Beckford v. Town of Clifton
This text of Beckford v. Town of Clifton (Beckford v. Town of Clifton) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Docket No.: BCD-AP~12 OIJ 11 i\1 H -c L<\ ;II/-- 5 <2' I:. '0,'_3
) I PETER BECKFORD and JULIE ) BECKFORD, ) ) Petitioners, ) ) v. ) ) / TOWN OF CLIFTON, ) ) Respondents, ) ) and ) ) PISGAH MOUNTAIN, LLC ) ) Intervenor ) )
DECISION AND ORDER
This case arises out of the decision of the Town of Clifton Planning Board (Planning
Board) to approve Pisgah Mountain, LLC's (Pisgah) site plan application to construct and
operate a wind energy project in the Town of Clifton, Maine. Peter and Julie Beckford (the
Beckfords) reside on and own property located near the site of the proposed wind energy
project and have appealed, pursuant to M.R. Civ. P. soB, the Planning Board's decision to
approve the project. (R. 716; A. tab 4.) 1 The Town of Clifton Zoning Board of Appeals (Board
of Appeals) affirmed the Planning Board's decision on January 30, 2012. (A. tabs 1, 2.) For the
reasons set forth below, the Court affirms the decision of the Planning Board in part and
remands for further findings.
1 Respondent Town of Clifton submitted the record in this case in six binders. Several documents, however, were
not inc! uded in those binders and instead were submitted in Respondent's Appendix. Petitioners also submitted an appendix, but their appendix is limited to items already in the record. The Court accordingly cites to the official record as "R." and the Respondent's Appendix as "A."
1 BACKGROUND I. ADMINISTRATIVE PROCESS
On June 8, 2010, the Town of Clifton adopted "The Land Use Ordinance of the Town of
Clifton, Maine" (hereinafter, CLUO). (R. 1670-1896.) Relevant to this appeal, the CLUO
requires the Planning Board to review and approve the site plan for construction and operation
of an industrial wind project. (R. 1708-27, 1821, 1824.) As with other site plans, the Planning
Board must "consider all applicable standards and requirements of the [CLUO]" and make
"findings of fact in regard to whether the provision of [the CLUOJ have been met." (R. 1708.)
In the case of an industrial wind project, the application must comply with Article 6's general
site plan review requirements and Article 14's wind-project specific requirements. (R. 1824.)
The burden of demonstrating compliance is on the applicant. (R. 1724, 1821.)
On August 11, 2010, Pisgah commenced the formal site plan approval process and
continued to submit application materials at regular planning board meetings throughout the
fall of2010. (R. 711.) On January 18,2011, Pisgah submitted a site plan review application to
the Town's Code Enforcement Officer (CEO), who determined it to be complete. 2 (R. 712.)
The Planning Board confirmed that finding on February 16, 2011, and began reviewing the
application at a regular Planning Board meeting on March 2, 2011. (R. 712.) From the period
between March 2 and September 29 of 2011, the Planning Board reviewed the application at
workshops, public hearings, and regularly scheduled meetings. (R. 712.) During this period, a
group of concerned town residents, including the Beckfords, expressed their opposition to the
proposed wind energy project. (R. 714-17, 89.3-94, 96.3, 965 968, 1017-24, 1152-59, 1229-.30,
12.37-41, 1.347 50.) The Beckfords retained counsel, and throughout the process, either they or
2 Upon gathering all the submission requirements, Article 6 of the CLUO directs the applicant to submit the completed application form to the CEO who then forwards the application on to the Planning Board. (R. 1717-18.) their attorney submitted letters and attended regular meetings, workshops, and public
hearings. (R. 1017-25, 1152-59, 1190-1207.)
As noted, the Beckfords own and reside on property in Clifton, less than a mile from the
project site. (A. tab 4.) The Beckfords allege that prior to August 11, 2010, the date of Pisgah's
formal site application, they had built a 100-square foot cabin on their land, which was below
the threshold to require a building permit from the town. (R. 714.) During the pendency of
Pisgah's wind project application, the Beckfords decided to construct a second cabin. (R. 1020.)
On November 10, 2010, the Beckfords applied for a building permit to construct this second
cabin, and the CEO issued the Beckfords a building permit to construct a 120 square foot, one-
story "accessory cabin." (R. 1020, 1060.) The application described the cabin as insulated
without plumbing or electric and the issued permit stated that the Beckfords could neither rent
nor use this cabin "as a full time residential structure." (R. 1054, 1059-60.)
The Planning Board held a public hearing on Pisgah's application on April 6, 2011,
followed up with another workshop on May 11, 2011, and, subject to a few conditions, granted
the project provisional approval on June 8, 2011. 3 The Planning Board held a second public
hearing on September 29, 2011, followed up with a regularly scheduled meeting on October 5,
2011 and issued its Final Notice of Decision, approving the Project application, on October 12,
2011. (R. 712.)
As would be expected given the lengthy process and the numerous requirements on
Pisgah, the Planning Board's decision was similarly lengthy. On December 19, 2011, the
Beckfords filed an appeal from the Planning Board's Final Decision to the Town's Board of
Appeals. (R. 1656.) The Board of Appeals held a public hearing on January 5, 2012, deliberated
on the appeal on January 16, 2012, and then remanded certain matters to the Planning Board
s The Planning Board ultimately incorporated the findings in its Provisional Notice of Decision dated June 1, 2011, into its Final Approval with corrections for various scrivener's errors. (R. 714.) for additional findings. (A. tab 1 at 1; see A. tab 6 at 1 of 5 (listing items requested for
additional clarification and review).) The Planning Board adopted further findings on January
24, 2012. (A. tab 6 at 1 of 5.) The Board of Appeals further considered the Beckfords' appeal in
light of the Planning Board's supplemental findings on January 25, 2012, and affirmed the
Planning Board's final decision on January so, 2012. (A. tab 1 at 1, s.)
II. THE PLANNING BOARD'S DECISION
The Planning Board found that Pisgah was applying for the high impact non-residential
use of an industrial wind project in Growth Management Area (GMA) S, thus mandating that
Pisgah meet the CLUO requirements in Article 6 for site plan review; Article 12, table 12D for
high impact, non-residential uses in GMA S; and Article 14, section 8 for the wind project
specific standards. (R. 1011.) Because only certain portions of the Planning Board's decision
are at issue in this appeal, the Court limits its factual recitation to the relevant CLUO standards
and corresponding Planning Board findings contained in the June 8, 2011, provisional approval,
the October 12, 2011, approval, and the Planning Board's additional findings upon the Board of
Appeal's remand. The Court begins with the general site plan review standards, then the high
impact, non-residential uses standards, and finally the wind project specific standards.
A. Art. 6: Financial Capacity
As part of the general site plan review requirements of Article 6, an applicant must
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland Docket No.: BCD-AP~12 OIJ 11 i\1 H -c L<\ ;II/-- 5 <2' I:. '0,'_3
) I PETER BECKFORD and JULIE ) BECKFORD, ) ) Petitioners, ) ) v. ) ) / TOWN OF CLIFTON, ) ) Respondents, ) ) and ) ) PISGAH MOUNTAIN, LLC ) ) Intervenor ) )
DECISION AND ORDER
This case arises out of the decision of the Town of Clifton Planning Board (Planning
Board) to approve Pisgah Mountain, LLC's (Pisgah) site plan application to construct and
operate a wind energy project in the Town of Clifton, Maine. Peter and Julie Beckford (the
Beckfords) reside on and own property located near the site of the proposed wind energy
project and have appealed, pursuant to M.R. Civ. P. soB, the Planning Board's decision to
approve the project. (R. 716; A. tab 4.) 1 The Town of Clifton Zoning Board of Appeals (Board
of Appeals) affirmed the Planning Board's decision on January 30, 2012. (A. tabs 1, 2.) For the
reasons set forth below, the Court affirms the decision of the Planning Board in part and
remands for further findings.
1 Respondent Town of Clifton submitted the record in this case in six binders. Several documents, however, were
not inc! uded in those binders and instead were submitted in Respondent's Appendix. Petitioners also submitted an appendix, but their appendix is limited to items already in the record. The Court accordingly cites to the official record as "R." and the Respondent's Appendix as "A."
1 BACKGROUND I. ADMINISTRATIVE PROCESS
On June 8, 2010, the Town of Clifton adopted "The Land Use Ordinance of the Town of
Clifton, Maine" (hereinafter, CLUO). (R. 1670-1896.) Relevant to this appeal, the CLUO
requires the Planning Board to review and approve the site plan for construction and operation
of an industrial wind project. (R. 1708-27, 1821, 1824.) As with other site plans, the Planning
Board must "consider all applicable standards and requirements of the [CLUO]" and make
"findings of fact in regard to whether the provision of [the CLUOJ have been met." (R. 1708.)
In the case of an industrial wind project, the application must comply with Article 6's general
site plan review requirements and Article 14's wind-project specific requirements. (R. 1824.)
The burden of demonstrating compliance is on the applicant. (R. 1724, 1821.)
On August 11, 2010, Pisgah commenced the formal site plan approval process and
continued to submit application materials at regular planning board meetings throughout the
fall of2010. (R. 711.) On January 18,2011, Pisgah submitted a site plan review application to
the Town's Code Enforcement Officer (CEO), who determined it to be complete. 2 (R. 712.)
