Court date looms as agreement talks set to resume

WESTBROOK – Officials at Pike Industries are “exceptionally disappointed” by a Westbrook City Council decision to table a proposed agreement to let Pike resume operations at its Spring Street quarry.

The agreement included restrictions designed to protect nearby homes and businesses such as Idexx Laboratories.

But many residents and businesses said the protections weren’t strong enough, so the council on Monday voted 7-0 to table the consent agreement until October so that further negotiations with those groups can take place.

As of Wednesday, the future of such negotiations remained unclear.

Pike’s lead lawyer, Tony Buxton, said Wednesday morning that the company hasn’t ruled out more talks, but expressed doubts about their success, especially with a Sept. 13 trial date looming for a court case Pike filed against the city. The consent agreement was designed to settle the court case.

Buxton said Pike is unhappy the council did not approve the consent agreement, recently hammered out after months of negotiations among Pike, Idexx, and top city officials.

“Pike is exceptionally disappointed about what the council did not do,” Buxton said.

Still, he said, the company is “proceeding in good faith.”

“We eagerly await some idea or some discussion of what the negotiations process is going to be,” Buxton said. “We are cautiously optimistic something positive can happen.”

Yet, he said, Pike also is prepared if necessary to go to court to argue that it has a pre-established right to operate the quarry based on decades of past quarry activity the city allowed there.

“I have told my trial attorneys to prepare for trial,” Buxton said.

He said that the residents of Westbrook should be aware that if Pike wins the case, the company “may not have to do any of those performance standards (required by the consent agreement).”

An 8:30 a.m. conference with the judge in the case was set for Friday, Sept. 3. It was not clear on Wednesday whether the judge would agree to delay the start of the trial, as the city has requested.

Buxton said that Pike was surprised by the council’s decision on the consent agreement.

“The sacrifice we have made in order to keep Idexx in Westbrook did not seem to be appreciated as we thought it might be by the council,” Buxton said.

The consent agreement would have ensured that Pike and Idexx, two of the city’s biggest taxpayers, remained in the city.

The concessions and restrictions Pike agreed to in the deal – such as limiting blasting to a maximum of eight times per year – would increase its operating costs by one third, Buxton said.

Mayor Colleen Hilton, who brokered the deal with City Administrator Jerre Bryant, had described it as a compromise designed to allow Pike to resume blasting at its controversial quarry, but under numerous restrictions and conditions that city officials said would protect neighboring residents and businesses. If approved by the council and a judge, the consent agreement would have ended the court case over the quarry.

However, after about three hours of emotional public testimony and debate Monday, councilors ended up voting to delay a decision on the proposal. They said the deal needed more work, and sent it back to the city administration for further negotiations with neighboring businesses and residents.

Some city residents and business owners who had opposed the agreement hailed the decision to table. They contended the deal benefited Pike and Idexx, while shortchanging homeowners and small businesses.

“I’m very pleased,” said Tim Bachelder, a Spring Street resident and spokesman for Westbrook Residents for Environmental Safety and Trust. “I think this is the best outcome. It is the best chance to find a solution that more people can support.”

However, those supporting the deal – which included nearly 2,000 city residents who signed cards in favor of the compromise, local businesses and Hilton – said it was a breakthrough opportunity to end a years-long dispute between Pike and Idexx and allow them both to do business.

“The bottom line is that most of the world thinks this is a hell of an agreement,” said Buxton.

Gov. John Baldacci was among those who praised the agreement, releasing a statement on Aug. 20, the day it was announced. “This is an example of two strong Maine companies working through difficult issues to arrive at a compromise that is good for them, the community and the state,” Baldacci said.

Hilton said the agreement was based on the recommendations of the Spring Street Quarry Steering Committee, but also included tougher provisions.

That committee, convened by the mayor and made up of residents, business representatives and city officials, spent three months earlier this year coming up with a proposal to allow Pike to resume operations at the quarry under certain conditions. Operations at the site have ceased because the city and judge determined quarrying is illegal at the site, but Pike’s current legal suit disputes that.

The consent agreement follows the steering committee’s recommendation of limiting blasts to no more than eight times per year. Pike, an asphalt production company owned by an Ireland-based corporation called CRH, had said it needed to blast 20 times per year to be profitable. Pike has 400 employees throughout Maine.

Idexx didn’t want more than six blasts per year.

Idexx, a 1,600-employee biotechnology firm that manufactures veterinary products for customers worldwide, is located in the Five Star Industrial Park, across the street from Pike. It had previously had threatened to locate its new, $50 million world headquarters outside of Westbrook if Pike continued to operate its quarry.

That building project is now on hold until the economy improves, but the company plans on a $5 million expansion if the agreement with Pike wins approval, the company has said.

Other parts of the agreement would ban Pike from operating a quarry on half of the property it owns on Spring Street – the half closest to Idexx. Pike would be required to eliminate any dust from the quarry and would have to build new and larger berms, fences and buffers to screen the quarry from the surrounding area and the Five Star Industrial Park.

The improvements would cost Pike $1 million, the company has said.

However, Westbrook city councilors at their meeting on Monday said the agreement needs work.

“We can do better. We can do more,” concluded Councilor Victor Chau.

He and other councilors had listened to more than two hours of public comment on the consent agreement proposal. More than 100 people packed the room at Westbrook High School where the council meets and about 35 people addressed the council.

