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Westbrook: Quarry zone changes need tweaks

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Posted: Thursday, October 4, 2012 8:24 am | Updated: 2:13 pm, Thu Oct 4, 2012.

WESTBROOK – The Westbrook City Council gave first-reading approval Monday night to proposed changes to the zoning ordinance connected to a quarry in the city run by Pike Industries, but warned that if residents’ concerns about the changes are not addressed, there would be no final approval later this month.

“At this point tonight, I can’t vote for this,” said Councilor Paul Emery during discussion of the changes, which will come up for a second hearing and vote on Oct. 15.

The changes, if approved, would set a number of “performance standards” for Pike to follow if it wants to continue to operate its Spring Street quarry.

The city has acted as a mediator between Pike and the quarry’s neighbors since Pike decided to begin using the quarry full time in 2009, a process that included equipment that would produce dust, noise, and vibrations.

Neighbors, including companies such as Artel, Idexx Laboratories and Smiling Hill Farm, along with a group of residents who live in the area, objected to the quarry, prompting the city to begin negotiations with Pike that led to a complex consent agreement.

After a lengthy legal battle, 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.

That means, say attorneys connected to the case, the court won’t grant final approval until the zoning law has provisions that allow the city to hold Pike responsible for violating those standards. Attorneys for Pike and the city have drafted suggested zoning changes, which first came before the council Monday night.

But those proposed changes are vague and confusing, according to Tim Bachelder, who chairs the Neighborhood Working Group, an organization that represents residential neighbors to the quarry.

In a five-page letter to the council, Bachelder cited 11 separate sections of the proposed new language that he said either didn’t match the consent agreement or contained vague or conflicting terms that need to be spelled out before becoming a permanent part of the city’s zoning laws.

“It’s just good zoning practice,” he said. “This is your opportunity to fix it.”

Warren Knight, a member of the family that owns Smiling Hill Farm, also spoke Monday night, renewing his arguments that the consent agreement was drafted in private, and that the public didn’t have a chance to weigh in on any of it. He also said the council only needed to make sure the zoning law and the consent agreement match. That could, he noted, mean that the consent agreement, not the zoning law, needs to change.

“What we have here tonight, I can see, is the tail wagging the dog,” he said.

City attorney Natalie Burns cautioned the council not to make major changes to the proposed zoning amendment, since that could potentially jeopardize the consent agreement’s final approval.

“It certainly would create an issue in terms of the consent order,” she said.

Attorney Sigmund Schutz, who represents Pike, agreed.

“If there are substantive changes, this upsets a very carefully crafted agreement,” he told the council Monday.

In response to other criticisms, Schutz noted that throughout the process of crafting the consent agreement, there were numerous public hearings before the City Council, and many hearings in open court on the matter.

“It’s hard to imagine more opportunity for public input,” he said.

Schutz noted that no legal agreement is perfect, and that it was impossible to address all of the needs of all parties on all sides. While he mentioned no one by name, Schutz accused Pike’s critics of deliberately stonewalling in the hopes of eventually forcing the quarry to shut down completely.

“That is the agenda of some of the opponents of this quarry,” he said.

Councilor Victor Chau objected to the proposed zoning changes more strongly than any councilor Monday, echoing Bachelder’s concerns that the language was too vague for the public to understand.

“I don’t know how we resolve this,” he said. “It should be in the language, not implied.”

Other councilors, including Mike Sanphy, voted for the changes, but said they wanted them to be more clear before they voted yes a second time.

“We need to fine-tune this ordinance,” he said.

Even Emery, who criticized the proposed changes, voted yes because, he said, “I also do not want to create further delay.” He said he expects the proposal will have clearer language by Oct. 15.

Council President Brendan Rielly said he was confident that parties representing both sides of the issue could work out a solution between now and Oct. 15, considering how far the matter has come since 2009.

“This is an issue that nobody thought could be solved,” he said.

The council voted 6-1 to approve, with Chau casting the only negative vote. Between now and Oct. 15, according to city officials, representatives from the Neighborhood Working Group, Pike, Idexx, Smiling Hill Farm and the city will work on fine-tuning the proposal.

In a statement on Tuesday, Bachelder, speaking for the group, praised the council’s actions, saying councilors “clearly heard the residents’ concerns last night and will consider the minor changes we suggested that we believe remove the ambiguity embedded in the (performance) standards.”

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