June 20, 2012
Maine

Judge hears motion to dismiss Clifton wind farm appeal

By Nok-Noi Ricker, BDN Staff | Bangor Daily News | bangordailynews.com 19 June 2012

BANGOR, Maine – The lawyer for the town of Clifton said Tuesday that the owners of Rebel Hill Farm, who filed an appeal in Penobscot County Superior Court in March to stop the permitted five-turbine Pisgah Mountain wind farm, filed the paperwork too late.

Town attorney David Szewczyk also told Superior Court Justice William Anderson that the appeal, filed by farmers Peter and Julie Beckford, should be dismissed because it does not list Pisgah Mountain LLC as an essential party and the court paperwork was not delivered correctly to town leaders.

The Beckfords failed to appeal a decision by the town’s board of appeals within the 45 days required by state law, Szewczyk said.

The Clifton planning board unanimously approved the $25 million wind farm in October – after a nearly three-year process. To fight the project, the Beckfords asked the board of appeals to review the planning board’s approval, citing 11 items they contended the planners did not fully consider. The appeals board denied their appeal on Jan. 25. The Beckfords filed their appeal in Superior Court on March 15, or 50 days after the original vote, Szewczyk said.

But the board of appeals held a second vote on Jan. 30 to include the findings of fact, the Beckfords’ attorney, Lynne Williams of Bar Harbor, told Anderson, who will decide whether to approve the motion to dismiss.

She said that the Jan. 30 board of appeals vote was its final decision on the matter and therefore the March 15 court filing fell within the 45-day limit.

Erik Stumpfel, the attorney for Pisgah Mountain LLC, rebutted Williams’ claims, citing a provision in the Maine Rules of Civil Procedure that says appeals must be filed “within 45 days of the date of the vote on the original decision.”

The judge asked Williams why Pisgah Mountain LLC was not listed as an essential party in the appeal, since it was awarded the permit.

The third part of the town’s motion to dismiss concerns filing procedures established by state law, Szewczyk said.

“The Beckfords have never served anyone with a summons or complaint,” the town attorney said.

Peter Beckford did drop off a copy of the complaint – but not a summons – with the town, but the law states court paperwork must be delivered by a law enforcement officer or someone designated by the court, or by registered mail so a receipt can be recorded, Szewczyk said.

“Mr. Beckford is not authorized by law to serve it,” he said. “This lack of personal service is not curable … for the purpose of the appeal. The court has no authority to adjudicate the matter and has no choice but to dismiss the matter.”

Williams said the town clearly understood it had been served even if Beckford did not deliver a summons. She added that a copy of the complaint and summons also were mailed to the town office, although not by registered mail. Szewczyk said neither he nor the town got the letter.

Bangor resident Paul Fuller and his wife, Sandy, his brother-in-law Mike Smith, and Clifton residents John and Eileen Williams make up Pisgah Mountain LLC. Paul Fuller said after the court hearing Tuesday that the appeal process has not stopped the project.

Peter Beckford, who grows and sells native perennial plants and maple syrup from the small farm he runs with his wife, said on the steps of the Penobscot Judicial Center that he is fighting for his livelihood. The couple’s farm is about 4,500 feet from where the wind turbines would be installed.

“We’re facing displacement,” Beckford said. “We’re collateral damage to another wind farm.”

Anderson said he will issue a written decision on the motion to dismiss, but he did not say when that would be.