Quarry saga continues as judge sides with MacQuinn

MOUNT DESERT — An appeals court judge has ordered the planning board here to reconsider its 2017 finding that Harold MacQuinn, Inc. and Freshwater Stone and Brickwork, Inc. were ineligible to apply for a license to operate a granite quarry in the village of Hall Quarry.

Judge Michael Duddy of the Maine Business and Consumer Court wrote in his Oct. 12 decision that the planning board “erred as a matter of law” in basing its decision on provisions of the town’s land use zoning ordinance (LUZO) rather than on the quarrying licensing ordinance.

“This case requires the Court to reconcile the seemingly inconsistent provisions of two municipal ordinances,” the judge observed.

The planning board must now reconsider MacQuinn’s eligibility for a license unless the board of selectmen elects to appeal the judge’s decision to the Maine Supreme Judicial Court.

There were two core issues in the case. First was whether the LUZO or the quarrying ordinance takes precedence. Second, if it was the LUZO, then the key question is whether the removal of stone from the quarry is a grandfathered use.

MacQuinn has maintained that it is grandfathered because, although the cutting and removal of stone occurred sporadically for a number of years, it was frequent enough to satisfy the requirements of the LUZO.

But the two couples who live nearest the quarry, supported by others in the neighborhood, argued through their attorney that the quarry was dormant for so long that it did not qualify for grandfathered status and, thus, was not eligible for a license. The neighbors objected to what they claimed was an unacceptable amount of noise, dust and other disturbances caused by quarrying.

Six years ago, in November 2012, voters approved a six-month moratorium on “mineral extraction,” which the planning board had decided four months earlier included “quarrying.” During that moratorium, town officials wrote a quarrying licensing ordinance, which was enacted in July 2013.

At the same time, voters amended the LUZO to state, “Quarrying activities are regulated by the Town of Mount Desert Quarrying Licensing Ordinance.”

In June 2014, nearly a year after the quarrying ordinance was enacted, MacQuinn and Freshwater applied for a license to operate the quarry.

Three months later, the planning board concluded that the quarry was “a lawful, nonconforming pre-existing use,” and, therefore, MacQuinn was eligible to apply for a quarrying license.

But in June 2017, after nearly three years of on-again-off-again public hearings, the planning board reversed that decision. It found, on a 4-2 vote, that MacQuinn had not met the LUZO’s standard for continuous quarry operation. Because of that, the board said, quarrying at the MacQuinn property is “not a grandfathered use, thus (it) is not an existing active quarry and [MacQuinn] has no standing to apply for a quarrying permit.”

MacQuinn and Freshwater appealed the planning board’s decision to the town’s Zoning Board of Appeals, which voted 3-2 in October 2017 to uphold the decision.

But Judge Duddy ruled that the planning board should have based its decision on provisions of the quarrying ordinance, not the LUZO.

“In its analysis, the planning board never mentioned, considered or referred to the (quarrying licensing ordinance),” he wrote.

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]
Dick Broom

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