The Planning Board confirmed that finding on February 16, 2011, and began reviewing the
application at a regular Planning Board meeting on March 2, 2011. (R. 712.) From the period
between March 2 and September 29 of 2011, the Planning Board reviewed the application at
workshops, public hearings, and regularly scheduled meetings. (R. 712.) During this period, a
group of concerned town residents, including the Beckfords, expressed their opposition to the
proposed wind energy project. (R. 714-17, 89.3-94, 96.3, 965 968, 1017-24, 1152-59, 1229-.30,
12.37-41, 1.347 50.) The Beckfords retained counsel, and throughout the process, either they or
2 Upon gathering all the submission requirements, Article 6 of the CLUO directs the applicant to submit the completed application form to the CEO who then forwards the application on to the Planning Board. (R. 1717-18.) their attorney submitted letters and attended regular meetings, workshops, and public
hearings. (R. 1017-25, 1152-59, 1190-1207.)
As noted, the Beckfords own and reside on property in Clifton, less than a mile from the
project site. (A. tab 4.) The Beckfords allege that prior to August 11, 2010, the date of Pisgah's
formal site application, they had built a 100-square foot cabin on their land, which was below
the threshold to require a building permit from the town. (R. 714.) During the pendency of
Pisgah's wind project application, the Beckfords decided to construct a second cabin. (R. 1020.)
On November 10, 2010, the Beckfords applied for a building permit to construct this second
cabin, and the CEO issued the Beckfords a building permit to construct a 120 square foot, one-
story "accessory cabin." (R. 1020, 1060.) The application described the cabin as insulated
without plumbing or electric and the issued permit stated that the Beckfords could neither rent
nor use this cabin "as a full time residential structure." (R. 1054, 1059-60.)
The Planning Board held a public hearing on Pisgah's application on April 6, 2011,
followed up with another workshop on May 11, 2011, and, subject to a few conditions, granted
the project provisional approval on June 8, 2011. 3 The Planning Board held a second public
hearing on September 29, 2011, followed up with a regularly scheduled meeting on October 5,
2011 and issued its Final Notice of Decision, approving the Project application, on October 12,
2011. (R. 712.)
As would be expected given the lengthy process and the numerous requirements on
Pisgah, the Planning Board's decision was similarly lengthy. On December 19, 2011, the
Beckfords filed an appeal from the Planning Board's Final Decision to the Town's Board of
Appeals. (R. 1656.) The Board of Appeals held a public hearing on January 5, 2012, deliberated
on the appeal on January 16, 2012, and then remanded certain matters to the Planning Board
s The Planning Board ultimately incorporated the findings in its Provisional Notice of Decision dated June 1, 2011, into its Final Approval with corrections for various scrivener's errors. (R. 714.) for additional findings. (A. tab 1 at 1; see A. tab 6 at 1 of 5 (listing items requested for
additional clarification and review).) The Planning Board adopted further findings on January
24, 2012. (A. tab 6 at 1 of 5.) The Board of Appeals further considered the Beckfords' appeal in
light of the Planning Board's supplemental findings on January 25, 2012, and affirmed the
Planning Board's final decision on January so, 2012. (A. tab 1 at 1, s.)
II. THE PLANNING BOARD'S DECISION
The Planning Board found that Pisgah was applying for the high impact non-residential
use of an industrial wind project in Growth Management Area (GMA) S, thus mandating that
Pisgah meet the CLUO requirements in Article 6 for site plan review; Article 12, table 12D for
high impact, non-residential uses in GMA S; and Article 14, section 8 for the wind project
specific standards. (R. 1011.) Because only certain portions of the Planning Board's decision
are at issue in this appeal, the Court limits its factual recitation to the relevant CLUO standards
and corresponding Planning Board findings contained in the June 8, 2011, provisional approval,
the October 12, 2011, approval, and the Planning Board's additional findings upon the Board of
Appeal's remand. The Court begins with the general site plan review standards, then the high
impact, non-residential uses standards, and finally the wind project specific standards.
A. Art. 6: Financial Capacity
As part of the general site plan review requirements of Article 6, an applicant must
provide documentation of its financial ability to complete the project. (R. 1713.) The Pisgah
wind energy project is estimated to cost $20 million. (R. 832.) As evidence of its financial
capacity to carry out construction and operation of the wind energy project, Pisgah provided
the Planning Board with two letters, one from Camden National Bank and another from
Cianbro, each expressing an interest in financing the project. (R. 245, 250, 714.) The Planning
4 Board reviewed both letters along with an estimated budget and concluded that Pisgah
demonstrated financial capacity to do the project. (R. 714, 718, 720, 1019.)
B. Art. 6: Environmental Impact
Article 6 also requires the Planning Board to determine that any proposed project "will
not cause undue environmental harm." (R. 171.3.) To make that determination the Planning
Board may request that the applicant provide "a written Environmental Impact Statement ...
in sufficient detail for the [Planning Board] to ascertain what the potential impact of the
project may be on the development and on adjoining land." (R. 171.3.) The impact statement
must include a "thorough technical analysis of the facts," a "complete and objective presentation
of the potential impacts," and a "detailed action plan to address the potential negative impacts."
(R. 171.3.) The CLUO identifies twenty possible impacts that a proposed project might have on
the surrounding area that an applicant must address and discuss in the impact statement. (R.
1714-15.)
Pisgah's impact statement addressed the twenty specific criteria, sometimes citing to
other areas of its application for further explanation. (R. 25-29, 1012-1014.) In response to
concerns that the project might adversely impact avian and terrestrial wildlife, Pisgah provided
the Planning Board with letters from the Maine Department of Inland Fisheries and Wildlife
and the Maine Department of Conservation. (R. 715.) The Maine Department of Inland
Fisheries and Wildlife stated it had no record of "rare botanical features documented
specifically within the project area." (R. 9.3-97.) The Maine Department of Conservation stated
the project would not encroach upon any "Essential or Significant Wildlife Habitat."
(R. 93-97.) The Planning Board reviewed the letters, the responses to each of the twenty
criteria, and an approval from the Maine Department of Environmental Protection (MDEP)
5 and found that for most of the criteria, the project would have little or no impact. (R. 715,
719-20, 1012-14.)
The Planning Board did find the project had the potential for soil erosion and adverse
impact on roads and highways during construction; however, those impacts would be mitigated
by adhering to State rules and regulations as well as Pisgah's mitigation plan for soil erosion.
(R. 1012.) The Planning Board also found the project would impact aesthetics by altering
ridgelines, however, the project would not directly impact ridge tops and geographic sites
protected and preserved in the Clifton Comprehensive Plan. (R. 1013-14.) The Planning
Board further found the project would impact other development in town by consuming land
that may otherwise be developed for housing, however, this impact would be mitigated because
the project would preserve land and provide renewable energy. (R. 1013.) The Planning Board
concluded that the "positive impact on local development offset any adverse development and
that any adverse impact to the landscape and aesthetics would not "significantly diminish the
recreational, living, and working experience of the vast majority of residents and visitors."
(R. 1014.) Finally, the Planning Board determined that the five industrial wind turbines would
alter landscapes, yet they would have "no greater visual impact" on the area than the seven
telecommunication towers on top ofnearby Black Cap Mountain. (R. 1014.)
C. Art. 12: Turbine Height Standard
Article 12 provides the following for the maximum height of unoccupied structures in a
high impact Tier 3 use in GMA 3: "Unoccupied structures with height exceeding 35 feet will
be subject to height restrictions as determined by the [Planning B]oard to be appropriate and
necessary for the proposed use." (R. 1794.) The Planning Board did not specifically address
this requirement in its decision, but found generally that Pisgah had complied with the CLUO's
requirements such that it granted Pisgah's application. (R. 727.)
6 D. Art. 14: Setback Requirements
One of the wind project specific standards in Article 14, § 8 of the CLUO mandates that
each wind turbine be "set back not less than 4,000 feet from any residence, business, school, ' daycare facility, church, hospital or other Occupied Structure ...." (R. 18SS.) An "Occupied
Structure" is "a building in which people, live, work or frequent." (R. 1822.)
The Planning Board found that two cabins the Beckfords built on their property were
not "occupied structures," as that term is defined in the CLUO, and therefore that the project
complied with the CLUO requirement that wind turbines be setback at least 4,000 feet from
occupied structures. (R. 714-17, 1020-23.) The Planning Board concluded that the cabins
could not qualify as '"occupied structures' when they are not associated with a legal wastewater
disposal system." (R. 717.) The Planning Board also found that it had "substantially reviewed
the application by the time the Beckfords applied for a permit to build the second cabin."
(R. 1021.)
E. Art. 14: Decommissioning Bond
Article 14, § 8 of the CLUO requires an industrial wind project applicant to submit a
"Decommissioning and Site Restoration Plan." (R. 1827-28.) This plan must "include
provisions for financial surety to ensure completion of decommissioning and site restoration, in
form and amount satisfactory to the Planning Board." (R. 1827.) The ordinance further
provides that
[a] performance bond or a cash escrow account held by the Town with 5% of the estimated cost of decommissioning to be added by the wind energy facility on an annual basis shall be acceptable surety, the total amount to be based on the estimated cost of completing the decommissioning and site restoration in accordance with the approved plan, adjusted for inflation, and as approved by the Planning Board.
(R. 1827-28.)
7 Pisgah submitted a Decommissioning and Site Restoration Plan (R. 1017), which the
Planning Board found to be an adequate and reasonable study. (R. 715, 725, 1019, lOSS.) The
Planning Board concluded, as a condition to the operating permit, that the Pisgah "will provide
decommissioning surety in the amount of $100,000 and the method of payment to be
negotiated during the Operational Permit Phase." (R. 726.)
