WESTBROOK – The legal battle over a controversial quarry on Westbrook’s Spring Street is going to have to go another round.

On Tuesday, the Maine Business and Consumer Court ruled that a 2010 consent agreement between the city of Westbrook and Pike Industries is inconsistent with recently adopted zoning ordinances governing the quarry.

Chief Justice Thomas Humphrey said that there were several differences between the consent agreement and the zoning ordinances adopted in October, and those differences, which included provisions about measuring vibrations and noise levels at the quarry, are major enough to prevent him from giving his final approval to the agreement.

In October, the Westbrook City Council approved amendments to the city’s zoning ordinance that were intended to satisfy an order from Humphrey that the city modify its ordinance to contain performance standards for Pike. Humphrey issued that order in August, when he gave his initial preliminary approval to the consent agreement, saying that final approval of the agreement would be given when the city’s ordinances matched up with the standards set forth in the consent agreement.

The issue behind this week’s denial of final approval of the consent agreement is the fact that during the ordinance amendment process, which included public hearings before both the Planning Board and the City Council, changes were made to the language of the amended ordinance to clear up some items in the consent agreement, said Westbrook City Administrator Jerre Bryant.

He said Pike can continue to operate the quarry while the issues regarding the consent agreement and the ordinances are being worked out. Sig Schutz, an attorney with Portland’s Preti Flaherty who represents Pike, said that Pike has agreed not to blast at the quarry while the problems with the consent agreement are being worked out, but the company can remove material that has already been blasted from the quarry.

“The judge cited three provisions in the ordinance amendment that are not identical to the consent order,” Bryant explained. “Two of these inconsistencies were things that people asked for clarification of terms in the consent order.”

Bryant said that by making those clarifications, it arguably made the ordinance different from the consent agreement.

Schutz said it was “frustrating to see those changes that were made at the request of neighbors called into question by the court.”

“We are just trying to do what the courts are telling us we need to do,” continued Schutz, calling the differences “minor discrepancies.”

The first inconsistency cited by Humphrey in his decision is a relatively simple one. There is section of the consent agreement that requires Pike “use synthetic screens and a urethane liner in crushers and maintain those components, or their substantial equivalents to ensure maximum effectiveness in reducing noise levels associated with crushing and screening.”

The amended zoning ordinance is identical to that provision, except that it omits the phrase, “to ensure maximum effectiveness.” Humphrey said that omission “arguably imposes more stringent standards than the enacted ordinance.”

Bryant said he didn’t know why the phrase was omitted from the ordinance, and that would be changed to match up with the agreement.

The second inconsistency that Humphrey noted revolves around a section that requires Pike to clean up any spillage at the quarry entrance. The consent agreement requires that Pike remove “any spillage at the Spring Street entrance to the quarry.” However, the ordinance amendment approved in October calls for Pike to remove “any spillage of gravel, crushed stone, product or debris from trucks leaving the quarry.”

Bryant said the change in language came from an effort to make the ordinance more specific.

“It was very vague in the consent order and we put in more specific language, so it’s not the same,” he said. “It’s different wording, and the judge said it has to be the same.”

The final difference cited by Humphrey was regarding a change in how vibrations coming from the quarry are measured. The consent agreement calls for vibrations to be measured from the closest structure to the quarry’s borders, while the ordinance calls for vibration measurements be measured from any point within a half-mile of the quarry’s boundaries.

Bryant said that change was made because the city had learned that the structure nearest to the quarry did not necessarily receive the greatest vibrations from blasts at the quarry.

“What we have learned is because of density, because of rock outcroppings and things like that, it may not be the closest structure that gets the most impact from the blast,” Bryant said. “So, what we said (in the ordinance amendment) was any area in (the half-mile) measurement area will be recorded.”

“We made it more strict in the ordinance, but that means it’s not consistent with the consent order,” Bryant continued.

In his decision, Humphrey wrote that while the approval of the consent agreement is denied, Pike and the city can choose to amend the consent agreement to confirm with the city’s zoning ordinances and bring it back to the court for review after the first of the year.

Schutz said he expects Pike will work with the city to amend the consent order to secure final approval from Humphrey.

“We’re still committed to working hand-in-hand with the city,” he said.

Pike has been at odds with neighbors to its quarry ever since the company began stepping up operations there, including seeking permission to conduct production blasting. The problem came to a head in 2009, when Idexx Laboratories, which also abuts the quarry property, threatened to cancel its plans to build a $50 million corporate headquarters on its own property.

That led to attorneys from Pike and Idexx, with the city acting as mediator, sitting down to work out an agreement through which the city would govern Pike’s operations at the quarry.

After a lengthy legal battle, which was brought by neighbors of the quarry including Artel Inc. and Smiling Hill Farms, a Cumberland County Superior Court judge granted preliminary approval to the agreement, but noted that guidelines for quarry operations, referred to as “performance standards,” were spelled out in the agreement, but would not be enforceable unless Westbrook’s zoning ordinances included similar language.

Warren Knight, the owner of Smiling Hill Farms, said Wednesday he supported the judge’s decision to withhold approval.

“It was the appropriate decision,” he said. “It will continue to come back (before the city) until they do it right.”

Representatives from Artel did not return calls seeking comment for this story prior to the American Journal’s deadline.