WESTBROOK – Despite a decision by the Maine Supreme Court that tossed out a consent agreement between Pike Industries and the city of Westbrook over blasting at its Spring Street quarry, Pike lawyers say that plans to blast will proceed – unless the city requests that it hold off.

Sigmund Schutz, of Portland-based PretiFlaherty, said Wednesday Pike believes it has a grandfathered use at the quarry and a valid blasting permit and will be proceeding as scheduled.

“No further permissions are necessary,” he said on Wednesday. “It’s our view that we have the right to operate the quarry.”

According to a permit issued by the city, Pike has scheduled eight blasting days, June 26-29, and July 3, 5, 6 and 10, to amass enough rock at its quarry to begin crushing operations, which are expected to start sometime in July.

City Administrator Jerre Bryant said on Wednesday that the city is still evaluating its options in the wake of the court’s decision, and has not come up with a plan of action as of yet.

Bryant said the city has been communicating with Pike during the process, and he believed that a solution would be reached before the first of the blasting dates on Pike’s permit.

Schutz said the company intends on working with the city.

“The position generally is to be fully cooperative with the city and work with the city to address any concerns,” he said. “We’ll evaluate anything the city brings to us.”

At issue is a consent agreement that the city reached with Pike in 2010 to allow blasting at the quarry after several local businesses, notably Idexx, Artel and Smiling Hill Farms, as well as residents, protested.

After Pike announced new operations at the plant in 2008, nearby Idexx Laboratories threatened to call off a planned expansion of its own facility, citing concern that blast vibrations could interfere with the delicate nature of its diagnostic work. In the 2010 agreement, Pike agreed to limit itself to no more than eight days of blasting per year, while also shifting blast sites to create a larger buffer zone between its quarry and the Idexx building.

While Idexx went ahead with its expansion plans, Artel and Smiling Hill were not satisfied with the agreement and the way it was reached, and went to court to have it struck down.

In a 28-page ruling issued June 14, the court said the city does have a right to enter into a consent agreement with Pike and can declare its operations “grandfathered” from current zoning regulations that would otherwise ban the blasting activity.

However, the court partially sided with Artel and Smiling Hill Farm, which had appealed the agreement by claiming it was reached illegally and largely out of public view. Westbrook cannot enforce any of the performance guarantees in the consent agreement, the court said, unless those standards are written into local zoning ordinances, or else a special “contract zone” is created, codifying stipulations of the consent agreement. The agreement has been remanded back to the Maine Business and Consumer Court, which approved it in 2010, for further review.

After the ruling was announced last week, representatives from both Artel and Smiling Hill said they were satisfied.

“This case will now proceed through the ordinarily zoning procedures that should have applied from the first instant and which apply to every other citizen,” said Artel’s attorney, David Betonli, of Lewiston law firm Brann & Isaacson. “Pike has no more rights than the average Westbrook citizen, and that’s how it should work.”

“The city can create a contract zone, but that’s a process, and it includes the public,” said Smiling Farm owner Warren Knight, who claimed that he was shut out of the city’s talks with Pike and Idexx during the run-up to the consent agreement.

Knight, who claims his livestock are as sensitive to blast vibrations as the technology at Artel, said he felt sacrificed at the altar of Idexx, because the buffer zone actually pushed blasting closer to his fields.

“They wanted to do a deal that was outside the public purview,” said Knight. “Now, this will have to go to the City Council, then the Planning Board, then the Zoning Board of Appeals, and then back to the Planning Board and the City Council, and, throughout that entire process, the public gets to be involved.”

This week, Artel sent a letter to the city asking the administration to force Pike to stop all quarrying activities until the ordinance is changed.

Bryant said the city cannot initiate the process of changing the ordinance unilaterally. The request has to come from Pike, and, he said, he believes that will be forthcoming in the near future.

While Pike said it intends to blast unless the city intervenes, Schutz added that the company does intend on submitting an application to the City Council to change the land use ordinances to include the standards set forth in the consent agreement and that the company will not use the process as an opportunity to change any of those standards, saying it will seek to keep the same ones in place.

“The Court had no problem with the content of the performance standards in the consent decree, but said that that they have to be ‘formalized’ in the city’s land use ordinance,” Schutz said in a statement last week. “The court said that the performance standards should be in the land use ordinance instead of the consent decree, but did not suggest any changes to the standards themselves. The same standards can be cut and pasted from the consent decree into the land use ordinance. Any changes to the land use ordinance are made by the City Council, which is the very same body that approved the consent decree.”


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