F. Art. 14: Sound Level Limits and Study
Article 14, § 8 also contains specific sound standards for wind projects. The applicant
must demonstrate that the project will comply with a number of specific audible and low
frequency sound level limits through a sound study conducted by a qualified professional
approved by the Planning Board. (R. 1829, 18Sl.) The purpose ofthe study is to estimate the
background sound before development and the predicted background sound after development.
(R. 1829.) Article 14 fourteen includes an appendix with specific guidelines for developing a
measurement of an area's pre-construction sound environment (R. 18S7-45), which include
narrative descriptions and iso-contour maps (R. 18S9, 1841 ).
Of particular relevance to the following discussion are the standards for and
measurement oflow frequency sound levels. The CLUO requires the applicant to 1) measure
the existing sound limits on the proposed site, the "pre" values; and 2) calculate post-
construction values on the proposed site, the "post" values, in accordance with the CLUO
mandated procedures. (R. 18S1, 18S7-42.) The "pre" and "post" sound levels must be measured
or calculated using two different weighting systems: A-weighted sound level (dBA) and
C-weighted sound level (dBC). (R. 18S9.) The dBA "measure is designed to reflect the
response of the human ear," and does not give as much weight to low frequency sounds,
whereas the dBC measure "does not deemphasize low frequencies" to the same extent, resulting
in a more accurate measure for sounds with a significant low frequency component. (R. 1821.)
8 The measured or calculated sound levels in dBA and dBC are given three different values: Leq,
LIO, and L90. "L90 is the value for the quietest continuous minute of a continuous ten minute
period, L10 is the value for the loudest continuous minute of a continuous ten minute period,
and Leq is the average value over the entire ten minute period." (R. 1839.) To distinguish the
values from one another, the values are denoted with an "A" or "C" and (pre) or (post). "For
example, LIOA(pre) means the A-weighted preconstruction measurement ofL10." (R. 1839.)
Based on these measurements or calculations, the ordinance limits sound based on
whether the sound levels are audible or low frequency, and whether the sound level is measured
within 4,000 feet or 4,000 feet or beyond of a turbine:
Within 4,000 feet 4,000 feet and beyond
Audible LeqA(post) may not exceed 45 LeqA(post) may not exceed pre- sound limits: dBA at night (7:00 p.m. to 7:00 construction audible sound levels, a.m.) or 55 dBA during the day LeqA(pre ), by more than 10 dBA or (7:00a.m. to 7:00p.m.) a maximum of 40 dBA at night and 50 dBA during the day
Low frequency LeqC(post) minus LeqA(post) LeqC(post) minus LeqA (post) must sound limits: must be less than 20 dB outside of be less than 20 dB outside of any any occupied structure; occupied structure;
L90C(post) may not exceed 50 L90C(post) may not exceed 50 dBC dBC without contribution from without contribution from other other ambient sounds for ambient sounds for properties 1 mi. properties 1 mi. away or more away or more from Routes 9 or from Routes 9 or 180, and may not 180, and may not exceed 55dBC for exceed 55dBC for properties closer properties closer than 1 mi. from than 1 mi. from Routes 9 or 180 Routes 9 or 180
(R. 183 1-32.) Further, any audible sound level measurement must include a "5 dB penalty"
when certain tones, as defined in the most current version of the IEC 61400-11, are present.
(R. 183 1-32.) The CLUO also provides that when one of the enumerated standards conflicts
with another standard, "the most stringent requirements shall apply." (R. 1837.)
9 Pisgah submitted a pre-development ambient sound study prepared by a qualified
professional consultant, Resource Systems Engineering (RSE). (R. 1015.) RSE's
accompanying report compared the existing, pre-construction sound levels with the predicted,
post-construction sound levels estimated. (R. 439.) The study included 17 receiver points (R1
through R17) that were selected to represent the nearest protected locations in eight compass
directions at 4,000 feet and 1.5 miles from the nearest wind turbine. (R. 447.) Table 6-2 of
RSE's report shows these receiver points, their distances from the proposed wind turbines, and
the estimated hourly sound levels, both LeqA(post) and LeqC(post), from the wind turbines at
each receiver point. (R. 455-56.)
The Planning Board selected David Hessler of Hessler & Associates as its independent,
qualified consultant to review the RSE study, which he did in a letter dated March 24, 2011.
(R. 711, 1216-1221.) Hessler, although stating that the CLUO's low frequency sound limits
were impossible to measure and satisfy, concluded that RSE's study was "exhaustive, of very
high quality and contains no significant errors or deficiencies" and agreed with RSE's
conclusion that the project would comply with the CLUO, "under all normal circumstances."
(R. 1219, 1221.)
The Beckfords submitted an alternative review of the RSE study by Stephen Ambrose
of Ambrose Associates and Robert Rand of Rand Acoustics; Ambrose's review expressed doubt
as to whether the RSE study complied with the applicable CLUO provisions. (R. 1015,
1190-1207.) Hessler reviewed the Beckfords' alternative review and concluded that it
"contained significant flaws and represented a predisposed bias opposing the project." (R. 1015,
1160-66.) The Planning Board ultimately concluded that the application met the CLUO's
sound limit requirements. (R. 724, 1015, 1020, 1023, lOS 1.) In doing so, the Planning Board
relied on Hessler's opinion that the study "exceeded development standards and that the
10 submissions for the proposed project indicated compliance with the CLUO sound standards in
Article 14 SPS B.O," and comments from the MDEP approval in which its consultant stated
RSE's study was "reasonable and technically correct' according to standard engineering
practices." (R. 715.)
III. BOB APPELLATE PROCESS
The Beckfords appealed the Board of Appeal's decision by filing a petition for review in
Penobscot County Superior Court on March 15, 2012. Upon a motion to dismiss by
Respondent, the Court (Anderson, J) concluded that the Beckfords' appeal was timely and
allowed them 10 additional days to file a proper return of service. The Court also granted
Pisgah's limited motion to intervene in the proceeding. The case was approved for transfer to
the Business and Consumer Court on October 22, 2012.
The Court heard oral argument in Bangor on February 12, 201.3. Based on the
presentations of counsel, and the issues raised about the low frequency sound limits, the Court
permitted the parties to submit letters identifying record evidence that showed that the law
frequency sound limits exceeded the proscribed limit outside of an occupied structure.
DISCUSSION
I. STANDARD OF REVIEW
In a Rule BOB appeal, the Superior Court to reviews findings made by the municipal
decision maker to determine whether those findings were based upon an "erroneous
interpretation of the law" or based upon conclusions of fact not "supported by substantial
evidence on the record as a whole." Bruk v. Town cifGeorgetown, 4.36 A.2d B94, B97 (Me. 19B1).
"Substantial evidence is 'evidence that a reasonable mind would accept as sufficient to support a
conclusion."' York v. Town cif Ogunquit, 2001 ME 5.3, ~ 6, 769 A.2d 172 (quoting Sproul v.
Town cifBoothbay Harbor, 2000 ME SO, ~ B, 746 A.2d S6B.) Because the Board of Appeals acted
11 solely in an appellate capacity, 4 the Court reviews the findings and conclusions of the Planning
Board. See Gensheimer v. Town if Phippsburg, 2005 ME 22, ~ 16, 868 A.2d 161. The Court
"must affirm the decision of the [Planning Board], unless that decision was unlawful, arbitrary,
capricious, or unreasonable." Driscoll v. Gheewalla, 441 A.2d 102S, 1026 (Me. 1982). The party
seeking to overturn the decision bears the burden of persuasion on appeal. Sa'W)ler Envtl.
Recovery Facilities, Inc. v. Town if Hampden, 2000 ME 179, ~ IS, 760 A.2d 257.
II. ANALYSIS
On appeal, the Beckfords raise several grounds for challenging the Planning Board's
decision to approve Pisgah's site plan application. The Beckfords contend that the Planning
Board erred in its interpretation of "Occupied Structure," resulting in the project violating the
setback requirements for turbines. The Beckfords further contend that the evidence was
insufficient to support the Planning Board's findings that (1) the decommissioning bond is
adequate to meet the entire cost of decommissioning and site restoration; (2) Pisgah has
demonstrated financial capability to do the project; and (s) Pisgah's EIS was adequate. In
addition, the Beckfords challenge the CLUO as unconstitutional for overly vague criteria
regarding wind turbine height standards. Finally, the Beckfords challenge the sufficiency of
the evidence that the RSE study and project satisfied the CLUO's sound limits and assert the
Planning Board erred by accepting a sound study that failed to (1) apply the required 5db tonal
penalty, (2) produce iso-contour maps that to record pre-construction sound, and (s) record a
narrative of sounds in the preconstruction sound calculation.
In addition, the Town has raised the threshold issue of the Beckfords' standing to bring
this appeal, which the Court briefly addresses first. To qualify as a party, one must
4 The CLUO authorizes the Board of Appeals to "hear and decide administrative appeals, on an appellate basis, where it is alleged by an aggrieved party that there is an error in any order, requirement, decision, or determination made by, or failure to act by, the Planning Board in the administration of this Ordinance." (R. 1868.)
