FRANKFORT, Maine — The town will not settle a lawsuit filed by three Mount Waldo property owners that challenges Frankfort’s recently adopted wind energy ordinance after residents voted against a consent order to resolve the suit late last month at the annual town meeting.
Mark Franco of Portland, the town’s attorney on the matter, said last week that the civil lawsuit — which seeks a repeal of the ordinance — now will continue to wend its way through Waldo County Superior Court. But because the landowners agreed to drop monetary damage claims against Frankfort if selectmen put the consent order on the warrant for the March 29 town meeting, the town has no more “financial exposure,” he said.
It’s unclear why the landowners agreed to remove financial damages from their lawsuit, but Franco said they reserved the right to sue for attorney’s fees.
“The selectmen determined that it was in the best interest of the town to allow residents to vote on the proposed agreement,” he said. “Now the town has no financial exposure, win, lose or draw.”
The secret ballot vote on the consent order to settle the lawsuit brought by plaintiffs Bernard Madden, Kermit Allen and Wayne Allen against the town ended up being 178-131 in favor of doing so. If it had been approved, the landowners would have been able to apply for state and federal permits for the project without being subjected to the Frankfort wind ordinance.
“The whole idea for the lawsuit is the plaintiffs are saying with this ordinance, we can’t build these towers,” Franco said.
Madden and the Allens own property atop Mount Waldo that they leased in 2010 to a small wind developer, Eolian Renewable Energy. But some residents of the town — which then had no zoning ordinances — advocated for an ordinance to regulate the erection of wind turbines. Voters in 2011 decided by a narrow margin in favor of that wind energy ordinance, which effectively caused the developers to abandon the project.
Paul Emerson of Frankfort said last week that many of those in favor of settling the lawsuit wanted to do so because of a belief that landowners ought to be able to have more control over their property. He said that the Mount Waldo landowners have limited public access to their property. For years, they allowed hiking and the recreational use of snowmobiles and all-terrain vehicles on their land, but that changed when the wind ordinance passed.
“I’m a strong advocate of, if it’s your property, it’s your right,” Emerson said. “My true belief is, [anti-wind-power advocates] just don’t want to look at the turbines. They’ll tell you that they’re going to harm you health-wise, and everything like that, but they never come up with any facts. You can go to the Internet and find whatever way you want it. You can read what you want to read.”
Jonathan Carter of the Forest Ecology Network said last week that “citizens’ rights are at the top of the list,” when it comes to wind energy development.
“The people in that area have spoken,” he said. “They’ve spoken and they don’t want industrial wind in their backyard. They don’t want it atop Mount Waldo.”
Carter, who used to be an advocate for industrial wind development, now believes that the turbines are detrimental to the state.
“It’s destroying the nature of Maine and its special qualities of being a rural, wild state,” he said. “This power isn’t needed … They’re doing it for money. They’re not doing it because it’s green.”
In the lawsuit, which originally was filed last January, attorneys for the landowners argued that the town’s wind ordinance broke state and federal laws and that it essentially created a “regulatory taking” of their property rights.
“The wind ordinance is an irrational, arbitrary and capricious exercise of police power in violation of state and federal law,” Portland-based attorneys David Silk and Benjamin Leoni wrote in the complaint.
Efforts to contact Silk, currently the attorney who is working most with the landowners, were not successful.
Franco said that Justice Robert Murray might not make a final decision on the case until next year, but that he did decide against dismissing the entire case.
“Now the matter proceeds through the court system to the end, unless, of course, the plaintiffs decide to drop it,” Franco said. “That could happen, but I expect the case to go forward.”