MOUNT DESERT — By a vote of 3-2, the town’s Zoning Board of Appeals decided last Thursday that the Planning Board erred in deciding that Harold MacQuinn Inc. was not eligible to apply for a license to operate its granite quarry in the village of Hall Quarry.
But the three board members who voted in the majority could not agree on a rationale for that decision to be included in a formal motion upholding MacQuinn’s appeal. So, the board is to meet again on Thursday, Oct. 26, at 5 p.m. in the Town Hall meeting room to try to resolve the issue.
At the meeting last week, a key question was whether the Planning Board was correct in considering the requirements of both the quarrying license ordinance and the broader land use zoning ordinance (LUZO), which is more restrictive. A majority of appeals board members said that only the quarrying license ordinance was applicable.
In June, nearly three years after ruling that the quarry was a grandfathered use and, therefore, MacQuinn could apply for a license, the Planning Board reversed that decision.
MacQuinn and Freshwater Stone & Brick Work, which leased and began operating the quarry in 2010, appealed that decision. Their attorney, Ed Bearor, told the appeals board that the quarry ordinance, which voters approved in 2013, states that the owner of any “active” quarry may apply for a license.
“I don’t think there’s any question it was an active quarry operation,” he said. “There were no others in town, just that one. This ordinance was tailor-made for Mr. MacQuinn’s property.”
The MacQuinn quarry was the only one in Mount Desert that had been considered to be “existing” at the time the ordinance was passed. But that has been the subject of intense debate.
Attorney James Collier, representing the Planning Board, said that board decided a quarry did not only have to be active, but “lawfully active.” He said that meant it must be grandfathered as a “lawfully pre-existing non-conforming use.”
The town’s LUZO says any use of property that is not permitted under the ordinance but existed before the ordinance was adopted may be grandfathered – that is, it is allowed to continue – provided the use has continued without a break of more than 12 months.
Hall Quarry residents who oppose the granting of a license maintain that, prior to 2010, there were periods of inactivity that lasted more than 12 months.
Attorney Dan Pileggi, who represents two couples who live near the quarry, Peter and Judy Aylen and Gerald and Laurie Shencavitz, said the quarry ordinance regulates only the licensing and operation of quarries that meet the qualifications for licensing. He argued that the MacQuinn quarry does not meet those qualifications because, under the LUZO, it is not eligible for grandfathering.
“The Planning Board had ample evidence that before 2010 there were years-long gaps when extraction as it is defined in the (LUZO) didn’t happen,” Pileggi said.
He argued that the Planning Board should have considered the requirements of both the LUZO and the quarry ordinance in deciding whether MacQuinn could apply for a license.
Bearor countered, saying, “The quarrying license ordinance is the only ordinance that is in play here.”
Three of the five appeals board members who were present at the meeting agreed.
“This is what I have to work with,” board member Kevin Walls said, referring to the quarry ordinance. “When I look at the LUZO, it refers me to the quarrying license ordinance. The town adopted it for this reason, so that now it can be a licensed quarry.”
Board members Julianna Bennoch and Jerry Suminsby agreed.
Strongly disagreeing was board member Jim Bright, a former chairman of the Planning Board.
“When you’re going to grant a license, you have to look at the rest of the LUZO to see if the quarry is legal,” he said. “That’s how you get back into the grandfathering. And I have heard nothing here today that has shown me they were grandfathered.
“I think you’re being asked to ignore the other ordinances in town,” Bright continued, addressing his fellow board members. “And I don’t think you can do that.”
Appeals board Chairman Bill Ferm agreed.
“I can’t say the Planning Board erred in looking at the LUZO when it was evaluating this application,” he said.
If a majority of appeals board members do, ultimately, decide that the Planning Board erred in saying MacQuinn was not eligible to apply for a quarrying license, then the matter will go back to the Planning Board for consideration of the application.