WESTBROOK – Pike Industries may want to hold off blasting at its Spring Street quarry – two interveners in the company’s lawsuit with Westbrook filed appeals of a judge’s decision to accept the settlement between Pike and the city.

Artel Inc. and Smiling Hill Farm, two businesses located near Pike’s Spring Street quarry, filed their notices of appeal with the Maine Business and Consumer Court this week.

Jerre Bryant, city administrator for Westbrook, said the appeal does not prevent Pike from moving forward with its quarry operations. Once the superior court rendered its decision, Pike was free to go ahead with its plans, he said.

“An appeal does not stay anything,” he said.

Bryant said Pike would have to make a business decision whether to move forward while the appeals are pending, but the company has no legal obligation to wait.

Sig Schutz, an attorney for Pike, called the appeals “unfortunate,” and said the company needs “some time to digest” this latest turn. He said Pike will inform the city soon of its plans.

“At this point, having just received the appeals, Pike is reviewing and considering its options,” he said. “We agree with the city that we have a right to continue (with quarry operations).”The quarry has existed for 40 years, but developed into a controversy when the city determined that quarrying on the site is illegal because Blue Rock, the company that sold Pike the quarry in 2005, failed to meet conditions of its 1968 quarry permit. That led Pike to file suit, arguing it was unfair for the city to deny a right to operate now when it had knowingly allowed quarrying at the site for decades.

After years of negotiations involving Pike, the city and another intervener, Idexx Laboratories, the sides crafted a consent agreement allowing Pike to continue operations at the quarry with certain conditions designed to limit the impact on Pike’s neighbors.

Justice Thomas E. Humphrey approved the settlement in November, although opponents of the deal claimed it sidesteps the required rezoning process, unlawfully ties the hands of future city councils and represents “judicial rezoning,” which violates the separation of powers clause of the Constitution.

Artel, a company that makes precise liquid measuring equipment, has maintained that a blasting pit on the corner of the Five Star Industrial Park is incompatible with its operations. In its notice of appeal, Artel questions whether the court made an error in accepting the consent decree and in other decisions it made on motions throughout the process.

In its appeal notice, Smiling Hill Farm also identifies issues with the court approving the settlement. The appeal claims the settlement “created a contract zone” without compliance with State zoning laws, public participation requirements and city codes.

According to the appeal, the court lacked authority to approve the settlement because the power to create and enact contract zoning or to amend a zoning ordinance is a legislative and executive power. Therefore, attorneys for the interveners claim, the judge’s approval violates the separation of powers article of the Maine Constitution.

The appeal claims the settlement is contrary to Maine’s public policy and not in the public interest because it circumvents the legislative process and overrides zoning on the quarry site that Westbrook enacted in June of this year.

Both appeals also question whether the court erred in its decision not to hold an evidentiary hearing on whether the agreement is legal, fair and in the public’s interest.

Bryant said of the latest development, “We are very disappointed but will continue to work with both Smiling Hill Farm and Artel to achieve their continued success in Westbrook.”

No court date has been set for the start of the appeals process. An e-mail from city attorney Natalie Burns indicates the appellants have 56 days to submit their briefs to the court once the superior court clerk transmits the record to the law court, while the city, Pike and Idexx have 105 days to do the same.


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