12 (1) participate before the Planning Board, and (2) show a particularized injury as a result of the
Planning Board's action. See Nergaard v. Town of Westport Island, 2009 ME 56, ~ 18, 94S A.2d
7S5; Forester v. City of Westbrook, 604 A.2d 31, S2 (Me. 1992). Parties appealing as abutting land
owners "need only allege a potential for particularized injury to satisfy the standing
requirement." Sproul, 2000 ME SO, ~ 6, 746 A.2d 368. The Planning Board recognized Peter
Beckford as an interested party on September 21, 2011. (R. 712, 93.) Moreover, the proximity
ofthe Beckfords' property to the wind project site more than qualifies them as persons to whom
the project could cause "adverse consequence[s] affecting the party's property, pecuniary or
personal rights." !d. ~ 7. Thus, the Court concludes the Beckfords have standing to bring this
appeal.
A. The Setback Requirements
The Beckfords first contend that the Planning Board erred in determining their cabins
are not "Occupied Structures" as defined in the ordinance. The CLUO defines an "occupied
structure" as "a building in which people, live, work or frequent." (R. 1822.) Because the site of
the proposed wind project puts wind turbines within 4,000 feet of two cabins on their property
the Beckfords argue that the plan approval violates the setback requirement that each wind
turbine be "4,000 feet from any residence, business, school, daycare facility, church, hospital or
other Occupied Structure on any Non-Participating Parcel." (R. 1833.) The Beckfords assert
that they use their cabins "frequently, for rest, work, as a destination for walks, runs and
snowshoe hikes, and for a calm retreat"-uses, they assert "fit squarely into the definition of a
building in which people live, work, and frequent." (Pet. Br. 9-10.) They assert the "plain
language of the CLUO does not allow for an interpretation of the term 'occupied structure' to
require plumbing or running water." (Pet. Br. 9.) Thus, they conclude, Pisgah was required to
IS "reconfigure its project to take into account the 4,000-foot setback" from these two cabins.
(Pet. Br. 10.)
The Planning Board found that neither cabin fit within the definition of "occupied
structure." (R. 1021.) Specifically, the Planning Board interpreted "occupied structure" to
mean a building fit for occupancy, one that has "facilities for plumbing, sanitation and water
supply," a characteristic the Planning Board found common to the other structures listed in the
setback provision such as a residence, business, or school. (R. 717, 1022.) The Planning Board
found that neither of the Beckfords' cabins had such facilities and noted that the permit for the
second cabin "expressly prohibits use of the building as a full-time residential structure or for
rental purposes." (R. 716-17, 1021-22.)
Typically, a planning board's characterization of a structure is a finding of fact, and
courts give deference to that ultimate conclusion. See Jordan v. City if Ellsworth, 200.3 ME 82,
~ 8, 828 A.2d 768. Moreover, the terms of a zoning ordinance "are to be construed reasonably
with regard to both the objectives sought to be obtained and the general structure of the
ordinance as a whole." Peregrine Developers, LLC v. Town if Orono, 2004 ME 95, ~ 9, 854 A.2d
216. The party challenging a board's factual determination has the burden of demonstrating
that the evidence compels a contrary conclusion. See Bruk, 4.36 A.2d at 899.
Both parties raise several arguments about the timing and motivation behind the
Beckfords' construction of their cabins. Without deciding or addressing those issues, the Court
concludes that the Planning Board's interpretation of the ordinance was reasonable and that it
supported its determination that the cabins were not occupied structures with a thorough
explanation based on substantial record evidence. The Planning Board found that neither cabin
was equipped with the necessary facilities for occupancy. Notably, the building permit for the
second cabin, "expressly prohibits use of the building as a full-time residential structure or for
14 rental purposes," and the description of the proposed structure in the Beckford's permit
application stated the building would not have "plumbing or electric." (R. 1021, 1053-1061.)
The Board's interpretation of "occupied structure" is reasonable and the record supports the
factual determination that neither cabin met that definition.
B. The $100,000 Decommissioning Bond
Next, the Beckfords contend that the Planning Board erred in determining that the
value of the decommissioning bond, i.e. $100,000, would be enough to restore the site because
the evidence submitted by Pisgah does not support that conclusion. (Pet. Br. 25.) They assert
that Pisgah submitted only a quote for demolition and foundation removal, and excluded other
relevant items. (Pet. Br. 25.) They further contend that Pisgah failed to provide an estimate
from a qualified professional that would cover this specific wind project. (Pet. Br. 25.) Thus,
the Beckfords contend, the Planning Board was without enough information to calculate a
proper cost for decommissioning.
In its application, Pisgah provided a decommissioning plan that described the
anticipated life of the wind turbine to be twenty years and also described the decommissioning
process, which included the removal of above-ground structures, below ground structures,
grading, if necessary, and topsoil and seeding restoration. (R. 42-45.) The study also included
a cost estimate of decommissioning representing the costs of project management, site
reclamation, turbine foundations, electrical collection system, substation, and transmission line.
(R. 42-43.) Pisgah offset the cost of decommissioning with the salvage value of the project
components, resulting in an unmet balance of just under $100,000. (R. 43.) The Planning
Board reviewed the plan and found it to be an adequate and reasonable study. (R. 1019.) It also
conditioned its approval of the site plan on Pisgah providing a $100,000 decommissioning
bond. There was conflicting evidence regarding the scrap value of the turbines themselves (R.
15 430), but the Court cannot say that the Planning Board's finding that the decommissioning
bond is adequate for decommissioning and site restoration is unsupported by substantial
evidence in the record. See Bruk, 436 A.2d at 899.
C. Pisgah's Financial Capability
The Beckfords argue the Planning Board did not support its finding that Pisgah
demonstrated financial capability with substantial evidence. (Pet. Br. 26.) As part of its
application, Pisgah submitted a letter of intent from Camden National Bank and a letter of
commitment from Cianbro. (R. 714.) The letter from Camden National Bank expressed the
bank's "interest in expeditiously providing up to $14,000,000 for the construction and
permanent financing of the Pisgah Mountain wind farm project," and that it was "without all
required underwriting data and the following is a non-binding proposal." (R. 245.) Likewise,
the Cianbro letter represented "Cianbro's commitment to provide Construction Financing for
the erecting and balance of plant costs with the Pisgah Mountain project," and that
"[f]inancing w[ould] be subject to mutual agreeable terms and conditions .... " (R. 250.)
Pisgah also included an estimated project budget, which included a contribution from Pisgah
and a breakdown of costs with a total estimated cost of twenty million dollars. (R. 832.) The
Planning Board reviewed the bank letters and the estimated budget and concluded that Pisgah
demonstrated financial capacity to do the project. (R. 718.)
With respect to financial capacity, there are no specific requirements for wind projects.
Rather, the general site plan review requirements in the CLUO simply requires:
Documentation that the applicant has adequate financial resources to construct the proposed improvements. Evidence could include a letter from a financing institution regarding a loan, letter of credit, or bank account or a certified accountant or annual report indicating adequate cash flow to cover anticipated expenses. The applicant should document a semi-detailed budget estimate for all costs associated with the capital investment including: engineering, legal, financial and capital expenses and documentation on financing package available to cover the project expenses.
16 (R. 1713.) The lack of specificity in this provision may reflect the fact that it applies to more
than just wind energy projects, as well as an assumption that the Planning Board will use its
best judgment in determining what financial evidence is sufficient to show whether a developer
has the financial capability to carry out a particular project.
The Town and Pisgah cite Concerned Citizens to Save Roxbury v. Board qf Environmental
Protection, 2011 ME 39, 15 A.2d. 1263, as a case in which the Law Court accepted non-binding
proposals as sufficient evidence of a developer's financial capability to construct and operate a
wind energy project subject to a state statute. (Resp. Br. 21.) In Concerned Citizens to Save
Roxbury, the developer applied for a permit to construct a wind energy facility consisting of
twenty-two wind turbines along a ridgeline in Roxbury. Concerned Citizens to Save Roxbury,
2011 ME 39, ~ 6, 15 A.2d. 1263. In addition to a non-binding proposal from a bank, the
developer in that case submitted a commitment from its parent company stating its intent to
fully finance the project as well as evidence showing the developer had sufficient funds to
finance the project. !d. ~ 28. The Law Court concluded this evidence to be substantial enough
to support a finding that the developer had the financial capacity to do the project. !d.
The decision in Concerned Citizens supports the Beckfords' argument that the evidence in
this case was not enough to support the Planning Board's finding regarding Pisgah's financial
capacity more than it supports the position of the Town and Pisgah. In the present matter, the
letters from both institutions were non-binding proposals to finance the project and were
contingent on a financial analysis of the company. (R. 245, 250.) The financing institutions
would still need to determine whether Pisgah has the wherewithal to put up the collateral and
security for the loan.
In Concerned Citizens, the developer provided more solid evidence of its financial capacity
than Pisgah has provided. Nevertheless, that project in that case was also much larger than
17 this one, and the statute at issue in that case was more stringent than the ordinance at hand in
the present matter. Although this Court might well have decided that Pisgah did not
adequately demonstrate financial capability to carry through with this project, the Court is not
permitted to substitute its own judgment for the Planning Board's judgment merely because it
disagrees with it or because it would have weighed the evidence differently. York, 2001 ME 5S,
~ 6, 769 A.2d 172. Thus, the Court concludes that the Planning Board supported its finding
that Pisgah demonstrated financial capability with substantial evidence.
D. The Environmental Impact Statement
The Beckfords argue that the Planning Board erred in concluding the project would
have no adverse environmental impact because this finding was based on an "inadequate"
Environmental Impact Statement that "failed to address all relevant issues," as it was required
to do pursuant to the CLUO. (Pet. Br. s 1.) Specifically, the Beckfords argue that Pisgah failed
to adequately address twenty different criteria as it was required to do for the Planning Board
to determine the potential environmental impacts of the proposed project. (Pet. Br. SO.)
