Poland Spring parent company appeals court ruling

Truck-filling station in East Fryeburg now in hands of state supreme court

By David Carkhuff, assistant editor
August 29, 2006

FRYEBURG —Nestlé Waters North America filed an appeal in Oxford County Superior Court Friday to challenge the court's ruling that a Poland Spring truck-filling station in East Fryeburg needs to go back to the planning board for additional review.

Superior Court Judge Roland Cole heard arguments in the controversial case of Nestle Waters North America v. Inhabitants of Town of Fryeburg on July 21 and rendered a ruling on Aug. 9. Cole ordered the Fryeburg Planning Board to "consider whether this much truck activity complies with the requirement that businesses be low impact in the rural residential district."

Poland Spring wants to pump water out of the ground in West Denmark, pipe it to a silo in East Fryeburg and load the water there into tanker trucks for transport to bottling plants. Roughly 50 trucks per day will operate at the truck-filling station at peak periods, based on company estimates. The proposed site is in Fryeburg's rural residential zone.

On Oct. 19, 2005, Fryeburg Planning Board gave its approval to the truck-filling station. On Jan. 4, 2006, the Fryeburg Board of Appeals upheld part of a lengthy appeal of the planning board permit, finding a violation of due process rights of neighbors to the proposed station.

The case went to superior court, where Cole handed down his 11-page ruling. In his ruling, Cole wrote that "the record is void of consideration of whether the load-out facility is a low impact business pursuant to the (Fryeburg) comprehensive plan. The comprehensive plan defines low impact businesses as those that are 'limited in size or amount of traffic.' Here, while the project may meet the traffic safety standards set forth in the ordinance, it is undisputed in the record that this project will generate up to 50 trucks in and out of the facility every day of the year."

The parties had 21 days to appeal. Nestle Waters filed its appeal on Friday, Aug. 25, four days before the deadline, the Oxford County Superior Court confirmed.

Fryeburg selectmen held an "emergency meeting" on Thursday to discuss the town's response to the Oxford County Superior Court ruling.
Selectman Ed Wilkey said a consultation with Geoffrey Hole, attorney with Bernstein, Shur, Sawyer and Nelson, led to a proposal to seek a quick resolution to the case.

"We would like to see it answered now," he said.

Selectman Dave Knapp said, "Our attorney has advised us to write a letter to the law court, saying, 'Please take this quickly, and rule on this matter of law, so that we can have a determination by the highest court in the state.'"

The board voted 3-0 to adopt a motion that selectmen request a quick decision on appeal. Hole was asked to draft the request.

"In the event that another party appeals the superior court's decision, our conversation was that our best recourse at this point is to have him draft a letter that says, 'Please take this appeal as quickly as possible and rule on the matter of law from the superior court's decision,'" Knapp said.

Selectmen also agreed to send a memorandum to the planning board asking that the board table the issue of the truck-filling station until it was clear that the appeal had been filed. The planning board meets at 7 p.m. Tuesday, Aug. 29.

"With the emotion that's running around with this case," a quick ruling would be preferred, Wilkey said. Maine's supreme court, also called the law court, over the next two weeks should request paperwork from the superior court, according to superior court staff.

The nation's largest bottled water company based in Greenwich, Conn., Nestlé Waters North America is a subsidiary of Paris-based Nestlé Waters S.A., the world's largest bottled water company. Nestlé Waters S.A. serves customers in 140 countries with 70 well-known bottled water brands, according to company information.

"Since 1976, Nestlé Waters North America has become the nation's largest bottled water company. Five of the top 10 brands sold in the U.S. are Nestlé Waters North America brands," according to the company Web site (www.nestle-watersna.com). The company's brands include seven regional brands, one of them being Poland Spring.

Assistant editor David Carkhuff can be contacted at david@conwaydailysun.com