A citizens group’s procedural errors in opposing the proposed $130 million Rollins Mountain wind project prompted the Maine Supreme Judicial Court on Thursday to affirm a lower court’s decision denying the group a chance to appeal the project’s permit.
The state’s top court agreed with the town’s attorney, Timothy C. Woodcock, who argued that the Friends of Lincoln Lakes failed to provide proper legal identification that would help the Lincoln Planning Board to determine responsibility for the group’s actions. With their identity left vague, group members “had no capacity to sue or be sued,” Woodcock argued July 29 in Penobscot County Superior Court.
The Lincoln Appeals Board voted 4-2 on Jan. 8, 2009, that it lacked sufficient evidence of the identity of the Friends group to hear its appeal of the planning board’s 6-1 approval of the First Wind of Massachusetts’ plan on Dec. 1, 2008. First Wind seeks to put 40 turbines, each generating 1½ megawatts, on ridgelines in Burlington, Lincoln, Lee and Winn.
Released on Thursday, the Supreme Judicial Court’s unanimous 10-page ruling states, “Although a number of people connected to Friends appear to have attended the [Appeals] Board hearing, none of them stepped forward to state that they had participated in the Planning Board meeting as members of or on behalf of Friends.
“Under those circumstances, the [Appeals] Board did not err in finding insufficient evidence of participation,” the ruling stated.
The Friends group allowed the appeals board to view, but not copy, bank statements and some other materials, fearing the release of confidential information, when it appeared before the panel about a month after the Lincoln Planning Board approved the project on Dec. 1, 2008.
The appeals board declined to hear the Friends appeal. The group opposes First Wind of Massachusetts’ plan for the 40 turbines.
The group’s appeal to the appeals board could have proceeded had just one Friends member been identified as legally responsible for group actions or alleged that he or she would “suffer some injury to a pecuniary interest or personal right” if the appeal was not heard, the justices said.
“Even with this low threshold, however, Friends failed to show a particularized injury because it identified no members who would be affected by the project in any way,” the ruling said.
The Friends’ attorney, Lynne Williams of Bar Harbor, argued that town documents, and other materials the group brought to the appeals board hearing, should have been enough to push the appeal forward, as town regulations provide no detailed guidelines for establishing standing.
“There is certainly no notice to a party that they must come armed with membership lists, bank statements, bylaws and resolutions regarding the appeal,” Williams wrote in her appeal to the supreme court. “Nor was [Friends of Lincoln Lake] notified to bring anything except a copy of their Articles of Incorporation.”
On Thursday, Williams said she is considering filing a lawsuit against the town in U.S. District Court in Bangor alleging substantive due process and equal protection violations. She hopes to have a decision within a week.
“It would not be brought on behalf of [the Friends group] but on behalf of some of the abutters [to the project]. It will take some research on my part and also a meeting with the abutters and seeing whether they will be the main plaintiffs in this suit,” Williams said.
“Time is of the essence because theoretically they [First Wind] have been granted a permit, but it is on hold. They could get their permit and start clear-cutting,” Williams added. “We need to decide soon, and if we do do this, I would also file for an injunction.”
The injunction would seek to prevent project construction from starting.
The group opposes the project, saying it would emit sound and vibrations harmful to wildlife and people, lower land values and disrupt the pastoral nature of Rollins Mountain. First Wind has argued that its project meets or exceeds all state environmental requirements and that wind turbines have no adverse effect on land values.
Lincoln Town Manager Lisa Goodwin was pleased with the latest court decision.
“It affirms that the appeals board acted appropriately,” she said. “It is not always easy for a board that meets so infrequently to come together and handle such a complex issue so well.”
Friends group president Brad Blake said he found the top court’s decision “amazing.
“I condemn and abhor the decision reached by the state supreme court,” he added. “My question to everybody in the state of Maine is when do citizens actually start to have rights. This is a citizens rights issue that was decided. Unfortunately this particular issue is tied to the industrial wind issue, but we as citizens all need to be concerned about our ability as local citizens to have a say in what happens in our own communities.
“To make these findings in light of the fact that in Lincoln, everybody has known that a group called the Friends of Lincoln Lakes did indeed exist and had indeed been working in many ways in opposition to First Wind’s project is amazing to me,” Blake said. “This appeal resulted from the most uncivic process that in my long time of civic activism I have ever witnessed.”
First Wind spokesman John Lamontagne said he hopes that the court’s decision will allow the company to start building the Rollins Mountain project by the end of the year.
“We don’t have an established construction timetable yet,” Lamontagne said. “The conclusion of the appeal will help expedite the process of getting financing for the project together.”
Rollins Mountain is the first First Wind project that would sell electricity wholesale to some Maine residents through the utilities that serve them. The Maine Public Utilities Commission unanimously approved awarding the 20-year contract to First Wind Holding LLC, a wholly owned subsidiary of Evergreen Wind Power III LLC, in October 2009.
The commission directed Central Maine Power Co. and Bangor Hydro-Electric Co. to share the contract in an 80-20 split, with CMP securing the larger portion, officials said.