Instead, the Beckfords argue, Pisgah submitted a "cursory environmental impact statement"
consisting of letters from the Maine Department of Inland Fisheries and Wildlife and the
Maine Department of Conservation. (Pet. Br. S 1.) The Beckfords assert these letters merely
reflected the fact that both departments lacked data as to whether the project site was home to
essential habitats or rare species, and that further investigation was required before a definitive
statement could be made about the presence or absence of unusual natural features at the site.
(Pet. Br. S 1.) Thus, they conclude, the Planning Board had insufficient evidence when it
determined the project would not adversely impact the environment. (Pet. Br. Sl.) The Town
and Pisgah argue the application met all the ordinance requirements and that the Planning
18 Board's decision not to reqmre a more detailed statement was supported by substantial
evidence. (Resp. Br. 23.)
The CLUO requires the Planning Board to determine "that the proposed project will
not cause undue environmental harm," and that "[w]hen requested by the Planning Board the
applicant shall provide a written Environmental Impact Statement ... in sufficient detail for the
[Planning Board] to ascertain what the potential impact of the project may be on the
development and on adjoining land .... " (R. 1713.) The CLUO includes a comprehensive list
of20 environmental factors that must be addressed by the impact statement. (R. 1714-15.)
In its application, Pisgah addressed all of the 20 factors in the CLUO and submitted the
previously mentioned letters. (R. 27-28.) It also submitted a comprehensive Stormwater
Management Plan with its application, which included information about soil at the site and
professionally prepared plans for erosion and sediment management. (R. 283-432.) The
Planning Board reviewed the letters, the responses to each of the twenty criteria, and an
approval from the MDEP and found that for most of the criteria, the project would have little
or no impact. (R. 715, 719-20, 1012-14.) The Planning Board also concluded mitigating
actions would offset any adverse impact. (R. 1014.) Based on the record, the evidence is of
competent character that a "reasonable mind" could accept "as adequate to support the
conclusion drawn by the Planning Board." Bruk, 436 A.2d at 899. The Court, therefore,
concludes that the Planning Board's finding is supported by substantial evidence on the record.
E. Turbine Height Standard
The Beckfords argue the CLUO is unconstitutionally vague because it lacks specific
standards regarding tower height for wind energy projects. (Pet. Br. 27.) Specifically, they
assert that the only guidance applicable to tower height provides that "unoccupied structures
with height exceeding 35 feet will be subject to height restrictions as determined by the
19 [Planning B]oard to be appropriate and necessary for the proposed use." (R. 1794.) This, the
Beckfords contend, does not provide an "objectively quantifiable criteria" to allow the Planning
Board to reasonably calculate an appropriate wind turbine height. (Pet. Br. 28.) The Town and
Pisgah argue that the standard provides the Planning Board with "sufficient parameters" to
determine height restrictions that are appropriate for the proposed use, and that the CLUO is
"far removed" from the type of ordinance language the Law Court has held to be
unconstitutionally vague. (Resp. Br. 24.) 5
A zoning ordinance is unconstitutionally vague if it provides no standards by which to
examine an application or, relatedly, if it gives the decision maker unfettered discretion. For
example, in Waterville Hotel Corp. v. Board if Zoning Appeals, the Law Court held that a zoning
ordinance that only instructed the Board to exercise its power "in harmony with the
comprehensive plan for municipal development and the purpose and intent of this ordinance, in
accordance with the public interest and in support and furtherance of the health, safety and
general welfare of the residents of the municipality," was too general and did not provide
sufficient guidance to meet constitutional requirements. 241 A.2d 50, 53 (Me. 1968).
Standards are necessary not only to inform applicants about the requirements they must meet,
but also to prevent favoritism and discrimination. See id. While "the exercise of discretion and
judgment is to a certain extent necessary for the proper administration of zoning ordinances,"
the legislative body needs to provide "some standard or basis ... by which such discretion and
judgment may be exercised by the board." Id. at 52. A zoning ordinance that is "vague and
5 The Town also asserts that the Beckfords waived their constitutional arguments by not raising them in the appeal to the CZBA. (Resp. Br. 27.) A party to an administrative proceeding must raise an issue before that body in order to preserve the issue for appeal. See Berry v. Ed. if Trustees, Me. State Ret. Sys., 66S A.2d 14, 18 (Me.1995). An issue is considered raised and preserved for appeal "if there is sufficient basis in the record to alert the court and any opposing party to the existence of that issue." Farley v. Town of Washburn, 1997 ME 218, ~ 5, 704 A.2d 347. The record reveals the Beckfords did raise two constitutional issues on appeal to the Board of Appeals and the Board of Appeals determined it did not have jurisdiction to address them. (R. 1657; A. tab 1 at !.) The Beckfords' objections were sufficient to alert the Town to their existence, and the Beckfords did not waive these issues.
20 indefinite cannot be sustained as valid under the authorizing act." Id. Likewise, in Cope v.
Inhabitants rif Town rif Brunswick, the Law Court held an ordinance that left it to the Board to
determine whether a proposed use would "adversely affect the health, safety or general welfare
of the public," and whether the use would "alter the essential characteristics of the surrounding
property," improperly delegated legislative authority to the Board and was therefore void."
464 A.2d 223, 225 (Me. 1983).
The ordinance provision at issue does not allow the Planning Board to make its decision
on height restriction "based on any factor they independently deem[] appropriate." Uliano v.
Bd. rifEnvtl. Prot., 2009 ME 89, ~ 25, 977 A.2d 400 (quotation marks omitted)." Rather, the
ordinance states that the height restriction must be "appropriate and necessary for the proposed
use." (R. 1794.) This standard requires the Planning Board to examine the proposed use of a
parcel of land and determine what height standards are necessary and appropriate for that use.
The Planning Board also must determine whether the height of the proposed structure is
accordingly appropriate and necessary, consistent with the proposed use. The Beckfords do not
argue that the ordinance conflicts with State standards or that the State has imposed a
limitation upon the town to make any height ordinance. The ordinance that the Town did
enact allows the Planning Board to use its best judgment, consistent with the proposed use of a
parcel and unoccupied structure, to determine what is permissible on a case-by-case basis,
covering a multitude of situations not presently before the Court. The exercise of that
judgment does not render the ordinance unconstitutionally vague in any situation.
Nevertheless, the Court does find peculiar the fact that the CLUO standards specific to
wind energy facilities lack a provision on tower height. The record reflects that the wind
turbines selected by Pisgah stand about 455-feet tall to the top of the blade. (R. SO, 1156.)
Moreover, the Planning Board did not make specific findings regarding the height of the
21 Pisgah turbines or how they met the standards of the CLUO, although the Beckfords have not
raised this issue. The only reference to turbine height in the decision is in noting that turbine
height was an argument made by citizens opposing the project. (R. 714.) There is a compelling
argument to be made that the "appropriate and necessary" standard in the CLUO height
provision may be sufficient for some structures, but is not sufficient for structures of
extraordinary height, such as a wind turbine taller than one and a half football fields. The
absence in the record of any evidence as to how the Planning Board decided that the height of
the approved turbines was appropriate and necessary leads the Court to withhold final ruling
on the constitutionality of the CLUO height provision until after the Planning Board has
revisited the issue on remand.
F. Sound Level Limits and Study
Finally, the Beckfords raise multiple contentions against the Planning Board's findings
regarding the sound study and sound standards. First, they assert that Pisgah's own sound
level assessment reveals the predicted low frequency sound levels exceeded the permitted
sound limits, and the Planning Board accordingly exceeded its authority by approving the
application. (Reply Br. S.) The Beckfords further contend that the RSE study is insufficient
because it: 1) applied an incorrect tonal penalty, which is the MDEP standard, rather than the
more stringent sdB tonal penalty required by the CLUO (Pet. Br. 18.); 2) did not provide iso-
contour maps, which are required elements for a reliable measurement of the pre-construction
sound (Pet. Brief 19.); and S) failed to provide narratives, describing the background sounds
that took place while the engineer took pre-construction measurements (Pet. Br. 22). The
Beckfords contend the Planning Board never addressed these deficiencies, and, therefore should
not have approved the application. (Pet. Br. 12.) Moreover, they assert that the Planning
Board did not waive these submission requirements, nor could it have done so because an
22 industrial wind project does not meet the standard for such a waiver. (Pet. Br. 6.) The Town
and Pisgah argue that the application met all the ordinance requirements, and, therefore, the
Planning Board properly granted the application approval. (Resp. Br. 6.)
Upon reading the record, it is not clear how the Planning Board determined the
application complied with the low frequency sound levels. The fundamental problem is that the
arithmetic supports the Beckfords' contention that the low frequency levels exceeded the
CLUO limits. The CLUO provides that at 4,000 feet and beyond a wind turbine, the low
frequency sound levels, LeqC (post) minus LeqA (post), "must be less than 20 dB outside of any
occupied structure .... " (R. 1832.) The same standard applies for areas within 4,000 feet of a
wind turbine. (R. 1832.) These provisions are specific, determinate and are indeed
non-waivable; the Planning Board has no room for discretion. (SeeR. 1831 ("Site plan approval
... shall be denied if the [Planning] Board determines that the wind energy facility will not
meet [the sound] standards.").)
