PORTLAND – Attorneys on both sides of the controversial consent agreement between Pike Industries and the city of Westbrook made their case before a Cumberland County Superior Court judge in a hearing Wednesday morning on a motion to grant preliminary approval for the agreement.
Opponents argued that the agreement supercedes too much of the local government’s authority, in this case the city of Westbrook, to weigh in on Pike’s operations at its Spring Street quarry. There are too many assumptions, they said, that local officials, such as the zoning board, will simply go along with it.
“I think, for the benefit of the public, the assumption should be that we do not know what the city will do,” said David Bertoni, a lawyer with the Lewiston firm Brann and Isaacson, representing Artel, a Pike abutter. “That’s the nature of representative government.”
Attorneys for Pike and the city countered that the Maine Supreme Court had already given preliminary approval to the agreement, and that the Superior Court is merely helping to implement a legal process already set in motion by that decision.
“There is no reason to reconsider (the agreement),” said Jonathan Mermin, an attorney with Preti Flaherty, representing Pike.
The case is now in judge Thomas Humphrey’s hands. If he grants preliminary approval, the city will have to make a change to ordinances governing industrial blasting. Then the agreement will go back before the court for a possible final approval.
The agreement represents years of wrangling over conditions under which Pike would be able to operate. Negotiations began when Idexx Laboratories, which abuts the Pike property, threatened to cancel plans to build its $50 million corporate headquarters, after Pike announced it was stepping up operations at its Spring Street quarry, which had lain dormant under previous owners for years.
City officials, fearing Idexx would pull out of the city altogether, began acting as a mediator in what essentially was a dispute between Pike and Idexx. The agreement, which set rules for issues such as rock blasting, received preliminary approval earlier this year from the Maine State Supreme Court.
But other abutters to the property, such as Artel, a manufacturer of sensitive fluid-measuring equipment, Smiling Hill Farm and residents of the nearby Birdland neighborhood, charge that Pike, Idexx and the city didn’t offer them a seat at the table.
“We haven’t been allowed to have that conversation (with Pike),” Bertoni said after the hearing.
So while the court paperwork officially lists Pike as the plaintiff, and Westbrook, Idexx, Smiling Hill and Artel as co-defendants, in Wednesday’s hearing Artel and Smiling Hill’s attorneys argued against the agreement, with everyone else arguing for it.
In addition to the request for preliminary approval, attorneys for all parties spent the hearing asking Humphrey to rule whether to reinstate a stay of operations that dates back to 2009 that would effectively block Pike from operating its quarry until the matter is resolved.
The most notable issue since the dispute began in 2009 is whether Pike should be allowed to perform production blasting, which means setting off explosives to loosen rock for later removal. Opponents argue that the noise and vibrations from the blasting would be disruptive, and in the case of private homes, even cause damage.
The agreement demands Pike not conduct more than eight of these blasting sessions per year, but in its ruling, the state Supreme Court said that provision of the agreement, which it described as “performance standards,” is not officially enforceable.
To give that provision teeth, the Supreme Court essentially kicked the case back to Superior Court, suggesting Pike get preliminary approval there. Then, once the city can craft an ordinance, or change an existing ordinance, to set performance standards, a final approval by the Superior Court would make the agreement binding, and allow every provision to be enforceable.
Pike had scheduled several blastings for this month, but postponed them at the city’s request.
Opponents to the agreement argued that Pike should not be allowed to do any work there at all until the entire legal process is complete.
“We don’t have a final decision,” said David Silk, an attorney with Curtis Hill Thaxter of Portland, representing Smiling Hill Farm.
Natalie Burns, Westbrook city attorney, argued that there is no stop-work order now, and the Supreme Court ruling, in fact, states that Pike can operate its quarry even without the agreement in place. Putting preliminary approval on the agreement, she said, will be the fastest way to put some guideline in place to regulate the quarry, even without the blasting provisions.
Bertoni said he and his co-litigants want the chance to have a say in what the agreement says, and urged the court not to merely rubber-stamp the agreement.
“What’s before you is an up-or-down on this, thumbs-up or thumbs-down,” he said.
Humphrey said he would take all the arguments under advisement, and announce a decision as quickly as possible.