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Appeals board starts review of Freedom wind project

The Freedom Board of Appeals waded deeply into the dispute between developers of the proposed wind power project on Beaver Ridge, and neighbors who demand the project be stopped.

The hearing Thursday, Feb. 1, pitted senior managers of Competitive Energy Services of Portland against Bangor attorney Edmond Bearor, who represents many – but not all – of the neighbors.

CES seeks to build three wind turbines, each about 400 feet tall, atop Beaver Ridge to generate power for about 2,000 homes. The total cost of the project is about $12 million.

The meeting was conducted by Addison Chase, chairman of the appeals board. Chase showed a knack for rapidly moving the discussion forward without preventing participants from having their full say. As a result, in about 3.5 hours of testimony, the board heard most of the issues Bearor intended to raise in the appeal.

The hearing began with the board considering a letter by C. Ronald Price of Knox, who owns the land on which the wind turbines would be built. Price asked the board to throw out the appeal on a number of grounds:

“¢ The appeal incorrectly cited “Roland C. Price” as an owner of the property.
“¢ A copy of the appeal submitted at the town office did not include a site plan, as required by town ordinances, although a copy delivered to Chase did.
“¢ Abutters and other interested parties were added to the appeal Jan. 9, three days after the appeal paperwork was filed by Bennett, his daughter Erin, and their spouses.

With the assistance of Alton Stevens, a Waterville lawyer hired to advise the board, the board decided the appeal should go forward.

Chase told Price that although the appeal gave an incorrect name for the landowner, it was clear what parcel and project were at issue. On the issue of the additional appellants, Chase said he didn’t think the extra people would “materially change what will happen here.”

The lack of a site plan was a thornier matter, but Stevens ultimately advised the board to proceed with hearing the appeal.

“The two ordinances [that govern the conduct of the appeals process in Freedom] are apparently in conflict,” said Stevens. “The Commercial Development Review ordinances does not require a plan “¦ [and it] indicates that the appeal may be filed with the Board of Appeals.”

With 18 years of experience in municipal law, Bearor wasted no time in laying out his case that the Freedom Planning Board was lax in its review of the project. Among the issues he raised were:

“¢ The planning board incorrectly waived a requirement for a stormwater management plan, as required by the Commercial Development Review ordinance.

“¢ CES has no right to improve the portion of the Sibley Road beyond the point of its 1975 discontinuance and the boundary line of Price’s land. Improvements would be required to bring in the huge windmill towers and blades, he argued, but could not legally be performed unless the owners of the lots on the discontinued portion gave the developer a right of way. “If they don’t have the right to use the road, they don’t have the standing to submit the application,” Bearor said. Furthermore, CES has no right to install an underground utility line along the discontinued portion of Sibley Road to link Beaver Ridge with the electrical grid.

“¢ The company did not demonstrate with certainty that the wind turbines complied with setbacks required under town ordinance. A map of the site shows little room for error, said Bearor, but an engineering survey was not done. Instead, a company employee used a GPS unit to establish the locations of the turbines. “The applicant’s presentation was not sufficiently accurate to determine the setback standard was met,” argued the lawyer. It is also not clear whether the setback should be measured from the base of the towers or from the point that the blades would be if they were on the ground. If it is the latter, said Bearor, the project cannot comply with setback requirements.

“¢ A sound study done to verify the project could meet Freedom’s noise standards was fatally flawed. Bearor said no measure of the normal level of noise on Beaver Ridge was taken to establish a baseline for the sound study. Instead, the study assumed noise on the site was normally no higher than 30 decibels. Furthermore, there is no guarantee the developer would choose one of the two turbine models that were modeled in the sound study.

Introduced by Bearor to testify for the neighbors, Diane Winn said CES produced an impressive-seeming sound study. But Winn, who is finishing a 30-year career as a sensory perception psychologist at Colby College, said the study failed to take into account meteorological data and other critical factors. She also cited a number of studies that estimated sounds in rural areas were typically 40-50 decibels, well above the 30 decibels assumed in the CES study.

“There is insufficient evidence that Beaver Ridge can meet the noise limits of 45 decibels at any residence,” concluded Winn.

Bearor’s presentation was not without its gaffes, however. At one point, while arguing the Planning Board was negligent in waiving a requirement that CES prepare a stormwater management plan, Bearor noted the developer was instead directed to use best management practices in its construction activities at the site and on adjacent roads.

The lawyer asserted the Maine Stormwater Management Best Management Practices Manual “does not specify that ditches be of a certain width” or provide other technical guidance to contractors. In fact, the three-volume manual includes an entire book on the estimation of stormwater flow volumes and the technical design of structures to control runoff.

Neither CES nor the appeals board challenged Bearor on that statement, but a second miscue drew laughter from the crowd.

In response to a question from Bearor, Andy Price of CES (nephew of Ronald Price) said he used a handheld GPS unit to establish the location of the turbines and calculate the setbacks.

Such units have a error of plus or minus 30 to 50 feet, according to Randy Reynolds, a registered land surveyor whom Bearor brought to the hearing. Furthermore, the instruments are complicated for laymen to use, asserted Bearor.

“What is your background?” the lawyer asked Price, with a note of skepticism in his voice.

“I have a degree in civil engineering from Stanford University,” the CES employee responded, causing the room to erupt in laughter.

“Is that all?” asked Bearor, who couldn’t help but smile.

For its part, CES defended the planning board review as thorough and legally correct. Richard Silkman, partner in the company and former state economist, noted on a number of occasions the planning not only determined the project could meet town standards, but also imposed performance requirements of CES that ensured it actually would meet the standards.

Silkman and Andy Price asserted that CES believed and had demonstrated that it has the right to use and improve the upper part of the Sibley Road and install an underground utility line. It was also confident it could place the turbines to meet town setback requirements.

“We understand sound is a substantial concern,” said Silkman. “”¦ We retained who we believed to be the best sound engineer/sound analyst in the country … and he prepared a detailed report [showing the project would comply with town requirements].”

Added Silkman: “We can’t do any better than present the views of a nationally known expert … and later [the noise limits] become performance standards.”

The hearing will continue at 7 p.m. Thursday, Feb. 8, in the Freedom Congregational Church.

Based in Belfast, Copy Editor Andy Kekacs can be reached at 207-338-0484 or by e-mail at andyk@villagesoup.com.

7 February 2007