September 23, 2017
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Judge rules in favor of Eddington in contractor’s lawsuit over quarry moratorium

By Nok-Noi Ricker, BDN Staff
Kevin Bennett | BDN | BDN
Kevin Bennett | BDN | BDN
Eddington residents gathered to speak against a proposed quarry at the Eddington Elementary School in February 2014.

EDDINGTON, Maine — A judge on Friday decided the town acted legally when it enacted a moratorium on quarry construction that affected a project proposed by a Hampden-based earthwork contractor.

Hughes Bros. Inc. filed a two-count lawsuit in April 2014 in Penobscot County Superior Court that claimed town planners and selectmen met illegally in January 2014 concerning a possible moratorium affecting the contractor’s project. Hughes also wanted a moratorium that went into effect last April deemed illegal.

Town Manager Russell Smith said Friday that he was pleased with the decisions made in the town’s favor by Superior Court Justice Michaela Murphy, who presided over the Business and Consumer Court case. He said planners have spent the last year working on the land use ordinance concerning quarries to improve rules for safety, noise and dust.

“They did have something [on the books] before but it didn’t have the protections that are in here,” Smith said of the new draft rules, which still must be presented to residents for approval.

A number of residents attended the Feb. 27 public hearing held by the planning board on the proposed project and at the April 1 public hearing about whether to hold a moratorium vote. A citizens’ petition asking for the vote started the process. The moratorium was approved by residents on April 8 and was extended by another 180 days in September.

“Hughes Bros. was disappointed with the court’s decision and is still in the process of evaluating its options,” Bill Devoe, a lawyer who represents the Hampden earthwork contractor, said Monday.

“The town’s decision to enact a moratorium on quarries, in the middle of considering Hughes Bros.’ application, had the effect of unfairly singling Hughes Bros. out,” Devoe said later.

Hughes’ application, for a 5-acre quarry that could possibly grow to 20 acres, was put on hold when the moratorium was put into place.

“The imposition of the moratorium has no doubt created a financial burden and at least uncertainty for the Plaintiff,” Murphy wrote in her eight-page decision. “Such burdens and uncertainty are likely byproducts of any moratorium, however, which is why the Legislature has strictly time-limited them.”

Hughes Bros.’ lawsuit claimed that a Jan. 23, 2014, joint meeting in executive session between town selectmen and planners was illegal, that there was an inadequate motion and a separate inadequate vote to move into executive session, that the joint meeting was a violation of the Freedom of Information Act and that the subject matter of the meeting — the moratorium — was outside of Maine’s open meeting law. Hughes also claimed that the decision to enact the moratorium was made in executive session.

Murphy ruled in Eddington’s favor in all the company’s claims.

“The Court trusts that the town understands that the moratorium cannot act as a permanent end-run around fair consideration of the Plaintiff’s permit application,” Murphy said. “The extended moratorium will soon expire, and the Plaintiffs can press forward at that time.”

The last official action with Hughes Bros.’ second application happened in April, when planners asked Hughes Bros. for a noise study for the quarry project.

Hughes’ first application, for a 10-acre quarry, was denied by the Eddington Planning Board in October 2013, after a two-hour review.

Hughes modified the entranceway and made other adjustments to its second application to appease nearby residents.

“In its approach to the town Hughes Bros. has been open and respectful throughout,” Devoe said. “Its approach was consistent with the town’s then-existing zoning framework.”

“At this point we will study the court’s decision and decide what our next course of action will be,” he said later.

Planners continue to work on the amendment to the land use code concerning quarries, Smith said.

“The planning board will need a couple more meetings to wrap up the ordinance, it will then be reviewed by the town’s attorney and then the planning board will hold a public hearing to get comments,” Smith said.

Planners will use the comments to make any adjustments before presenting the draft document to town selectmen for placement on the annual town meeting warrant. A second public hearing will be held when selectmen host one to get comment on all the warrant articles, Smith said.

“It’s going to be more than several pages,” he said of the draft changes.

 


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