2015-10-23 / Front Page

Arundel odor raises a stink

Town weighs options as complaints from area residents pile up
By Duke Harrington Staff Writer

ARUNDEL — With folks from as far away as Saco and Old Orchard Beach raising a stink over an Arundel composting business, town officials say they will seek legal action to bring the farm into compliance with local regulations.

Dubois Livestock & Excavating Inc., located at 2 Irving Road, has a long history of both annoying its neighbors with the putrid smell of its operations, and wrangling with local officials over its refusal to be regulated, this despite a November 2014 court order that it submit to local ordinances.

“We believe the operation out there is still in violation,” Town Manager Keith Trefethen said on Monday. “They have, since 2011, when their application expired, been operating their business without a permit from the town of Arundel.

“We’re going to do our due diligence,” he added. “And we’re going to make every effort to ensure that we give them notice of these violations and give them the opportunity to correct them.”

And if Dubois does not avail itself of that opportunity?

“We’re going to go back to court,” Trefethen said. “We’re going to do everything we can to try and get compliance with our ordinances.”

Dubois has run a composting business on 3.1 acres of its six-acre site since the early 1980s.. They also raise pigs and rabbits, sell firewood, and solicit excavation and demolition services.

However, it was the composting that came under fire by the town as a non-conforming use following a zoning change several years ago.

Dubois first obtained a conditional-use permit from the town, allowing it to continue its composting operations in the town’s R-4 residential zone in 2000. That permit is due for renewal every three years and was most recently re-issued in February 2011. However, that renewal came with conditions set by the planning board, namely that Dubois allow annual inspections by Town Planner Tad Redway, and that by March 1 of each year submit a list of all materials, and the tonnage of each, taken in for composting during the previous year.

The Dubois family subsequently refused both conditions, claiming local permitting requirements for their operation were at odds with state law, which, they argued, holds jurisdiction.

Finally, Arundel pulled the Dubois permit, a decision upheld by the town’s board of appeals in January 2013 and appealed by Dubois in Superior Court.

In a Nov. 4, 2014 ruling, the courts sided with the town, saying local ordinances can be enforced because they are not stricter than, or inconsistent with, the state Solid Waste Act.

However, despite a court order to submit to Arundel’s permitting process, Dubois has continued to refuse municipal inspectors access to the property, although it did eventually file for a new permit.

At an Aug. 13 meeting, the planning board voted 6-0 — with board member John der Kinderen recusing himself as an abutting property owner — deeming Dubois’ application incomplete, because “numerous items were not submitted.”

“There was a plethora of information they should have included in their application, that they did not,” Trefethen said.

That decision was disputed within the 30 days allowed by state statute. However, at a Sept. 29 hearing before the Arundel Board of Appeals, Dubois spoiled its chance at a hearing.

At that session, Sol Fedder, an officer of Randrick Trust, the legal owner of the Dubois family business, complained he never got notice of the meeting, and that, regardless, he understood it was called to take public comment on the case, not to conduct the actual hearing on his company’s administrative appeal.

“If we thought we were supposed to be prepared for a hearing we would have been prepared, because we’ve done this dozens of times, in relation to getting ready and coming up and presenting,” Fedder said. “But when someone says it’s a public hearing, we come in here expecting to hear somebody else bitch about us.”

“I don’t know what you’re talking about,” board Chairman Norm Cloutier said. “This is how we’ve done it for the 11 years I’ve been here. There’s no such thing, in front of the board of appeals, where the public comes in and voices their opinions on an appeal and then we come back another day for a hearing [and decision].”

“That’s nice to find that out, because no one has told us that,” Fedder said. “The problem is, the set procedure of the planning board and other boards are not etched in stone in this town. That’s one of the reasons we’re before you today.”

When reminded that Dubois has “been before this board in the past,” and that “there hasn’t been a departure from procedure,” Fedder, along with Randy and Rick Dubois and other members of the family, got up and left the hearing.

“That’s really unfair,” Fedder said on his way out the door. “To look at this [meeting] notice and tell us, ‘our past rules,’ is preposterous. Nothing else in this town runs that way.”

That left the board a bit stymied over how to proceed.

“We’ve had them come before us and do exactly the same thing,” said planning board Chairman Richard Ganong. “They’ve walked out of a meeting and pulled their permit and said, ‘No, we’re not going to submit it right now.’

“We’ve been dealing with this for a year. We just want to get this put to an end,” Ganong said, urging the appeals board to reach a decision, “one way or the other.”

Instead, the board decided that because all Dubois representatives had left the meeting, while proclaiming themselves unprepared to proceed, they had, in effect, withdrawn their appeal. And, because more than 30 days have passed since the original planning board decision, Dubois cannot file for a new hearing.

“They’ve walked out, their appeal’s been withdrawn, and if they’ve blown their statutory period of time in which to file, they’re going to have to live with that,” Cloutier said.

Less then two weeks after the appeals board walkout — on or about Tuesday, Oct. 13, when complaints of a rancid odor emanating from the Dubois property set phones ringing in the town office — something was done on the site that may or may not have been a violation.

However, what was done, exactly, remains unclear.

Trefethen said it’s believed Dubois turned some of the compost it makes and spread it out on its fields. But the extent of any violation, whether it included spreading uncured compost, or taking in more than the 29,000 tons of raw product allowed annually, including shellfish entrails, remains unknown.

“We still have not been allowed onto this property,” Trefethen said. “Even DEP [the Maine Department of Environmental Protection] was not provided access to the property last week, when they investigated complaints.”

That means Arundel officials have no idea if the smell that’s driving so many locals to distraction is a simple result of doing business, considering the business Dubois is in, or if the odor is indicative of a rules violation beyond simply operating without a permit.

“We have some assumptions and we have some aerial photos that indicate to us that they’ve expanded their business far more than the local approval that was last granted to them, but we have not been able to investigate that to determine what, if any ordinance provisions they’ve violated,” Trefethen said.

“Generally, once a court of law has decided what the rule is, and someone has been given a court order, they generally go along with that, but in this particular case, that is not what has happened,” Trefethen said. “Although we had a successful outcome in the law court, they have decided to ignore that.”

Much of the protracted legal debate over Dubois’ composting has centered on what constitutes a “farm.” That question was complicated on Monday, when an amendment to the Maine Agriculture Protection Act, adopted earlier this year, went into effect. It adds manure and compost to the statute’s definition of “agricultural products.” Fedder has said in some recent media reports he feels the amended law should exempt Dubois from Arundel ordinances, and plans to argue as much in court in any new legal action.

However, on Monday, Randy Dubois declined to answer questions from The Post, saying he would instead email a written statement, and then respond to any follow-up questions.

But apart from saying, “We reject Arundel’s claims that we are not in compliance with all regulations that apply to us,” that statement declined to address the issue further.

“We do not have time today to provide real, competent responses to your multiple questions,” it read. “Please do not contact us today for any telephonic follow-up.”

Town Planner Tad Redway also did not respond to multiple voice mail messages left Monday requesting comment.

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