WESTBROOK – A court ruling Thursday on a consent agreement negotiated between Pike Industries and the city raises new questions about whether the company will be able to blast and excavate at its Spring Street quarry.

The Maine Supreme Judicial Court, ruling on an appeal, found that the city cannot enforce the performance standards laid out in the agreement, which include noise and vibration limits for blasting, trucking and crushing rock. The standards would be enforceable if written into a contract zone or zoning ordinance, the court said.

The ruling means Pike will have to apply for a zoning change if it wants to continue quarrying on Spring Street.

Also left unclear by the ruling is whether Pike can proceed with blasting that the company had planned for the last week in June or first week in July.

Artel Inc. and Smiling Hill Farm, the neighboring businesses that appealed the consent agreement to the state Supreme Court, declared the decision a victory.

The details of the consent agreement, reached in a “back-room deal,” will now have to be vetted through a public process, said David Bertoni, attorney for Artel, which manufactures equipment for precision measuring of liquids. That would mean a review by the Planning Board and the City Council, which would ultimately vote on whether to adopt the change, as well as public hearings, he said.

Warren Knight, president of Smiling Hill Farm, said the difference is that Westbrook residents had no say in what was included in the consent agreement and couldn’t challenge it, other than in court.

“This is a win for the public,” he said.

Pike, however, believes the court approved the basic terms of the consent agreement, and invalidated it solely on the basis of a “technicality,” said attorney Sigmund Schutz of Preti Flaherty, which represents the company.

“This is really a cut-and-paste situation,” he said of rewriting the performance standards into a zoning ordinance. He noted that the council is “the same body that approved the consent decree” in the first place.

Schutz also pointed out a clause in the court’s decision that says “Artel had ample opportunity to be heard in opposition to the consent decree.”

The consent agreement was reached in the fall of 2010 among the city, Pike and Idexx Laboratories, the first of the quarry’s neighbors to oppose Pike’s plan to expand operations there.

The agreement, which required Pike to build buffers around the quarry and imposed limits on the hours and frequency of blasting, had been approved by the Maine Business and Consumer Court. The Supreme Court sent the agreement back to the business court for further review. Bertoni said he expects a court conference to be scheduled within six weeks.

In the meantime, Pike plans to apply for a zoning change that reflects what’s written in the consent agreement.

But before that process begins, there’s a more pressing question facing the city: whether Pike can blast as early as the end of the month.

Bertoni and Knight say it would be illegal to blast rock in light of the court decision, because they believe the consent agreement no longer applies. Pike believes it can blast as planned.

Both sides agree it will ultimately be up to the city.

Natalie Burns, the city’s attorney, said Westbrook officials need time to review the decision to determine whether Pike can continue blasting.

“That’s something we’re going to be looking at,” she said.

Staff Writer Leslie Bridgers can be contacted at 791-6364 or at:

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