MOUNT DESERT — When members of the Planning Board met last Thursday, they thought it was just for the formality of signing off on their Feb. 9 decision to deny Harold MacQuinn Inc. and Freshwater Stone a license to resume quarrying in the village of Hall Quarry.
But after wrestling with the issue for eight years, they might have known the end wouldn’t come that easily.
They did ultimately vote 5-0 to approve the wording of the “final written decision” that the board’s attorney, James Collier, had prepared. But it took them an hour and a half to get there because attorneys for some of the opponents of quarrying wanted the board to add a sentence to its decision.
The board had cited two reasons for denying the license: the incompatibility of quarrying with the surrounding residential area and an insufficiently binding easement for an access road over a portion of a neighbor’s property.
All along, Hall Quarry residents have cited the amount of noise generated by quarrying as their main reason for opposing the resumption of quarrying.
In October 2020, the Planning Board voted 3-2 that the noise attenuation plans submitted by MacQuinn and Freshwater met both industry standards and the requirements of the town’s quarrying ordinance.
Last Thursday, attorney Matt Manahan, who represents a couple who live across Somes Sound from Hall Quarry and say the sound of quarrying carries clearly across the water, asked the board to add a sentence to their written decision stating that the votes they have taken over the years on “performance standards” in the quarrying ordinance – including noise mitigation – were preliminary, not final.
His purpose was to say to a court – in the event MacQuinn and Freshwater appeal the Planning Board’s decision and the court upholds that appeal – that the case should be sent back to the board for reconsideration of noise mitigation and other performance standards.
Manahan said it should be made clear to a court that “those preliminary votes were just that, they were preliminary, so the court doesn’t misunderstand.”
Dan Pileggi and Roger Katz, attorneys for several Hall Quarry residents, agreed with Manahan.
“On several occasions, I think the board made it fairly clear that all of those individual votes on all of those individual criteria were subject to final votes,” Katz said. “Those final votes never took place. And it’s very simple just to acknowledge that in one sentence.”
But attorney Ed Bearor, who represents MacQuinn and Freshwater, vigorously objected, saying it was wrong to characterize any of the votes that were taken over the years as preliminary.
“Those are plainly votes that were thought about long and hard and carefully, and you chose not to go back and revisit any of those,” he told the board.
“At the last minute you’re being asked to say, ‘Oh, we didn’t really mean any of that.’ Well, that’s absurd. This is bizarre beyond imagination.”
Collier, the board’s attorney, urged the board not to add the sentence that Manahan proposed. He said the written decision should reflect only the votes that the board took Feb. 9 to deny the quarrying license.
“We’re not making findings on anything else, so we don’t have to say we’re not making findings on everything else,” he said.
“I also don’t want to specifically back the board into a corner by saying they’re not making findings. They never said they were or they weren’t. I’d like to leave it hanging. If the court sends this back to us, we can deal with it then and we won’t be locked in.”
After much discussion, the board voted to approve the written decision without the sentence Manahan requested.
If MacQuinn and Freshwater want to contest the Planning Board’s denial of a license to quarry, they have until April 26 to file an appeal with the town’s Zoning Board of Appeals (ZBA).
According to the description of “powers and duties” of the ZBA, the board can reverse a Planning Board decision “only upon a finding that the decision is clearly contrary to specific provisions of the applicable ordinance.” If the ZBA makes that determination, then it can send the matter back to the Planning Board for further consideration.
But if the ZBA upholds the Planning Board’s decision to deny the quarrying license, then MacQuinn and Freshwater may take their appeal to court.
Near the end of the Planning Board meeting last week, Chair Bill Hanley said,
“I am so proud of the board and the time and the commitment everybody has made into the thorough and dedicated review of this project over the last eight years. And if it goes to the court, so be it. But we have a tremendous history here of time investment, thought investment, and I stand by everything we’ve done to date on this.”