WESTBROOK – The lawyer representing residents of Westbrook’s Birdland neighborhood wants to be heard before a judge renders a decision regarding the city’s consent agreement with Pike Industries.

Attorney David Lourie is representing the Birdland Neighborhood Alliance in a lawsuit against the city over a consent agreement that would allow Pike Industries to operate its Spring Street quarry near the neighborhood.

The lawsuit, filed Oct. 7 in Cumberland County Superior Court, alleges the consent agreement violates city zoning requirements and the state constitution. The lawsuit asks the court to find the agreement unconstitutional and invalid, and to award members of the neighborhood alliance costs and attorneys’ fees for pursuing litigation.

“Nothing in the lawsuit is at all challenging the content of what the agreement said,” said Cathleen Thornton, Birdland Neighborhood Alliance president. “The lawsuit has to do with the process by which the consent agreement was reached.”

The group was officially incorporated on Oct. 6 as a mutual benefit nonprofit organization, according to Thornton, a 28-year resident of 24 Finch St.

She said the Birdland neighborhood, so named because its streets are named after birds, has “always been a strong neighborhood in response to many issues within the city,” but given the proximity of the Pike issue, residents determined it was time to become more organized.

“We have been concerned that we were not seen as stakeholders,” Thornton said. “The group feels that it’s reasonable for citizens to raise questions about the government. That’s exactly what we’ve done in this complaint.”

Thornton declined to comment on the content of the agreement. She did say that some of her neighbors have felt the blasts and suffered damage to homes.

“The use, value and enjoyment of the property of members of Birdland Neighborhood Alliance is adversely affected by the Order and Agreement to allow mineral extraction and blasting to be conducted where prohibited by the Westbrook Land Use Ordinance,” the lawsuit states.

Lourie said he hopes a judge will hear his take on the case before deciding on a consent agreement aimed at avoiding a trial between Pike and Westbrook concerning Pike’s efforts to continue operations at the Spring Street quarry. He also has filed a motion seeking the consolidation of the Birdland case with the lawsuit involving Pike and the city.

The agreement was subject to revisions before the City Council approved it in September. Pike made concessions in accepting the revised agreement, including limiting production blasts to eight times a year.

However, some neighboring businesses and residents are unhappy with the approval. Lourie said there will be “a lot more” than eight blasts a year, when safety blasts and road blasts are factored into the equation.

“It’s not just eight blasts, and if it were, it would still be objectionable,” he said.

In the lawsuit, Lourie claims the agreement sidesteps city zoning requirements.

The amended agreement was first released to the public only an hour before a special City Council meeting called to approve it on Sept. 8, according to the lawsuit.

“The City never conducted any formal ‘public hearing’ inviting the public to discuss the proposed zoning amendment as is required by the Zoning Enabling Act,” the lawsuit states.

The lawsuit further alleges the agreement violates the separation of powers article of the Maine Constitution by asking a judge to legislate zoning changes.

“The real issue is whether a municipality can ask a judge to legislate zoning,” Lourie said.

The council’s decision authorizes the city to consent to a court judgment granting Pike the right to conduct mineral extraction activities, including explosive blasting and the crushing of rock.

Lourie called out city officials on the decision, saying that “just because you don’t have the guts to do it legislatively” does not mean it should be accomplished through the judicial system.

City Administrator Jerre Bryant was not surprised when he found out about the Birdland lawsuit. The only recourse for those dissatisfied with the consent agreement was to file suit, he said.

Bryant said it has been difficult to craft a compromise when some involved simply want the quarry to disappear.

He said this latest lawsuit is an additional complication and underscores the difficulty of finding a compromise.

“We serve everyone in the community. We certainly continue to work with everyone on this and other issues,” he said.

The Birdland neighborhood comprises 40 to 50 single-family homes in the southern part of the city. It was once a rural residential neighborhood, but over time became surrounded by commercial development.

The city previously determined that quarrying on Spring Street is illegal because Blue Rock, the company from which Pike bought the quarry in 2005, failed to meet conditions of its 1968 quarry permit. That led Pike to file suit, arguing it was unfair for the city to deny a right to operate now when it had knowingly allowed quarrying at the site for decades.

Birdland residents are not the only ones dissatisfied with the agreement. Three companies are interveners in the lawsuit between Pike and the city, and only one of them approves of the consent agreement.

Idexx Laboratories, a biotechnology firm located near the quarry at the Five Star Industrial Park, was part of a motion to delay a trial over this matter, but two other neighboring businesses continue to oppose the compromise.

During the summer, the city, Pike and Idexx worked out the consent agreement. The other interveners in the case, Artel Inc. and Smiling Hill Farm, agree with residents who say they were shut out of the negotiations.

Artel, which makes instruments for precise measuring of liquids, and the farm, which wants to build a 20-acre glass greenhouse, worry quarry operations would damage their businesses.

Artel filed a motion in Maine Business and Consumer Court asking a judge to reject the consent agreement. According to Lourie, the judge has rejected Artel’s motion.

Superior Court Justice Thomas E. Humphrey is expected to render a decision on the consent agreement soon.