They included supporters of the agreement, such as Ron Usher, leader of a group called Citizens for Balanced Growth in Westbrook, who pulled a small wagon heaped with cards that he said were signed by approximately 2,000 city residents who wanted the council to approve the compromise.

Also, representatives of regional businesses that use the road repair products that Pike produces said it was important for the state’s infrastructure that the company be allowed to operate.

Hilton also urged the council to support the agreement, which she said had brought two parties once very far apart together.

“It is absolutely perfect? It is not. Is it the best that I thought we could do?” she said. “It is the best that I thought we could do as a team.”

Many also spoke of their dissatisfaction with the agreement. One was Kirby Pilcher, president of Artel Inc.

That 55-employee business, which manufactures carefully calibrated instruments to measure liquids used by science and health laboratories, has said it plans to relocate to another community if the agreement is approved. The company, located in the industrial park, said shock waves from blasting would have a negative impact on the company’s instruments and business reputation.

Pilcher urged the council to aim for “what’s fair and what’s right.”

Artel and Smiling Hill Farm, another nearby business, are intervenors along with Idexx in Pike’s legal case against the city and have complained they were excluded from negotiations.

Warren Knight, president of Smiling Hill Farm, told the council that the agreement didn’t provide for adequate buffers for Smiling Hill and other businesses along County Road.

Bachelder, the spokesman for Westbrook Residents for Environmental Safety and Trust, said residents were concerned about a new access road that Pike plans to build off Spring Street.

Buxton said Pike plans to build the access road to help to shield residents from the sound of daily operations and blasting noise from the quarry and truck traffic.

But Bachelder told the council that instead of a road, neighbors would rather see a wall built along Spring Street to shield them from the quarry.

And both Bachelder’s group and Westbrook Works, a coalition of neighbors and businesses opposing the consent agreement, have filed a request asking the U.S. Environmental Protection Agency to require that Pike complete an environmental impact study before it does any industrial blasting.

Westbrook Works presented the council with a list of 10 revisions it wanted to see in the consent agreement.

Those revisions included adding specific language in the agreement that Pike wouldn’t build an asphalt plant on either side of Spring Street. The company has publicly pledged not to do that. However, Westbrook Works complained that the consent agreement contained only language banning asphalt and concrete making at the quarry.

Councilor Michael Foley, who made the motion to table the issue so that further negotiations with residents and businesses could take place, said the 10 points raised by Westbrook Works should be a starting point for discussion.

Foley also directed residents to choose two people to represent them in negotiations.

Bachelder after the meeting said that he expects he may be one of those representatives.

Bachelder said he doesn’t want the agreement scrapped, just improved.

“I didn’t want a ‘no’ vote,” he said. “We’re really not that far. The big issues are already settled. But we can do better.”

Dick Daigle, director of facilities management for Idexx, said of the meeting: “There were some very good points raised by some of the neighbors and local businesses.”

He said that Idexx “is willing to proceed to work with the city and the other business and residents involved. We hope an agreement can be reached that meets the needs of more people.”

Buxton said that Pike wants to know more about who will be at the negotiating table.

“There’s not much point in having people in negotiations whose view it is that Pike shouldn’t be able to operate,” Buxton said.

And he said that negotiations have to move quickly and must build on work that has already been done. “There’s no starting all over,” Buxton said. “And we’re certainly not going to get unanimity.”

He said Pike is surprised that Idexx “did not stand up and stand by the agreement” at the council meeting. Daigle attended the meeting but did not address the council. Daigle said Wednesday that if he had spoken, he would have advocated for including other parties in the negotiations.

Pike and Idexx had been at odds for about two year, ever since Pike proposed building an asphalt plan on Spring Street near Idexx’s property.

Idexx threatened to build its world headquarters elsewhere.

Pike abandoned the asphalt plant proposal, but Idexx and other neighboring businesses said that rezoning was necessary for the area to become a gateway for high-tech businesses.

The City Council this summer ended up adopting a change that rezoned the Five Star Industrial Park and land around it from industrial to manufacturing. The ordinance change outlawed quarrying in the area, which made Pike’s operation of the Spring Street illegal.

Pike is not considered a “grandfathered” use under the new zoning because the city has said its operation there was illegal.

The city’s Zoning Board of Appeals had previously determined that Blue Rock, the company that Pike bought the quarry from in 2005, didn’t meet certain conditions of its 1968 quarry permit. When Pike took that ruling to court, a judge upheld the board’s finding. That meant Pike did not have a legal permit to operate the Spring Street quarry.

But Pike is arguing in court that it is unfair to deny the company the right to operate the quarry after the city knowingly allowed quarrying there for about four decades. That is the case now before the court.

Some in Westbrook believe that instead of a consent agreement, the city should simply let the issue play out in court because the rulings so far have been against Pike.

But Hilton and others said at the meeting on Monday that if Pike won the lawsuit, it would be allowed to operate freely without any restrictions in place.

“You have to weigh the risks moving forward,” the mayor said.

After the council’s vote, the mayor said she was “disappointed.”

“I’m not as confident as the council is (that the parties can work something out),” she said. “But I may be pleasantly surprised. We’ll find out. We shall find out.”

Residents and business owners pack the City Council meeting room Monday. The council heard some three hours of emotional public testimony and debate before deciding to table a negotiated agreement between Pike Industries and Idexx.Staff photo by Tess Nacelewicz