December 23, 2010
Maine

Wind project appeal denied on procedural issue

By ALISON ALOISIO, The Bethel Citizen, www.bethelcitizen.com 23 December 2010

The Woodstock Appeals Board last week declined to hear an appeal challenging the Planning Board’s approval of Patriot Renewable’s wind power project on Spruce Mountain.

The decision not to hear the appeal was based on procedural rather than substantive grounds. The 2-1 vote followed arguments by attorneys for Woodstock and Patriot that the time limit for filing an appeal had expired, and the board therefore did not have jurisdiction to hear it.

Another appeal on the project, this one on a second approval that is required from the Maine Department of Environmental Protection, is currently in process.

The DEP approved the 10-tower project in October. Some residents near the site have expressed concern about noise levels and other possible impacts.

Last Thursday’s half-hour discussion focused on when the town’s Planning Board had made its decision to approve the project. The established window for an appeal is 30 days.

Woodstock attorney Lee Bragg argued the board’s decision was made on Nov. 17, 2009, based on minutes from that meeting. On Jan. 5, 2010, the board then granted a request by Patriot to amend a nighttime noise level waiver from 50 to 55 decibels.

Any appeals on either the primary approval or on the waiver should have been filed within 30 days of those dates, Bragg said.

But Snow, noting the Planning Board had asked Patriot to meet with members Oct. 19 of this year to discuss the DEP approval and accompanying report, argued the formal town approval did not take effect until then. He quoted minutes from the meeting stating the review was complete as of that date.

Because there was confusion about the sequence, said Snow, “a decision should be rendered on the side of the citizen.”

Appeals Board members Ruth Feeney and Stephen Newkirk voted against hearing the appeal, while chairman Jim Chandler voted in favor.

Planning Board Chairman Tom Hartford described the process timetable for the board’s approval, saying that in January his board had signed a Site Plan Review as being completed, pending DEP approval. “We did not feel that we could or should issue a building permit [which requires substantial work be completed within a year], since it could not be used. Once DEP approval was received in October 2010, we felt all requirements were met and the building permit could be used.”

The board felt the October date could possibly be used as a start date for the window on an appeal, he said. However, “what we suggested in October 2010 was in error, but it was already over eight months since the appeal should have been initiated,” he said.

The Jan. 5 Planning Board minutes state that the board “does need to hear from the state concerning their requirements before a building permit can be granted.”

Asked after the meeting why he did not appeal earlier, Snow said, “It seemed quite clear to me that this project was not finalized at the town level until the project was amended and approved by DEP. Since the Planning Board themselves didn’t know, it seems unfair and unrealistic to expect private citizens to.”

Snow said after the meeting he is consulting an attorney about possibly appealing the decision to Superior Court.

“Not to be lost in all this ‘timeline’ debate is that the actual facts contained in my appeal are seriously problematic for the local approval of this project and are consequently the reason that Patriot is fighting so hard on a technicality so that we can’t have a real dialogue about some of the issues that have been raised,” Snow said Friday. “I sincerely hope that we are able to bring these facts to light down the road and let both sides have their say publicly.”

Snow said his appeal would have argued that the Planning Board did not by law have the authority to grant the two waivers on decibel levels. Such authority, he said, rests solely with the Board of Appeals.

He also said the waivers exceed both the town and state noise levels and were, therefore, “improper.”

“Additionally, an applicant must prove that ‘undue hardship’ will result by strict application of the standard. This standard was also not imposed in this case as Patriot simply asked for the noise waiver and had it granted,” Snow said.

Hartford said Tuesday the town ordinance gives the Planning Board the right to grant waivers. The sound waiver Patriot received applied to one tower only, he said.

The town’s ordinance stipulates a nighttime sound limit at property lines of 45 decibels for residential properties and 55 for commercial.

“Patriot asked for the waiver, but the Planning Board and Patriot made several changes to the original request to ensure that the waiver was as minimal as possible, and not in violation of state requirements,” said Hartford. “The waiver was a deviation from the town ordinance, but it did not exceed the state requirement. Our noise level was more stringent than that of the state.”

On Monday Andy Novey of Patriot Renewables explained the request to change from 50 to 55 decibels: “We had originally requested a waiver to 55 decibels at the property line; however, when we received our Site Plan Review approval it included a waiver to only 50 decibels, so we went back and asked for the needed 55 decibels. Additionally, we provided the town with recently surveyed property line boundaries that showed a need for the 55 dBA waiver. Since then, we have entered into a purchase and sale agreement to purchase all of the property that required the 55 dBA waiver.”

The appeal challenging DEP’s approval of the wind project was filed last month by the Friends of Spruce Mountain.

At the time of the appeal a group spokesman said the primary concern was the sound level generated by the turbines. Other concerns were shadowing from the blades and the impact on real estate values.

The spokesman, noting that other wind projects in Vinalhaven and Mars Hill prompted complaints from residents after they were built, said more study of the effects of wind power needs to be done before the project proceeds.

The report accompanying the DEP approval noted that the agency’s noise consultant reviewed sound information provided on the project application by Patriot’s consultant. The DEP consultant then requested that some of the towers be operated in a “reduced sound power mode” at night, to provide a larger safety factor than that proposed by the applicant.

Patriot agreed to the request, and said it would work with DEP in designing a sound-monitoring program.

DEP also said in its approval that a computer modeling study had shown the project “will not unreasonably cause shadow flicker to occur over adjacent properties.”

Last March, at Woodstock’s annual Town Meeting, residents voted overwhelmingly against a moratorium on wind-power projects.