January 27, 2012
Maine, Opinions

Frankfort’s wind ordinance deserves court challenge

By Orlando E. Delogu, University of Maine School of Law, Bangor Daily News, bangordailynews.com 27 January 2012

The lawsuit challenging the town of Frankfort’s Wind Energy Ordinance was brought by three Maine residents who own land in Frankfort in the area of Mount Waldo. Working with a small New England wind energy developer, Eolian Renewable Energy, LLC, the plaintiffs determined that the land in question was suitable for a modestly sized (4-6 turbine) commercial wind energy facility.

Contracts between the plaintiffs and Eolian to begin development of the facility were entered into. These contract plans have essentially been nullified by the town’s passage of a moratorium ordinance temporarily barring the development from proceeding. This was followed by passage of a wind facility ordinance that by its terms bars the proposed facility at its planned location (and almost certainly bars commercial wind energy facilities anywhere in the town).

The plaintiff’s attorney has raised a number of issues (each having considerable merit). For example, the town enacted a zoning-type ordinance without having a comprehensive plan as statutes require. The ordinance, without regard to “equal protection” principles, imposes noise limitations only on wind energy facilities. Other, considerably louder noise producing activities remain unregulated.

The ordinance also imposes setback requirements on wind energy facilities that are incapable of being met. The ordinance in its detail and time consuming burdens (burdens not imposed on other commercial activities) is not a good faith regulation of wind facilities but is, in reality, a prohibition.

These (and more) are pressing issues that Maine courts will ultimately have to decide, as an increasing number of Maine towns whipped up by fears, misinformation, and NIMBY attitudes enact ordinances similar in tone and substance to Frankfort’s. The Waldo County Superior Court, however, may avoid these important issues for now, but only because plaintiffs have laid out even worse flaws in the two ordinances – a pattern of inappropriate behavior by the town in the enactment process – behavior that violates fundamental principles of fairness and constitutionally protected “due process” rights.

The moratorium ordinance (beyond stopping the plaintiff’s proposed development) created a Wind Energy Review Committee charged with drafting a wind energy ordinance for the town. Had these duties been reserved to the selectmen, or delegated to an impartial person or body – the town attorney, the Maine Municipal Association, “due process” problems might have been avoided.

Instead, the committee created in the moratorium consisted almost entirely of strident anti-wind residents of the town. It resisted efforts to enlarge the committee membership. Representatives of Eolian were denied the opportunity to speak at the annual town meeting.

Moving forward, the committee conducted its work from June to October, largely in private and/or by communicating with one another by email. Interested parties were directed to an anti-wind energy website, friendsofwaldomountain.org, for information on the committee’s work. Without consulting the selectmen or the town attorney (using funds from unnamed sources), the committee engaged outside counsel to help shape the ordinance it was drafting.

The committee also resisted all Freedom of Access requests (by Eolian and subsequently by the selectmen) to obtain documents related to the committee’s work.

In September the committee submitted the ordinance to selectmen and the town attorney.

By late September, Eolian and the town attorney submitted comments to the board laying out their substantive and procedural reservations to the draft.

In a further communication in early October, the town attorney bluntly told selectmen that the committee “has been conducting its business and deliberations by email and other means outside of publicly noticed proceedings…” required by Maine law. He further opined that “it is impossible to fix a defective process that has already occurred…” Maine case law supports his views (see Mutton Hills v. Town of Oakland, 1983).

But the committee largely ignored these comments and reservations. It made some minor changes to its draft ordinance. It then pressed selectmen to bring the proposed ordinance to a Dec. 1 vote, and lobbied relentlessly throughout the town for passage of the ordinance. The ordinance was adopted by a vote of 244–222.

This unfair course of conduct by the town and the committee (laid out in the plaintiff’s complaint and supported by countless documents) is now before the Waldo County Court. I fully expect that the court will find this persistent trampling of the plaintiff’s “due process” rights to be unacceptable – and that the product of this misbehavior, Frankfort’s Wind Facility Ordinance, will be declared void. Stay tuned.

Orlando E. Delogu is emeritus professor of law at the University of Maine School of Law.