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Landowners sue Frankfort over ordinance blocking wind power

FRANKFORT, Maine – Does a new land use ordinance that has halted three landowners’ efforts to have a wind energy company construct several turbines atop Mount Waldo break state and federal laws?

A civil lawsuit filed in Waldo County Superior Court this month against the town of Frankfort and its residents alleges that the answer is yes.

Bernard Madden, Kermit Allen and Wayne Allen are asking the court to issue a judgement that the wind ordinance is null and void and order the town to compensate them for the “regulatory taking” of their property rights.

“There is no justification for the enactment of the illegal land use and zoning ordinance, given the town lacks a comprehensive plan,” wrote Portland-based attorneys David Silk and Benjamin Leoni in a complaint that was filed on Jan. 3. “Nor is there any justifiable public interest or rational planning objective for singling out wind energy facilities in a town that does not regulate any other land use activity on private property.”

Efforts Tuesday to interview attorney Mark Franco of Portland, who will be handling the town’s response to the lawsuit, were unsuccessful. Efforts to reach five of six members of the committee that wrote the town’s wind ordinance also were unsuccessful.

Allan Gordon, Jr., the chairman of the town’s board of selectmen, said he had no comment when asked about the lawsuit and referred questions to town attorney John Carver. Carver referred questions to Franco.

Gordon did say that some residents last week had submitted a petition to have the town vote to repeal the wind ordinance at the annual town meeting in March. The Board of Selectmen have not yet taken any action on the petition, he said.

Madden and the Allens in 2010 leased their parcel of land on the mountain to a small, New Hampshire-based wind developer, Eolian Renewable Energy.

Frankfort is a town that had been without land use or zoning ordinances.

In the 30 years since the landowners purchased the property, three radio towers were erected and they harvested trees and allowed the recreational use of snowmobiles and all-terrain vehicles on the land. But when Eolian presented the town in December 2010 with its plan for a small wind farm on the mountain, the community’s laissez-faire approach to development took a sharp turn, according to the allegations in the lawsuit.

Some residents began to advocate for an ordinance that would regulate wind turbines in Frankfort, and a moratorium was proposed in March.

The lawsuit alleges that the moratorium process was unfair from the beginning, stating that anti-wind activists misled residents when they drafted a moratorium petition. By voting for a moratorium on development, residents also were voting for a predetermined committee of people who would draft the ordinance.

According to the suit, at the special town meeting held May 23 to vote on the moratorium, residents asked who would be on the committee.

“Four of the preselected members walked to the front of the meeting and represented that ‘we have no bias’ and that they were not opposed to a wind project on Plaintiffs’ property, they just ‘want[ed] to slow it down’ to do more fact-finding,” wrote the attorneys.

But that wasn’t the case, the suit alleges. Committee members were all “anti-wind energy activists” who had a vested interest in writing an ordinance that is “unreasonable, excessive and [has] no genuine relation to public health, safety, or welfare of the state,” the lawyers wrote.

But the residents approved the ordinance on Dec. 1 by a narrow margin – 244 to 222.

Madden and the Allens believe that the wind ordinance is an illegal land use regulation that acts as a “regulatory taking” of their property in violation of the constitutions of Maine and the United States, the lawsuit states. They believe the committee members kept them from seeing all the information used to draft the wind ordinance.

“The wind ordinance was drafted and voted on in bad faith with the sole discriminatory purpose of preventing Plaintiffs from directly or indirectly operating a [Wind Energy Facility] on their property,” the attorneys wrote.

“Therefore, the wind ordinance is an irrational, arbitrary and capricious exercise of police power in violation of state and federal law.”

Paul Emerson, a Frankfort landowner whose property was not located close to the site of the proposed wind turbine facility and who did not serve on the wind ordinance committee, said Tuesday that all along, his concern has been property rights.

“It’s the landowner’s land. A person should be able to do what they want. That’s the way I feel,” he said. “But the town voted. They voted for the ordinance. There’s really nothing anybody can say about that.”