2016-06-10 / Front Page

Town, Dubois near accord

By Duke Harrington Staff Writer

ARUNDEL — Following an hour-long executive session Monday, selectmen voted unanimously to sign a consent agreement with Dubois Livestock & Excavating Inc.

The town will now be allowed yearly inspections of the six-acre site that has been the source of complaints of rancid odors. Yet the new agreement may have little impact on the town’s ability to control the odors.

“I don’t think the law requires zero stink,” said town attorney Leah Rachin. “It’s about what’s reasonable if they’re complying with the terms of their state permits.”

“We’re hoping the smell, such as we experienced last year, will be dissipated as a result of best management practices,” Town Manager Keith Trefethen said.

The deal, drafted by retired Superior Court Justice Robert Crowley following a full day in mediation May 4, still has to be signed by sitting Justice John O’Neil before it becomes official. However, Rachin said the Dubois family has signed off on the plan, which settles two lawsuits and six other pending issues before the court involving the composting operation at 2 Irving Road.

“We’re pleased that we’re putting this behind us,” Trefethen said. “I think we’re confident. We have a court order now. So, hopefully that carries perhaps a little more weight.”

“As with all consent agreements, nobody gets everything they want, but I feel it’s a fairly good settlement for the town,” Selectman Velma Jones Hayes said.

Still, this will not be the first court order issued in the case, just the first to which the Dubois family has put its collective name.

“They’ve agreed in principle,” Rachin said. “There was one very little piece in here that we had disagreed on, but I don’t think they are going to back out.”

According to Trefethen, talks with the Dubois family, which once threatened to sue his predecessor over public comments he made about the case, and who walked out of a planning board hearing last fall, went well.

“Very much so,” he said. “They were very good to deal with.”

The town’s attorney had anther perspective.

“I don’t think any process where you’re in litigation is necessarily amicable, but they had an attorney who was involved and we did a fine job of hammering out something, hopefully, both sides can live with,” she said.

Arundel thought its conflict with Dubois was resolved in November 2014 when the town ordered it to comply with local ordinances. The company has been operating without town permits since 2011.

Dubois has run a composting business on its 6-acre site since the early 1980s and has argued its operation is a “grandfathered use” despite a zoning change made by the town several years ago. Dubois first obtained a conditional-use permit from the town in 2000, allowing it to conduct commercial composting operations in an R-4 residential zone. 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 it 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.

Much of the protracted legal debate over Dubois’ composting has centered on what constitutes a “farm.” That question was complicated in 2014, when an amendment to the Maine Agriculture Protection Act went into effect. It added manure and compost to the statute’s definition of “agricultural products.”

After the town pulled Dubois’ 2011 permit, upholding the decision at the board of appeals level in January 2013, the family appealed in Superior Court. That led to the November 2014 ruling, in which 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 the order, Dubois representatives continued to refuse municipal inspectors access to the site, although they 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 – to deem Dubois’ new application incomplete, because “numerous items were not submitted.”

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 family members and representatives on hand walked out, saying they understood it was called to take public comment on the case, not to conduct an actual hearing on his company’s administrative appeal.

Less then two weeks after the appeals board walkout, complaints of a rancid odor emanating from the Dubois property set phones ringing in the town office from as far as Old Orchard Beach.

However, what was done to cause that odor, and if it was a violation of any kind, remains unclear to this day. Trefethen said at the time he believed Dubois turned some of the compost it makes and spread it out on its fields. But without being able send an inspector, it could not be determined if Dubois spread uncured compost, or took in more than the 29,000 tons of raw product, including shellfish entrails, allowed annually.

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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