2014-11-14 / Front Page

Supreme Judicial Court sides with town

Issue was a composting operation at Dubois Livestock
By Alex Acquisto
Staff Writer

ARUNDEL – The Maine Supreme Judicial Court voted Tuesday to uphold a decision by York County Superior Court, which ruled against Dubois Livestock, Inc. and in favor of the town of Arundel.

The issue between the Randrick Trust, which owns Dubois Livestock, Inc., and the town arose after it was discovered the company was maintaining a compost operation on its 6-acre property on Irving Road.

The Agricultural Protection Act defines a farm as “the land, plants, animals, buildings, structures, ponds and machinery used in the commercial production of agricultural products,’” according to the appeal. The act defines “’agricultural products’ as including a variety of plant and animal products, and any plant, animal or plant or animal product that supplies people with ‘food, feed, fiber or fur,’ but does not expressly include compost, manure or similar products.”

The Dubois operation composts “horse and cow manure, horse and cow bedding and fish waste (including fish, shellfish entrails, shells and bones) none of which are generated on-site,” according to the appeal, which was heard by the Judicial Court in September.

Because the act defines the last three components separately, the court found that Dubois Livestock, Inc. does not qualify as a “farm” under the terms of the act. Dubois “does not produce ‘agricultural products,’ as defined by the Agriculture Protection Act,” read the appeal.

In other words, Dubois cannot, by law, cite protection under the Agricultural Protection Act because the operation does not qualify for protection.

“Even if the Dubois operation were a farm, the Agriculture Protection Act does not preempt the Town’s Ordinance,” read the appeal.

When referring to the court document from 2013, “The composting operation was deemed to be a solid waste processing facility by the Arundel Planning Board, a use not permitted in the R-4 zone. However, the facility was permitted at the time the processing facility opened.”

Because the Dubois family began the compost operation when the use was allowed -– before the town’s land use ordinance – the planning board granted the family a conditional use permit first in February 2000, and then reissued another permit in February 2011.

The permit included specific regulatory standards that the facility must adhere to, such as “providing the Town with bills of lading and an annual summary report documenting the amount of material processed at and shipped from the facility each year,” according to the appeal.

The permit also required the Dubois family to open their doors once a year to a code enforcement officer and town planner for inspection purposes, ensuring that the facility was in compliance with the conditional use permit.

The Dubois family failed to appeal within the allotted 30 days of the issuance of the 2011 permit.

The family, later, provided a letter from the Maine Department of Agriculture that validated the facility as an “agricultural composting operation,” according to the 2013 court document and the Nov. 4 appeal.

In 2011, Dubois refused to let town officials onto the property for the annual inspection, and the operation was subsequently issued a notice of violation. Dubois appealed the violation.

The Arundel Zoning Board of Appeals held a hearing in January 2013 on the matter.

“At that hearing, Dubois admitted that it refused to comply with the conditions imposed by the 2011 permit,” but it argued that “its appeal to the ZBA (Arundel Zoning Board of Appeals) was not time-barred because it raises a jurisdictional issue, which can be raised at any time; and the Town did not have the authority to regulate Dubois’s operation because section 8.10.B.1 of the Town of Arundel Land Use Ordinance is preempted by state law, specifically by the Maine Agricultural Protection Act and the Maine Hazardous Waste, Septage and Solid Waste Management Act,” according to the Nov. 4 appeal.

The Maine Supreme Judicial Court did cite “merits” of the appeal in their decision, such as the “timeliness” of the Dubois’ appeal.

The decision also deconstructs the Agriculture Protection Act as it “indicates to support the viability of agriculture in Maine by ensuring that farms employing best management practices are not deemed to be public or private nuisances or to be in violation of local law if they are in compliance with state and federal law.”

Town officials will meet with the town attorney this week to discuss “how to move forward,” said Todd Shea, town manager.

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