Editorial: What’s reasonable

When it comes to determining whether Freshwater Stone’s proposed operations in Hall Quarry meet the requirements in the town’s quarrying licensing ordinance regarding noise, members of the Mount Desert Planning Board are in a tight spot.

The board resumed consideration in August of Freshwater’s application for a quarrying license. The board had decided in 2017 that the applicant was ineligible to apply for the license, but in October 2018 the state’s Business and Consumer Court ordered the board to reconsider the application.

The Planning Board has been instructed to base its decision on the town’s quarrying licensing ordinance, which was adopted in 2013, rather than the land use ordinance. The latter was the basis of the board’s 2017 decision.

That ordinance contains no quantitative standard for what constitutes unacceptable noise from the quarry operation. Instead, the ordinance requires that an operator employ “the best practicable means of reducing noise.”

“Terms like best practice can lead to arguments,” one of the noise experts at the most recent hearing noted. He said there had been “a throwing up of hands” in the drafting of the ordinance and that the drafters had decided on a “do the best you can” kind of standard.

The discussion about noise from the quarry has included protests from neighbors about physical and psychological discomfort from industrial noise reaching their homes.

The board asked noise experts about what’s possible under existing noise management technology, but that raised the issue that the most extreme possible measures such as a buffering dome that could move with the drill would be cost-prohibitive and neither practical nor “practicable.”

How is the board to balance requiring protection for the residents without making unreasonable demands of the applicants?

In a 2000 decision, the Maine Supreme Judicial Court ruled that land use controls must answer the questions, (1) “What must an applicant do to obtain a permit,” and (2) “Under what set of facts should the [Board] grant or deny the application.”

The court carved out an exception to that standard when, in a 2009 case involving a proposed pier in Bar Harbor, it upheld the Board of Environmental Protection’s denial of a permit for the pier. But it did so by differentiating between state agencies and municipal boards. For the latter, the justices said, subjective standards are more problematic.

In the current quarry application in Mount Desert, board members are right to be wary. If they’re being asked to make it up as they go along, they’ve been put in an untenable position.

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