Tuesday’s sequel to the Busque quarry application included a duel of lawyers representing the Windham Preservation Committee and developer Peter Busque.

The debate centered on whether the quarry matter should have ever reached the council level. Busque believes the planning board, which approved the quarry last summer, was the proper body to decide the issue. The town’s attorney and opponents of the quarry believe the council was.

The Windham Town Council agenda for Tuesday night included a vote to accept the written “finding of facts” prepared by town attorney Ken Cole. Before the vote, Busque’s new lawyer, Michael Hill of the Monaghan Leahy law firm in Portland, spoke to the assembled council.

“Under Section 140-33D of your ordinance, only the planning board is authorized to place conditions on a mineral extraction permit,” said Hill. He argued that the ordinance is poorly written and unclear in some crucial areas and that a number of the authorities exercised by the town council are written as belonging to the planning board.

Hill told the town council that it can vote to approve the findings of facts at this point, reject them or push the application back to the planning board.

Town attorney Ken Cole said he agreed with Hill about the list of options, but that the final word was up to the council.

“It is clear that the final word is yours,” he told the council.

While Busque’s lawyer urged the council to move the application back to the planning board, the Windham Preservation Committee lawyer, Kelly Boden of the Portland branch of the firm Verrill Dana, urged them not to.

“This really has been a really long process for everyone,” said Boden. “We shouldn’t all have to suffer because he didn’t get his way.”

Hill told the council that he has represented municipalities in the past and they have a tendency to rush a verdict on issues that have taken up a large amount of time.

“I hope we’re not at that point,” Hill said. The public hearings before the town council for the application began in April and ended last month.

Council Chairman John MacKinnon said the town council’s right to govern this issue has remained unquestioned up until now. He was not comfortable with a reinterpretation of the ordinance at this time.

“It seriously disturbs me that we are changing the ground rules in the 11th hour,” said MacKinnon.

The council voted 4-2 not to move the application back to the planning board and to accept the finding of facts.

Councilor David Tobin said he voted to move the application to the planning board partly because it would “save the town money” by avoiding a lawsuit. This remark was met with an uproar from assembled residents until MacKinnon told them to quiet down.

The other dissenting vote belonged to Carol Waig. She read aloud two letters critical of the town’s rejection of the quarry application written by Windham residents.

“I’m very confident in the vote [we reached],” said Councilor Elizabeth Wisecup. The other members of the council who voted not to move the application agreed with her.

Two weeks after the vote, Busque is still declining to comment on what he plans to do next.

“At this time, I will need to evaluate my options and decide what action to pursue,” Busque said Wednesday morning.

BusqueLawyer: Michael Hill, Esq. urged the town council to move the controversial Busque quarry application back to the planning board at Tuesday’s meeting.

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