April 24, 2018
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Court strikes down Plum Creek plan, saying LURC violated its own rules

By Kevin Miller, BDN Staff

AUGUSTA, Maine — A Maine judge on Thursday halted Plum Creek’s rezoning plan for the Moosehead Lake region and ordered regulators to reopen hearings on one of the largest and most controversial development proposals in state history.

Maine Superior Court Justice Thomas Humphrey did not comment on the substance of Plum Creek’s massive plan for nearly 1,000 houses and two resorts in the Moosehead region — a point that supporters of Plum Creek’s proposal noted Thursday.

Rather, Humphrey invalidated the Land Use Regulation Commission’s decision on procedural grounds, saying commissioners did not follow their own rules and voted on a substantially rewritten rezoning application without first holding a public hearing.

As a result, Humphrey overturned the September 2009 decision, sending it back to LURC and ordering the agency to hold additional hearings.

Groups involved in the appeal hailed the decision, which is likely to be appealed.

“We are absolutely thrilled,” said Lynne Williams, an attorney for the Forest Ecology Network and RESTORE: The North Woods. The Natural Resources Council of Maine was the third appellant in the case.

“It is being remanded to the commission and gives them an opportunity to look very closely at whether this massive rezoning is the right thing for northern Maine,” Williams said.

Representatives for both Plum Creek and the Maine Attorney General’s Office, which defended LURC, declined to comment on the case until after digesting the judge’s order. An appeal would be heard by the Maine Supreme Judicial Court.

“At this time, all I can say is we are reviewing the judge’s decision,” said Mark Doty, a Plum Creek spokesman.

Eugene Murray Sr., chairman of the Greenville Board of Selectmen, also declined to comment Thursday evening until after he could read the ruling.

Humphrey’s decision is the latest twist in a complex and costly case that sparked an intense, statewide debate about the future of Maine’s beloved North Woods.

While critics rejoiced at the ruling, some observers cautioned that one of the largest conservation deals in U.S. history — not to mention the economic vitality of the Greenville area — could be at stake if LURC’s decision is reversed or Plum Creek walks away from the plan.

Bill Beardsley, commissioner of the Maine Department of Conservation, of which LURC is a part, called the decision “a tragedy.”

“I see more poverty and fewer job opportunities in Maine’s fragile rural economies if this decision stands,” Beardsley said in a statement. “I see a loss of 363,000 acres of conservation easements, an area twice the size of Baxter State Park. This is not about the environment. This is one more step in undermining Maine’s tradition of private property and the ability of Maine people to live and work in rural Maine.”

The commission’s September 2009 decision to rezone land for the largest development proposal ever in Maine followed the longest regulatory review process in state history.

More than 470 people testified during public hearings held around the state. In addition, LURC heard 18 days worth of oral arguments and cross-examination, not including deliberation sessions.

Plum Creek’s supporters argue that the 975 houses and two resorts — to be developed over as many as 30 years — will create jobs and economic development in an area of the state where opportunities are few and many families struggle to make ends meet. Additionally, the conservation deals negotiated as part of the proposal will protect more than 400,000 acres of forestland, most of which will remain open to recreational activities and commercial timber harvesting.

But critics contend the houses, resorts and resulting traffic will mar the scenic beauty that makes Moosehead unique. They also warned that LURC’s decision set a dangerous precedent, allowing Plum Creek to benefit financially from the development as well as the conservation easements or land sales to conservation groups.

Plum Creek’s housing and resort proposal changed dramatically between the the time the plan was unveiled in April 2005 and LURC’s final vote in the fall of 2009. But Humphrey took issue with the way LURC handled Plum Creek’s application in the final months of the review.

In his decision, Humphrey said he was troubled by the fact that LURC staff and consultants appeared to work outside the commission’s own regulations — or statutory authority — when they crafted the amended proposal that would pass muster with the commission.

The proposed changes in the rewritten plan “were not mere technical corrections,” Humphrey wrote, but “substantive and significant.” Yet the commission did not hold a public hearing on the amended plan, which the judge viewed as a violation of LURC’s own rules.

“Because these changes occurred after the close of the public hearing, the petitioners were not able to present their own witnesses or examine other witnesses on the wisdom, propriety or impact of these amendments, nor did the commission re-open the public hearing to allow for such examination,” Humphrey wrote.

Humphrey also sided with the appellants’ arguments that rather than help Plum Creek craft an acceptable proposal, the commission should have restricted itself to the question of whether the application before them met the standards.

“LURC’s regulations regarding burden of proof and concept plans strongly suggest that the commission should have voted up or down on Plum Creek’s petition as it stood at the end of the public hearing,” he wrote.

Mike Tetreault, executive director of The Nature Conservancy in Maine, said his organization believes the concept planning process was the best way to achieve “the right mix of economic development, recreational infrastructure and conservation.”

The Nature Conservancy was a partner in negotiating the conservation package included in Plum Creek’s proposal, and Tetreault pointed out that Humphrey’s decision did not question those deals.

“The unfortunate impact of this decision is that the future for all three — conservation, community, and economy — are once again uncertain,” Tetreault said in a statement. “However, we will work to ensure that whatever development is ultimately proposed for this region takes the needs of conservation into account.”

But Lisa Pohlmann, executive director of the Natural Resources Council of Maine, one of the appellants of the LURC decision, said Humphrey recognized that the public was not given adequate opportunity to weigh in on the final Plum Creek plan.

LURC did accept written comments on the rewritten proposal. And after a campaign waged by NRCM and other opponents, more than 1,500 people sent comments objecting to the planned resort at Lily Bay.

“We welcome the opportunity that the Court has now provided for the public to share their concerns about the final Plum Creek plan directly with the commission,” Pohlmann said in a statement. “In so doing, we hope the commission reaches a decision that will result in changes to the plan that yield a better balance of interests between development and protection of the Moosehead Lake region.”

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