Specifically, RSE's own study shows the low frequency standards were larger than those
permitted in the ordinance. Table 6-2 of the RSE study shows the estimated sound levels for
both LeqA(post) and LeqC(post) . at seventeen different receiver points. (R. 456.) The
Beckfords point out that in comparing the two figures (LeqC(post) minus LeqA(post)), 6 one can
calculate that the estimated low frequency sound levels exceed the 20 dB low frequency limits
at five different receiver positions: R2, R4, R12, R14, and R16. (R. 456.) The Beckfords point
to the Area Ownership Map and the Sound Model Prediction Map as evidence that there are
occupied structures within those areas where the low frequency levels exceed the ordinance
standards. (Beckford letter to BCD dated Feb. 20, 2013.) They argue that one receiver point,
6 With respect to low frequency sound limits, the CLUO states: " LeqC(post) minus LeqA(post) must be less than 20 dB outside of any occupied structure." (R. 1831, 1832.)
23 R14, is at Lower Springy Pond, a location near several permanent and seasonal residences
along Springy Pond Road. 7 (R. 448.)
The Town and Pisgah contend that the estimates in Table 6-2 were "generated from
highly conservative assumptions that drastically, and deliberately, overstated the actual amount
of sound that would be generated, including low frequency." (Resp. Br. 6.) This response in
effect suggests that the result should be ignored. It does not suffice. It is the applicant's
burden to produce specific evidence demonstrating compliance, and if the non-compliant sound
results are ignored as the Town and Pisgah suggest, the burden has not been met.
The town's consultant reviewed the report, determined that it was of "professional
quality" and that it would comply with the requirements "under all normal circumstances."
(A. tab 6 at 4 of 5.) Nevertheless, the fact that the study was of professional quality does not
support the conclusion that it satisfied the "required elements" of the CLUO. Hessler advised
the Planning Board that the project would not meet the low frequency limits. (R. 1219, 1164.)
He opined it would not be possible to accurately measure for them. (R. 1219.)
It is also unclear how the Planning Board concluded the RSE study met all applicable
requirements when the RSE study did not include the narratives, did not include the iso-maps,
and applied the MDEP tonal penalty rather than the CLUO tonal penalty. The CLUO
provides that any audible sound level measurement must include a" 5 dB penalty" when certain
tones, as defined in the most current version of the IEC 61400-11, are present. (R. 18S1-S2.)
The CLUO also calls for "iso-contour maps" showing the pre-construction and post-
construction audible and low frequency sound levels. (R. 1839, 1841-42.) In his response to
the Ambrose critic that the RSE study did not produce iso-contour maps, Hessler stated, "it is
impossible to produce such a map." (R. 1160.) Given that iso-contour maps are a specific
; The Town has not disputed the Beckfords' assertion that there are occupied structures near Springy Pond, and the RSE study and maps showing lot lines in the record strongly suggest that to be the case.
24 requirement of the CLUO, an applicant that IS unable to produce such maps has not
demonstrated compliance with the ordinance.
Similarly, the record before the Court does not explain why the Planning Board
accepted application of the MDEP tonal penalty. The RSE engineers commented on the
confusion they had with the tonal penalty and stated they used the DEP standard absent
further clarification from the Board. (R. 444.)
Other than its conclusory statements that the "applicant's submitted evidence satisfied
each sound standard element" and the "pre-development ambient sound study ... indicat[ed]
development compliance with the sound generation standards listed in SPS 8.0," the Planning
Board decision does not explain how it ultimately determined the application complied with the
ordinance. (R. 715.) The Planning Board did not address the fact that RSE did not include
narratives or the iso-maps in its study. Nor did it discuss the fact that RSE applied the MDEP
tonal penalty. Instead, the Planning Board simply recited Hessler's opinion that the project
would comply with the ordinance "under all normal circumstances." (A. tab 6 at 4 of 5.) Such a
conclusory statement absent factual explanation does not permit "meaningful judicial review."
Harrington v. Inhabitants cfTown cfKennebunk, 459 A.2d 557, 561 62 (Me. 198S).
While the CLUO permits the Planning Board to obtain assistance from a sound
consultant such as Hessler (R. 1829), the Planning Board still had to examine the evidence and
state how and why it determined that the requirements were met. This is particularly true
when the basis for its findings is "not obvious or easily inferred from the record." See Christian
Fellowship & Renewal Ctr. v. Town cfLimington, 2001 ME 16, ~ 10, 769 A.2d 8S4. Hessler did
not state the project would comply with the CLUO requirements for low frequency sound
levels. The Planning Board made no findings as to whether the study included iso-maps and
narratives and whether the RSE engineer applied the 5dB penalty as required by the CLUO.
25 The Town argues that these requirements may be waived "if the Planning Board
determines it is unnecessary to assess whether the LUO's sound standards will be satisfied."
(Resp. Br. 10.) The Planning Board, however, did not waive that requirement in writing. In
fact, it stated that the iso-contour maps would be required when the issue came up at the April
6, 2011, hearing. (R. 1349.) It is also not clear that the CLUO requirements at issue can be
waived even if a waiver had been requested.
The Planning Board has, therefore, not provided the basis for its conclusion that the
application complied with the sound level standards and the study requirements. These
"insufficient findings do not allow a reviewing court to determine whether the Planning
Board's decision is supported by substantial evidence," Christian Fellowshzp & Renewal Ctr., 2001
ME ~ 10, 769 A.2d 834, as opposed to "a rubber-stamp approach for the courts based on
speculation and clairvoyance or, alternatively, judicial usurpation of the administrative
function," Harrington, 459 A.2d at 562. Because the findings do not allow for meaningful
judicial review on this issue, the Court must remand the matter back to the Planning Board for
further factual findings.
CONCLUSION
Based on the foregoing analysis, the Court ORDERS:
I. The decision of the Planning Board is AFFIRMED with respect to the interpretation of occupied structure and evidence of compliance with the financial capability, environmental impact, and decommissioning requirements of the CLUO.
2. The Court REMANDS the matter to the Board of Appeals with instructions to remand to the Planning Board for reconsideration and for further factual findings regarding the following issues:
(a) whether the proposed height of the turbine structures meets the height standards ofthe CLUO; and
(b) whether the applicant has demonstrated compliance with the sound standards ofthe CLUO.
26 S. On remand, the Planning Board may entertain further argument from any party but may not receive additional evidence into the record. The Planning Board's reconsideration and further findings are to be based on the existing record. On remand, the Planning Board may or may not amend or alter its decision on any issue, but shall in any case make findings on the height and sound standard issues.
4. The Court retains jurisdiction over this matter pending the additional findings by the Planning Board.
Pursuant to M.R. Civ. P. 79(a), the clerk is instructed to incorporate this order into the docket
by reference.
Date: g /J1a'7 2o U A.M. Horton Business and Consumer Court
Entered on the Docket :'5· 'ir·. '~: ../ Copies sent via Mail_ Electromcally ;V
27 BCD-AP-12-10
Peter Beckford and Julie Beckford (Petitioners) v. Town of Clifton (Respondent) and Pisgah Mountain, LLC (Intervenor)
Counsel for Petitioners:
Eric M. Mehnert, Esq Cynthia Mehnert, Esq Hawkes & Mehnert Six State Street, Suite 600 Bangor, Maine 04401
Counsel for Respondent:
David F. Szewczyk, Esq David F. Szewczyk Attorney at Law One Cumberland Place, Suite 314 Bangor, Maine 04401
Counsel for Intervenor:
William B. Devoe, Esq Jonathan A. Pottle, Esq Eaton Peabody 80 Exchange Street P.O. Box 1210 Bangor, Maine 04402-1210 I STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland v Docket No.: BCD. -AP-12-011 \ N\\\ ~ (l)~- \~I tO ~OI?J ) PETER BECKFORD and JULIE ) BECKFORD, ) ) Petitioners, ) ) v. ) ) TOWN OF CLIFTON, ) ) Respondent, ) ) and ) ) PISGAH MOUNTAIN, LLC ) ) Intervenor ) )
DECISION AND ORDER AFTER REMAND
This case is again before the court, following remand to the Town of Clifton Planning
Board (Planning Board) for further consideration of Intervenor Pisgah Mountain, LLC's
(Pisgah) site plan application to construct and operate a wind energy project in Clifton.
For the reasons, set forth below, the court grants the appeal of Peter and Julie Beckford
and vacates the approval of Pisgah's industrial wind energy project.
Background
This court's May 8, 2013, Decision and Order summarized tlie pertinent aspects of
Pisgah's proposed project and the procedural path of Pisgah's application for approval pursuant
to the Town of Clifton Land Use Ordinance (CLUO), culminating in the appeal of Peter and
Julie Beckford (the Beckfords) pursuant to M.R. Civ. P. soB to this court. The May 8, 2013,
Decision and Order is hereby incorporated by reference in the present order.
1 In the May 8, 2013 Order, the court affirmed the Planning Board's approval of Pisgah's
project in some respects, but remanded the matter to the Planning Board for consideration of
two issues: "(a) whether the proposed height of the turbine structures meets the height
standards of the CLUO; and (b) whether the applicant has demonstrated compliance with the
sound standards of the CLUO." BeclifOrd v. Town if Clifton, BCD-AP-12-10, at 26 (Bus. &
Consumer Ct. May 8, 2013). To facilitate further review and avoid delay, the court limited the
Planning Board's reconsideration of those issues to the existing evidentiary record, but
permitted the Board to entertain argument, based on the existing record, from the parties.
