Competitive Energy Services LLC of Portland has asked the Waldo County Superior Court to overturn a decision by the Freedom Board of Appeals to reject its proposed wind power project on Beaver Ridge.
CES filed suit Tuesday, April 17, naming as defendants the town of Freedom and 27 individuals – including many members of the Bennett family and others who own property near the proposed site of the project.
Andy Price, lead CES representative for the Beaver Ridge project, could not be reached to discuss the company’s reasons for going to court.
“To me, it’s all about money,” said Steve Bennett, a vocal opponent of the project. “CES stood to make a lot of money if they could put turbines in Freedom.”
Meanwhile, Freedom resident Glen Bridges has presented a petition to town officials seeking repeal of the Commercial Development Review Ordinance. That ordinance – enacted last year – spells out the review process and conditions for approving new commercial projects in town, including wind turbines.
Bridges said the petition was filed by a group of people who support the wind power project. “We realized the ordinance couldn’t be amended; there are just so many problems in so many places,” said Bridges. “It would eliminate business coming to Freedom.”
Bridges said the strict noise requirements in the ordinance, which was a major issue in hearings about the wind project, would also prevent a daycare facility from coming to town because children on playground equipment make noise.
“Hammering nails would be outlawed,” she said.
“That’s ridiculous,” countered Bennett, who said the ordinance distinguishes between large-scale commercial projects and home-based businesses with no more than six nonfamily employees and occupying less than 2,500 square feet of space.
According to Bennett, the ordinance gives the town some level of control over not just wind turbines, but also cell towers, road development, landfills, water extraction, adult businesses and other potentially troublesome enterprises. Without it, the wind project would only need to meet the 20-foot setback requirement in the town’s building ordinance, he said.
“It’s irresponsible to repeal our ordinance,” Bennett said. “The Planning Board worked hard on the site review ordinance last year … and it was voted in overwhelmingly.”
In fact, he said, it was the only time that most of the parties in the town’s wind power debate agreed on anything. “If you don’t like a particular part of the ordinance, work to amend it,” he said.
The repeal is expected to be on the ballot in June. If the ordinance is rescinded, Bridges said the planning board should work on a “much-improved version.”
It is unclear whether a repeal would pave the way for a speedy approval of the wind power project, which would then need only a building permit from Jay Guber, Freedom’s code enforcement officer.
Bridges was not in favor of a moratorium on new commercial projects while the Planning Board worked to revise the ordinance. She said she had stood in the midst of a wind farm on the Gaspe Peninsula in Quebec and heard nothing.
“People who are for wind power find them quiet,” she said. “People who are opposed find them noisy … Noise is in the ear of the beholder.”
In its appeal to Waldo County Superior Court, CES said it asked the Freedom Planning Board on Sept. 6 to approve the construction of three wind turbines on Beaver Ridge under the Commercial Development Review Ordinance. The turbines would be located on land leased from C. Ronald and Susan M. Price.
Ronald Price was recently elected as a selectman in Freedom, replacing Steve Bennett.
Despite strong opposition by Bennett, his family and other abutters, the Planning Board approved the application Dec. 7 in a 5-1 vote, with several conditions.
An appeal of the approval by the Bennetts and other neighbors was hand-delivered to the town Jan. 6, according to CES, but that copy of the appeal did not have a site plan attached. Three other appeal letters, reportedly mailed to the town Jan. 4 and containing site plans, didn’t arrive at the town office.
CES contends the town did not receive a complete appeal – including a required site plan – until Jan. 10, which was 34 days after the planning board’s decision. The Commercial Development Review Ordinance mandates that an appeal be filed within 30 days unless the appeals board finds good cause to waive the 30-day rule.
Since the appeal board didn’t make such a finding, it “had no subject matter jurisdiction over the individual defendants’ appeal,” CES told the court.
CES also said the appeals board erred in finding the project would not meet ordinance requirements that it not exceed, for more than eight days in any 365-day period, noise levels of 45 decibels at any existing residence or 55 decibels at the boundary lines of the project site.
“CES presented to the Planning Board unrebutted evidence that its proposed development met the … standards for noise,” CES said through its lawyer, Roy T. Pierce of the Portland firm of Preti, Flaherty, Beliveau and Pachios.
“The Board of Appeals’ reversal of the Planning Board’s Dec. 7, 2006, approval of CES’ application was contrary to the applicable law; was arbitrary, capricious and/or an abuse of discretion; and is not supported by substantial evidence in the record,” CES told the court.
The company sought a court order vacating the decision and sending the matter back to the Board of Appeals, with instructions to affirm the Planning Board’s order approving CES’ application.
“CES stands to make thousands, if not millions, on this project, either from cashing in on all the tax credits [available to renewable energy producers], or from the sale of green tags [renewable energy credits that would be bought by large power producers], or from selling the project outright to a larger company once it is permitted,” said Bennett.
“Instead of changing their application to come into compliance with our ordinance, they chose to sue our town,” he added. “… To me, CES’ actions give the whole [wind power] industry a black eye.”
By Andy Kekacs
VillageSoup/Waldo County Citizen Copy Editor
25 April 2007
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