Freshwater to consider limit on quarry noise; Board wants outside expert review

MOUNT DESERT — In an effort to appease the neighbors, Freshwater Stone, the company seeking a license to resume quarrying at a granite quarry in the village of Hall Quarry, has agreed to set a limit on the level of noise caused by the cutting of stone.

But it remains to be seen whether the Planning Board, which will decide whether to grant the license, will find the proposed noise limit acceptable.

Freshwater leases the one-acre quarry from Harold MacQuinn, Inc. Together they have proposed that the Planning Board impose certain conditions on the quarrying license, including construction of an earthen berm around the edge of the quarry, with trees planted on top of the berm, to act as a sound buffer. They also propose placing a three-sided, 10-foot-tall portable sound barrier “between any drill and the nearest homes.”

The companies said they would adhere to “other best industry practices for noise attenuation” including using “new or updated equipment or by installing mufflers recommended by the manufacturer.”

The companies also have proposed limiting quarrying to 65 days a year and refraining from drilling or sawing granite during July and August.

In meetings over the past three months, the Planning Board has heard from sound experts hired by both the license applicants and neighbors who oppose the granting of a quarrying license. Board members said at their meeting last Wednesday that, even after hearing the experts’ testimony and reviewing all the documents presented, they still weren’t sure whether the sound-suppression measures proposed by Freshwater Stone would be adequate.

“I’m not convinced they are using the best means,” board member Dave Ashmore said. “I’m not qualified to determine that, and I think we need an expert to tell us.”

The board voted to have their attorney, James Collier, ask an independent sound expert to quote a price for reviewing Freshwater’s proposals and providing an opinion on whether those measures are in keeping with the quarrying ordinance’s requirement that noise be mitigated by the “best practicable means.”

While Collier is doing that, Freshwater officials are to decide on the degree of noise — the decibel level at the property lines — that they would voluntarily agree not to exceed.

When the Planning Board meets next, at a date to be determined, members are expected to decide whether to retain the independent sound expert to review Freshwater’s proposed license conditions, including a specific maximum decibel limit.

The board’s decisions last week on how to proceed came following the end of the months-long public hearing on the quarrying license application. The last three sessions of the hearing focused exclusively on the most contentious issue: noise. Before the hearing was closed, several Hall Quarry residents took the opportunity to re-state their opposition to quarrying in their neighborhood.

Resident Charlotte Singleton said she had a simple question for members of the Planning Board: “Would you move into Hall Quarry and invest your income, your savings, whatever assets you have in property there if this quarry is allowed to operate? You would be, in some cases, maybe 25 feet from this quarry, and it would be with you every single day.”

Other residents talked about the negative impacts of quarrying on the health and quality of life, as well as on their property values.

Citing Freshwater’s assertion that it would use every practicable means to reduce noise, Hall Quarry resident Steve Krasinsky asked, “How do we know we can trust the applicant to do what they say they will do? And what if they do and those noise [suppression] measures turn out not to be enough? What recourse would we have?”

Ed Bearor, the attorney representing Freshwater and MacQuinn, addressed that question in a Nov. 15 memo to the Planning Board. Granting the quarrying license “would not leave the opponent neighbors without a remedy” if they feel Freshwater’s noise reduction measure are insufficient, the memo read.

“Abutters who believe that [noise from the quarry] interferes with their use and enjoyment of their property could bring a civil action alleging a private nuisance.”

Bearor added at last week’s Planning Board meeting that, if a quarrying license is granted, the companies would have to apply for a renewal in five years.

“If there are problems, if you have imposed conditions that we aren’t meeting, then we would have to pay the piper,” he told the board. “You’re probably going to deny our renewal.”

The town’s quarrying ordinance states that a quarry operator must use the “best practicable means” to limit noise. Bearor called that “indecipherable” and “impermissibly vague.”

“I am very confident that, if challenged, this section [of the ordinance on noise] would be overturned,” he told the Planning Board. “My concern is that if you deny this application on the basis that we don’t meet this particular noise standard, there will be a long and expensive appeal, and the standard, I think, will be found void for vagueness, and you’ll have no [noise] standard at all.”

In that case, Bearor said, Freshwater would not have to implement any of the noise suppression measures it has proposed.

“Would we? Perhaps. But we wouldn’t have to. And you can’t enforce it. It’s not required of us if the ordinance is deemed invalid.”

Dan Pileggi, the attorney representing some of the quarry opponents, countered that whether or not the noise standard in the ordinance is enforceable is not the Planning Board’s concern.

“You have to apply the ordinance as you find it,” he told the board. “You have to apply the standard the best way you can.”

Collier, the Planning Board’s attorney, said he agreed with Pileggi that the board should “presume that the ordinance is lawful.”

When Planning Board members began talking about hiring an independent sound expert to review Freshwater’s proposed sound suppression measures, Bearor said, “We’re not paying for it.”

But Collier cited a section of the ordinance that states the board may require a quarry owner or operator “to cover the cost of an expert review” of a license application if the board feels that is “necessary to protect the general welfare of the town.”

If the board wants an independent technical review of Freshwater’s application and Freshwater refuses to pay for it, Collier said the board would have no choice but to deny the application for a quarrying license. Freshwater could then appeal that denial to the town’s board of appeals.

Bearor maintained that the Planning Board, not some outside expert, should decide whether Freshwater’s plans for limiting quarry noise meet the requirements of the ordinance.

“This is more of a matter of interpreting the ordinance, and that’s your job,” he told the board.

But later, after conferring with Freshwater officials, Bearor said that if the Planning Board wanted to request a proposal from a sound expert to review Freshwater’s application “and if we can find out how much that’s going to cost, maybe we would agree to that.”

Planning Board members at one point raised the idea of imposing a maximum decibel level on quarrying activities to ensure that neighbors would not be exposed to excessive noise. But Bearor objected, saying, “You can’t simply pick a decibel level. The ordinance does not permit the board to set its own numerical standards, as much as people might like that to be the case.”

Collier agreed, telling the board, “You would be going down a dangerous road if you set a decibel level. That would very likely be overturned on appeal.”

In imposing conditions on a quarrying license, “You have wide latitude,” Collier said. “But that doesn’t mean you can be unreasonable or irresponsible.”

He added that whatever conditions the board chooses to impose on a quarrying license should be enforceable. Otherwise, he said, “It’s not much good.”

Dick Broom

Dick Broom

Reporter at Mount Desert Islander
Dick Broom covers the towns of Mount Desert and Southwest Harbor, Mount Desert Island High School and the school system board and superintendent's office. He enjoys hiking with his golden retriever and finding new places for her to swim. [email protected]

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