Opponents of a wind turbine facility in Garrett County went zero-for-two Thursday when the Maryland Court of Appeals ruled a second time that their challenge had not been properly executed.
In both cases, local business and land-owners challenged the way the Public Service Commission approved Clipper Windpower Inc.’s construction of a 41-acre project along Backbone Mountain. In the latest appeal, dubbed “Clipper II,” the state’s highest court upheld a lower court’s dismissal of the opponents’ request for a declaratory judgment against the project.
The Garrett County Circuit Court found that it would be “inappropriate” to consider a declaratory judgment while another case involving the same parties and issues, called Clipper I, was pending before the Court of Special Appeals.
Thus, the circuit court argued, the petitioners did not exhaust all other remedies provided them under state law.
The Court of Appeals agreed. “At the time this action was filed and resolved, petitioners had failed to exhaust the applicable administrative remedy found in the Public Utility Companies Article because Clipper I was still pending before the Court of Special Appeals,” wrote Judge Dale R. Cathell, the author of the majority opinion.
In a concurring opinion, specially assigned Judge John C. Eldridge wrote that “declaratory proceedings were not intended to and should not serve as a substitute for appellate review or a belated appeal,” and that because the petitioners had not exhausted all their administrative options before taking it to the courts, the existence of another similar trial was irrelevant.
The court also found that the PSC acted appropriately in advertising its administrative hearing in a general circulation newspaper instead of notifying interested parties directly.
The ruling came nearly two weeks after a ruling in a case the court called Clipper I. In that case, the court was asked to reconsider a rehearing request by the petitioners. The court denied the request on the grounds that the petitioners were not entitled to seek judicial review because they were not part of the original proceedings.
Neither the petitioners’ attorney for both cases, John Coyle Jr., of Hidey, Coyle & Monteleone, nor Miles H. Mitchell, deputy general council of the PSC, returned calls for comment.
The Clipper Windpower project has faced fierce opposition from nearby residents and land owners, some belonging to the group Friends of Backbone Mountain, since the California-based company won approval for construction in 2003. The final project calls for 40 turbines producing up to 100 megawatts of power – potentially powering 100,000 homes.
Critics say that the wind turbines will be an eyesore and create noise pollution. The Web site, www.stopillwinds.org, associated with Friends of Backbone Mountain, links to a simulated image of the proposed turbine project, complete with sound recorded from an existing facility. The Backbone Mountain project, if constructed as planned, would extend about 10.8 miles along the mountain ridge at an elevation of about 3,200 feet. The turbines themselves would extend another 394 feet above the ridge.
“Huge industrial windplants pose a major threat to the enjoyment of a quiet rural life,” a December 2004 letter sent to Garrett County residents by the Friends of Backbone Mountain, says. “Most people who live here don’t want the mountains turned into an industrial landscape. Few things are as artificial and mechanized as a looming windplant.”
In Clipper II, petitioners Paul C. Sprenger and Rebecca Harvey in 2004 challenged two commission orders in the Circuit Court for Garrett County, and asked for a declaratory judgment. The first order approved Clipper’s plan to build the facility, and the second denied a request for rehearing on the approval of the facility. The original request was denied because it was deemed untimely by the commission.
Turning down Sprenger and Harvey, the circuit court found and the appellate court concurred that the administrative process for appeals must be exhausted before the aggrieved party may resort to the courts for other relief. They pointed to the fact that the petition was filed when Clipper I had not yet been decided.
“By enacting the Public Utility Companies Article, the General Assembly provided a special form of remedy for specific types of cases such as the present one,” Cathell wrote. “The fact that petitioners failed to avail themselves of that legislatively provided remedy does not…entitle them to declaratory relief in lieu of the administrative remedy.”
The court also rejected the petitioners’ claims that, as interested persons, they should have been personally notified, rather than through an advertisement in the local newspapers. The court reasoned that an interested person, in this case, could range anywhere from an adjacent property owner to a landowner within sight of the turbines, to an environmental group headquartered thousands of miles away.
“The potential pool of interested persons, no matter how remotely interested, is virtually limitless,” the opinion said. “The extent of the pool of interested persons could never be determined. Personal notification of all such potentially interested persons, under the circumstances of this case (or similar cases), would be impossible.”
Of the two Western Maryland windpower projects the PSC approved in 2003, neither has been built yet. One more legal challenge to the wind facility, which contests a change in the project’s design plans, is still pending in Baltimore City Circuit Court.
By Liz Farmer
Daily Record Legal Affairs Writer
21 June 2007
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