As lawsuit looms, company’s concessions aim to appease neighbors

WESTBROOK – With a judge refusing to delay the Sept. 13 start date of a civil trial pitting Pike Industries against the city of Westbrook, fast-paced negotiations to try to settle the lawsuit out of court were under way this week.

As of Wednesday afternoon, Pike had agreed to more than 11 additional concessions and conditions designed to protect neighboring homes and businesses if it is allowed to resume blasting and other operations at its controversial quarry on Spring Street.

According to City Council President Brendan Rielly, who sat in on some of the talks, among the changes Pike had agreed to was limiting the number of blasts needed to relocate a quarry entrance road. The company also had agreed to stipulate that it would not build an asphalt plant on either side of Spring Street and agreed to submit to Department of Environmental Protection monitoring at the site, Rielly said.

The concessions and conditions are part of a revised consent agreement proposal that was due to go the council for a vote Wednesday evening, after the American Journal’s deadline. If the council approved the agreement, the plan was to send it to the judge for approval to settle the case.

Rielly on Wednesday afternoon said he couldn’t predict what he or the rest of the council would decide. He said he was waiting to hear public comment on the issue Wednesday night before making up his mind.

However, Rielly said, while sitting in on negotiations as the mayor had asked him to do, “I was very encouraged and pleasantly surprised at the amount of progress.” He said he observed sessions last week and on Tuesday evening, although was unable to attend a final session on Wednesday morning.

“The changes to the consent agreement that were brought forward are very significant,” Rielly said. “They’re not everything we’d want, but there is no doubt in my mind that the consent agreement is a much better document than it was two weeks ago.”

That previous consent agreement was hammered out over several months this summer by the city, Pike and Idexx Laboratories, a biotechnology firm located across the street from Pike in the Five Star Industrial Park. That agreement would have let Pike go back to operating its quarry, but with such restrictions as limiting production blasts to eight times per year. Such conditions were designed to lessen the impact of quarry operations on neighboring homes and businesses such as Idexx, while allowing Pike, one the city’s major taxpayers, to make use of its quarry.

The consent agreement, if it had been approved by the City Council and then by a judge, would have settled Pike’s lawsuit against the city without a trial.

However, the council on Monday, Aug. 30, heard from businesses and residents who argued that the protections in the consent agreement were not sufficient. The council voted to table a decision on the agreement until October, and directed city administrators to go back to the negotiations table and include residents and other businesses in the talks. The council also said the city should ask for a delay in the trial.

The city had previously filed a motion in Maine Business and Consumer Court asking for such a delay. That motion was supported by Pike and Idexx, but opposed by other business neighbors of Pike – Artel Inc. and Smiling Hill Farm.

Lawyers for Artel and Smiling Hill, interveners in the lawsuit Pike filed against the city, complained in court that they had been excluded from negotiations this summer and told the judge that Pike and the city have had plenty of time to negotiate already.

Artel, which manufactures precise instruments to measure liquids for scientific study, has said seismic waves from blasting by Pike would hinder its ability to do business. It has threatened to move its 55-employee business out of the city if Pike resumes blasting.

Smiling Hill wants to build a 20-acre greenhouse to grow tomatoes and said shock waves and flying rock could threaten the greenhouse.

At a hearing on Friday morning, Sept. 3, Superior Court Chief Justice Thomas E. Humphrey denied the motion to delay the trial, saying the earliest other date available was Nov. 1, and that he was not sure that giving the parties more time would increase the chances of settling the issue. The judge said it is the goal of the business court to move litigation along expeditiously.

But Humphrey urged all involved to continue to work toward settling the case. He warned all the parties that if the case comes to him to decide, one side or the other would lose.

“If and when we go to trial and I hear the evidence, not one of you, not one of you should sit there and feel you are without risk and that the outcome is assured,” the judge told all the lawyers in the courtroom. “You may be sorely disappointed.”

The city has said that Pike doesn’t have a legal right to operate the Spring Street quarry because Blue Rock, the company Pike bought the quarry from in 2005, didn’t meet conditions of its 1968 quarry permit.

However, Pike is arguing that the city is unfair to deny it the right to operate now when it knowingly let quarrying go on at the site for about four decades.

Friday’s decision by the judge meant that there was greater pressure on Pike, the city and Pike’s residential and business neighbors to settle the legal dispute before the trial date next Monday.

Mayor Hilton, who with City Administrator Jerre Bryant brokered the first proposed consent agreement, continued her involvement in the negotiations process, as did Bryant.

Hilton and Tony Buxton, lead attorney for Pike, said Friday that it was unclear at times how willing the other parties were to negotiate, because some were not showing up for meetings.

But residents and businesses complained about the fast pace of negotiations, saying Hilton refused to back down on her resolve to put a proposal before the council on Wednesday evening.

Jack Wood, facilities manager for Artel, sent a letter to the mayor last week, complaining that questions of process in the negotiations were getting “short shrift” and that a request for an impartial facilitator for the talks was denied. Artel said the city has a “conflict of interest” in both being a party in the lawsuit and the facilitator of negotiations about a settlement.

Artel also stated that it would prefer the matter go to trial rather than be settled. It also demanded that if Pike is allowed to operate, that it buy Artel’s property on Bradley Drive for its full purchase price and pay the company’s moving expenses and other costs to relocate its business and employees.

An Artel spokesman said Wednesday afternoon that Pike had not agreed to any of those demands.

Buxton declined to discuss Pike’s concessions because he said negotiations were still ongoing.

He would only describe the concessions as “very creative” and “very representative of the concerns of businesses and neighbors.” He said that Pike had gone “the extra mile in trying to make this a successful agreement.”

Rielly praised Hilton and Bryant for their hard work and said that residents Tim Bachelder, Mercer Bonney and Gary Swanson, who represented neighbors at the table, “really worked hard through the process to come up with very constructive proposals.”

Rielly said, “It’s a much better agreement than it was two weeks ago and more people got a chance to be involved.”