AUGUSTA, Maine — The Maine Supreme Judicial Court must decide whether Eddington illegally enacted a mining moratorium to prevent a Hampden earthworks company from operating a quarry or if the case is moot because the moratorium has expired.
Justices heard oral arguments Thursday at the Capital Judicial Center in the appeal of Hughes Bros. Inc.’s lawsuit against Eddington over the town’s handling of the firm’s efforts, beginning in September 2013, to operate a ledge quarry on Fox Hill.
In April 2014 at a special town meeting, a retroactive, six-month-long moratorium on quarries was passed so that a revised ordinance governing mineral extraction operations could be crafted, according to court documents. The moratorium was extended for an additional six months.
The addendum to the existing land use ordinance was passed 139-56 in April 2015, according to a previously published report. It set performance standards for mineral extraction activities related to noise, dust, stormwater, blasting, groundwater, wildlife habitat, reclamation and setbacks.
The new setbacks are 15 times the state’s regulations and five times greater than almost all municipalities in Maine.
Hughes Bros. sued Eddington on April 1, 2014, alleging that the town held an illegal executive session attended by selectmen and members of the planning board, improperly withheld records in violation of the state’s Freedom of Access Act and applied the moratorium illegally to Hughes Bros.’ pending application to operate the quarry.
The provisions of the new ordinance are not being challenged in the appeal.
In January 2015, Superior Court Justice Michaela Murphy, presiding over the Business and Consumer Docket, ruled in the town’s favor, after earlier ordering officials to release some documents. Murphy found that the joint executive session was convened properly and the moratorium was enacted legally.
Hughes Bros. appealed the judge’s ruling and the town cross-appealed Murphy’s order to release documents that town officials claimed were covered by attorney-client, work product and deliberate process privileges.
At oral arguments Thursday, Chief Justice Leigh I. Saufley asked Bangor attorney William Devoe, who represents Hughes Bros., why members of the planning board and selectmen should not have met with legal counsel.
“Isn’t there all the more reason for them to meet together so that they understand their roles in the process?” she asked.
“It would have been OK for the planning board to meet with counsel but not while strangers to the board were present,” Devoe said.
Devoe told justices that a planning board meeting with selectmen to discuss legislation aimed at delaying and then killing a proposed project would be akin to the Maine supreme court meeting with legislators to alter the outcome of an appeal pending before the justices.
Charles Gilbert, the Bangor attorney who represents the town, told the court Thursday that the moratorium was enacted properly and all votes on its enactment and extension were taken in public.
“It was appropriate to put in the moratorium so there would be time to get the ordinance right,” he said.
Gilbert also argued that Hughes Bros.’ appeal is moot because the new ordinance ended the moratorium the company is challenging.
There is no timetable under which the court must issue a decision.