vote, the council can still amend or repeal the ordinance immediately after its adoption by the town.

When councilors asked questions about how the new ordinance would affect existing gravel pits and quarries in town, Cole said it would depend on the interpretation of the ordinance by Windham’s code enforcers.

Councilor David Tobin noted that the new ordinance reads that “all pits will be reviewed for compliance every five years,” which seemed to contradict the language specifying that the ordinance would only affect new gravel pit and quarry operations and expansions more than five acres.

Cole hinted that the petitioners may present new changes to their ordinance as they continue discussions with local gravel pit and quarry owners. However, these changes can only be considered if the public chooses to vote in favor of the ordinance change.

A public hearing on the ordinance change is scheduled for the council’s regular meeting next Tuesday, Aug. 8, at 7 p.m.

After this public hearing, the council will set a time and place for the town-wide vote on the petitioned ordinance, likely to coincide with the November gubernatorial elections.

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