Id. at 27. The Planning Board held a meeting and heard argument from the parties on July 18,
2013, and held workshops on August 13 and 14, 2013. After the second workshop, the
Planning Board issued additional findings that have been submitted to the court, along with
briefs from the parties regarding the additional findings. The court heard oral argument
November 6, 2013, and took the case under advisement.
Analysis
The applicable standard of review and other aspects of the legal framework that governs
the analysis are set forth in the May 8, 2013, Decision and Order in this case, and need not be
restated here.
A. Height if the Turbine Structures
Because this order sets aside the Town's approval of Pisgah's project on other grounds,
the turbine height issue need not be discussed in detail. However, assuming, but not deciding,
that the CLUO height standard is valid as applied to Pisgah's proposed turbine structures, 1 the
1 Despite the detailed standards of Article 14 of the CLUO for wind energy projects such as the one proposed by Pisgah, including the requirement of a visual impact study of a proposed project's effects on the ridgeline and scenic views (R. 1830-31 ), the CLUO has no height standards for wind turbines specifically. Instead, wind turbines are subject to the CLUO's generic standard applicable to all "unoccupied structures with height exceeding 35 feet." (R. 1794.) The CLUO provides simply that such court deems the Planning Board's additional findings sufficient to support the Planning Board's
decision to approve the height of the structures.
B. The Planning Board's Decision to Waive Submittal qf !so-Contour Maps Depicting Pre-Construction Sound Levels as Part qfthe Applicant's Pre-Construction Sound Study
The court's Decision and Order remanding the matter with respect to the sound
requirements of the CLUO encompassed several issues relating to the sound standards and
submittal requirements of the CLUO, all of which the Planning Board purported to address in
its additional findings.
The only sound issue that needs to be discussed in detail here relates to the clear CLUO
requirement that an application for approval of a wind energy facility incorporate what the
CLUO refers to as a "pre-construction sound study." The stated purposes of the
pre-construction sound study are "first, to· establish a consistent and scientifically sound
procedure for evaluating existing background levels of audible and low frequency sound; and,
second, to determine whether the proposed wind energy facility will meet the [sound limits of
the CLUOJ." (R. 1839.)
The pre-construction sound study is to include specific components, including
iso-contour maps. (SeeR.ISSl-3'2 (sound standards); R. 1840-41 (iso-contour maps required as
part of the pre-construction sound study).) The CLUO is specific in requiring that the
pre-construction sound study include iso-contour maps showing calculated levels of both
"pre-construction background sound" and "post-construction sound." (R. 1841.) The plain
purpose of requiring the pre-construction sound study to include projections of pre- and post-
structures "will be subject to height restrictions as determined by the [Planning B]oard to be appropriate and necessary for the proposed use." (R. 1794.)
The absence of detailed guidelines or even a list of factors to be considered for wind turbines hundreds of feet tall does raise a question as to whether the generic "appropriate and necessary" standard is a sufficient limitation on the Planning Board's discretion. See Wakelin v. Town qfYarmouth, 523 A.2d 575, 577 (Me. 1987). But if. Town q[Baldwin v. Carter, 2000 ME 106, ~~ 12-14, 794 A.2d 62.
3 construction sound levels is to enable the projected sound impact of the proposed facility to be
assessed in light of the CLUO sound limits.
Pisgah's pre-construction sound study did not include iso-contour maps depicting
pre-construction background sound levels. (R. 448-49, 764.) It did include iso-contour maps
depicting projected post-construction sound levels. (R. 795-802.) In its initial decision, the
Planning Board approved Pisgah's application without explaining how the application could be
approved in the absence of the required iso-contour maps depicting pre-construction
background sound levels. The court's remand included a request that the Planning Board
consider whether Pisgah could be granted approval without submitting iso-contour maps with
its pre-construction sound study.
The court's May 8, 2013, Decision and Order noted that no waiver of the
pre-construction iso-contour map requirement had been granted, and it also questioned
whether a waiver even could be granted. The court assumed and expected that the Planning
Board would review the waiver provision of the CLUO, and then decide whether a waiver
could, and should be granted.
In response, the Planning Board in its additional findings granted a waiver of the iso-
contour map requirement. Specifically, the Planning Board found:
In the Record at 0139, the Planning Board's recollection is that the request was made to not perform a sound study at all prior to development of the project. The Planning Board intended for the developer to produce post- construction iso-contour maps. In the Record at 01153, the Planning Board voted that the applicant submit 8 iso-contour maps for the 4 seasons. The intent was for the applicant to produce post-construction iso-contour maps. Had the Planning Board intended t have the applicant submit pre-ambient iso-contour maps, the request would have been for 16 maps. See Record at 01841,paragraphs 6and 7.
Pre-construction background sound iso-contour maps were discussed exhaustively by the Planning Board. Town consultant Hessler indicated that it would be impossible to produce such a map. Record at 1161.
4 The iso-contour map of predicted post-construction sound is based on specific sources. A map of ambient sound contours would literally change every second, and is not useful for determining compliance with the CLUO.
Based on competent engineering and scientific authority, the requirement was impossible to produce, and, since the information was not required to determine compliance with the standards of the ordinance, the Planning Board waives the requirement for pre-construction background sound iso-contour maps under Article 6, Section 3(H), p. 6-8 of the CLUO (Record at 01715).
(Town of Clifton Planning Board Additional Findings 4, § 5.)
Because the Planning Board's Additional Findings do not quote from the CLUO waiver
provision or recite the standards for waiver, it is not clear whether, before granting a waiver,
the Planning Board ever considered the underlying basic question of whether the cited Article
6, Section 3(H), p. 6-8 of the CLUO even authorizes a waiver of the requirement of iso-contour
maps depicting pre-construction background sound levels. In any case, the court must now
address that question.
Initially, it must be said that iso-contour maps are much more than a "technical
submittal requirement" of the CLUO. In defining the requirements of the sound study that
must be submitted as part of the application for approval of a wind energy facility, the CLUO
provides that "[a]t a minimum, the study shall include the following information, and meet the
following requirements" and then lists the required elements in twelve numbered paragraphs.
(R. 1840 (emphasis added).) The importance of iso-contour maps is implied in the fact that five
of the 12 required elements of the pre-construction sound study-those at paragraph 6 through
10 of the list-pertain to iso-contour maps. (R. 1840-41.)
The iso-contour maps serve a unique and specific purpose. The CLUO at Article 14,
SPS 8.0, section G(1) provides that the sound limits it imposes "are to apply everywhere within
four thousand feet (4,000 feet) of any wind turbine," and also "everywhere at a distance four
thousand (4,000 feet) and over of any wind turbine." (R. 1831-32 (emphasis added).) However,
5 sound measurements obviously cannot be taken "everywhere," and instead are taken at
"Measurement Points" located pursuant to the detailed sound study requirements set forth in
the Appendix to Article 14 (SPS 8.0). (R. 1837.) The means by which pre-construction and
post-construction sound levels are depicted at points "everywhere" around the proposed facility,
based on extrapolations from the sound measurements taken, is through the iso-contour maps.
The iso-contour maps required to be submitted as part of the sound study must "extend to a
minimum of 1.5 miles beyond the perimeter of the project boundary, and may be extended to a
distance ofmore than 1.5 miles at the discretion ofthe Planning Board." (R. 1841.)
The CLUO provides that a wind energy facility's audible post-construction sound levels
at a distance of 4,000 feet or more from a turbine cannot "exceed pre-construction sound levels
by more than 10dBA." (R. 1832.) Thus, it is only by comparing the iso-contour maps depicting
pre-construction background levels with the maps depicting projected post-construction sound
levels that it is possible to determine whether the proposed facility will comply with this sound
limit "everywhere" between 4000 feet and the 1.5 mile radius required to be shown on the maps.
The record is replete with tables depicting measured background levels at specific
receiver or measurement points, (R. 448 et seq.), but this court has not been pointed to, or itself
been able to locate, any map or table or anything else in the record that graphically depicts pre-
construction background sound levels "everywhere" within a radius of 1.5 miles of the project
site, in the manner that the missing iso-contour maps would have done. In other words, the
CLUO requirement of iso-contour maps depicting pre-construction background sound levels is
no de minimis "technical submittal requirement", but instead is essential to enabling the
Planning Board to fulfill its responsibility of determining whether the proposed project will
comply with the sound limits of the CLUO beyond 4,000 feet from any turbine.
6 With that context established, the analysis turns to whether the CLUO authorizes the
Planning Board to waive the requirement that the applicant's sound study include iso-contour
maps depicting pre-construction background sound levels.
A planning board's authority to waive requirements of an ordinance is defined and
limited by the waiver provisions of the ordinance. See Bodack v. Town if Ogunquit, 2006 ME
127, ~~ 14-15, 909 A.2d 620; York v. Town if Ogunquit, 2001 ME 53, ~ 10, 769 A.2d 172; Jarrett
v. Town ifLimington, 571 A.2d 814, 814-15 (Me. 1990).
The waiver provision of the CLUO appears at Article 6, section s(H), page 6-8 of the
CLUO (R. 1715) and reads as follows:
H. Waivers ofSubmission Requirements
In cases where development or expansion will not significantly change the nature or intensity if the use or exterior dimensions if any existing structure, or where a proposed use is deemed by the Planning Board to have no discernable impact on adjoining property or the environment or public irifrastructure, the Planning Board may waive the review procedure and all or portions of the submission requirements in order that the project may be expedited if the information is not required to determine compliance with the standards of this Ordinance.
(R. 1715 (emphasis added).)
On its face, the waiver provision does not apply to Pisgah's application at all. It plainly
applies only to two categories of applications, both involving de minimis impact, and its stated
purpose is to expedite such applications. One such category involves applications for projects
that, if approved, would not significantly change the use or dimensions of an existing structure.
The other category involves applications for projects that would have "no discernable impact"
on adjoining property or the environment. Pisgah's application does not relate to an existing
structure. Pisgah's proposed project cannot reasonably be deemed to have "no discernable
impact," nor has the Planning Board made any such finding. Therefore, Pisgah's application
7 does not fit within either category of applications as to which the CLUO authorizes a waiver of
submission requirements.
The Town and Pisgah contend nonetheless that the iso-contour map requirement can
be waived because it is a submission requirement, not a standard, citing York v. Town if
Ogunquit, 2001 ME 53, 769 A.2d 172; Perkins v. Town ifOgunquit, 1998 ME 42, 709 A.2d 106;
and Fitanides v. City if Saco, 684 A.2d 421 (Me. 1996), cases in which the Law Court has held
that a planning board cannot waive zoning ordinance standards but can waive the submission
requirements of an ordinance. (See Resp.'s Br. 26-27.) This contention misses the point. The
point is that, regardless of whether the waiver is of a standard or a submission, a planning
board's authority to waive is defined by the terms of the applicable ordinance. Planning boards
do not have inherent waiver authority. Cf Desjardins v. Town ofGreene, 2002 WL 31546079, at
*4 (Me. Super. Oct. 17 2002) (Gorman, J.) ("The Board [of Appeals] cannot simply waive a
time limit imposed by the Ordinance because it has spent some time reviewing the case.")
In the case of submission requirements as well as standards, a planning board's
authority to waive an ordinance requirement is limited to what the ordinance allows. 2 For
example, in the Fitanides opinion cited by the Town and Pisgah, the Law Court upheld the
planning board's waiver of a submission requirement because the ordinance at issue specifically
authorized the board to waive submission requirements. 684 A.2d at 423. On the other hand,
in Jarrett v. Town ifLimington, the Law Court held that the waiver provisions of the applicable
ordinance did not permit the planning board to waive a submission requirement requiring the
applicant to provide a test or an affidavit regarding water quality. 571 A.2d at 815. The
2 The Perkins and York decisions are largely irrelevant to this analysis-each involved a planning board's purported but invalid waiver of a zoning standard. Rather, the point here is simply that a planning board's authority is limited by the terms of the ordinance. The Law Court made that point, in upholding the waivers of subdivision standards (but not the waiver of a zoning standard) in York, by noting that waiver of subdivision standards was permitted by the terms of the applicable ordinance. 2001 ME 53,~ 10 n.9, 769 A.2d 172.
8 governing principle was the same in both cases: a planning board's authority to warve a
submission requirement of the applicable ordinance is defined by the ordinance itself.
Thus, even though the iso-contour map requirement is a submission requirement and
not a standard, it still cannot be waived by the Planning Board unless the CLUO authorizes the
Planning Board to do so. As noted above, the CLUO waiver provision applies only to
applications for projects involving no significant impact, and therefore cannot be construed to
apply to Pisgah's wind energy facility proposal:'l Even if the CLUO is construed, as Pisgah and
the Town suggest it should be, to excuse de minimis "technical" omissions, the emphasis that
the CLUO places upon iso-contour maps precludes any argument that iso-contour maps
showing pre-construction background sound levels can be dispensed with on that basis.
In a further effort to excuse the omission of the required maps, the Town and Pisgah
argue that it is impossible to produce the iso-contour maps depicting pre-construction sound
levels that the CLUO specifically requires. If this is indeed the case, the answer is for the Town
to consider revising that part of the Ordinance, not for the Planning Board to dispense with it.
Based on the clear, non-waivable requirement of the CLUO that the applicant for
approval of a wind energy facility must submit iso-contour maps depicting pre-construction
sound levels as part of the application, Pisgah's admitted failure to submit any such maps means
that its application should not have been approved. The CLUO says repeatedly that it is the
applicant's burden to demonstrate compliance with the CLUO standards, including the sound
standards that apply "everywhere" beyond a 4,000-foot radius, by submitting what CLUO
requires (R. 1821, 1831, 1839), and Pisgah has not met its burden.
3 The parties disagree about whether a waiver was requested in writing, as the waiver provision requires, and about whether the Planning Board ever said it wanted to see pre-construction iso-contour maps as opposed to post-construction maps. The court's conclusion that the CLUO does not give the Planning Board authority to waive any iso-contour maps that the CLUO states must be provided as part of the sound study renders these issues moot.
9 C. Other Sound Issues
In light of the foregoing conclusion, the other sound issues that were the subject of
remand do not require extended discussion. As Pisgah and the Town contend, where the
-record contains conflicting evidence--as it does on the issues of calculating the tonal penalty
and whether or not the materials submitted by Pisgah can be deemed narratives-the Planning
Board is entitled to credit the evidence that it did. One issue deserves further discussion,
however.
There Is an Issue as to whether Pisgah's sound study applied appropriate ground
absorption factors in calculating pre- and post-construction low frequency sound impacts. The
Planning Board's additional findings note that Pisgah's low-frequency sound analysis uses what
the Board calls a "worst case" ground absorption factor of zero--that associated with flat
surfaces such as parking lots and water bodies-instead of the higher factors associated with
the wooded terrain that actually surrounds the project site. The Beckfords make the logical
argument that the sound calculations should utilize the higher ground absorption factors
actually associated with the wooded terrain between the turbines and most if not all of the
receiver points. At oral argument, Pisgah's representative appeared to concede that, if the
higher ground absorption factors associated with the terrain around the proposed facility were
used, the results would not comply with the CLUO's low-frequency sound standards.
In the court's view, Pisgah and the Planning Board misapply the "worst-case"
requirement of the CLUO. The CLUO requirement that the determination of
post-construction sound values "should assume worst-case conditions" (R. 1840) refers to the
weather factors, primarily as wind speed, that are specifically mentioned in that section. It does
not mean the sound study should ignore the terrain over which the measured sounds would
actually travel from the turbines to the measurement point. If the calculated sound impacts of
10 the project would exceed either the maximum or the IOdBA differential using any ground
absorption factor from 0.0 upward, that is the worst-case scenario the CLUO contemplates.
This point actually reinforces the importance of iso-contour maps, which would depict
calculated sound impacts at various contour intervals, using the ground absorption factors
associated with the terrain that lies between the turbine and each contour.
In the court's view, the worst-case scenario presented by Pisgah and seemingly accepted
by the Clifton Planning Board is actually a best-case scenario. The Beckfords make a
persuasive argument that, had Pisgah's sound study projected the proposed facility's low-
frequency sound impacts at various locations, including but not limited to measurement points,
using the ground absorption factors associated with the actual tree cover and terrain at those
locations rather than a zero absorption factor, the sound study would not have demonstrated
compliance with the CLUO low frequency sound standards.
D. Issue if Bias
Finally, as to the Beckfords' claim that the Planning Board was biased, the court agrees
with the Town and Pisgah that, notwithstanding the Planning Board's evident willingness to
overlook, excuse and/or waive shortcomings in Pisgah's application, the record does not show
actual bias on the part of any Board member.
For the reasons set forth above, the court concludes that the Town through its
Planning Board has not properly applied the requirements of the Clifton Land Use Ordinance
to Pisgah's application for a wind energy facility, and therefore that the approval and permits
issued to Pisgah's project must be set aside. This outcome does nothing more than hold the
Town of Clifton, through its Planning Board, to follow the requirements of the Land Use
Ordinance that the Town has chosen to enact, as it relates to industrial wind energy projects.
11 IT IS HEREBY ORDERED:
1. The appeal of Peter and Julie Beckford is sustained and hereby granted.
2. The approval and permits granted by the Town of Clifton, through its Planning
Board, to Intervenor Pisgah Mountain, LLC's proposed industrial wind energy project are
hereby vacated and declared to be of no further effect or validity.
3. Judgment is hereby awarded to Petitioners Peter and Julie Beckford against the
Defendant Town of Clifton and Intervenor Pisgah Mountain, LLC, with costs (not including
attorney fees) against Pisgah.
Pursuant to M.R. Civ. P. 79(a), the clerk is hereby directed to incorporate this order / ,/1 . .' 1 1 / ... • ...--~ / into the docket by reference. · ·· / . ··~ ' / -1- /
Date, December 10, 2013 , ~~j)/ 112//?'"/\_/ A.M. Horton, Justice Maine Business & Consumer Court
Enf~ned on the Docket h/r.s. /cJ r:omes ~Flnt vi"' Mail __ Electronically~
12 Peter Beckford and Julie Beckford v. Town of Clifton and Pisgah Mountain, LLC BCD-AP-12-10
Peter Beckford and Julie Beckford Petitioners I Plaintiffs
Counsel: Prose
Town of Clifton Respondents I Defendants
Counsel: David F. Szewczyk, Esq. One Cumberland Place, Suite 314 Bangor, ME 04402
Pisgah Mountain, LLC Intervenor
Counsel: William B. Devoe, Esq, Eaton Peabody Attorneys at Law P.O. Box 1210 Bangor, ME 04401
Related
Cite This Page — Counsel Stack
Beckford v. Town of Clifton, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beckford-v-town-of-clifton-mesuperct-2013.