Bennett v. Land Use Planning Commission

• Court: Superior Court of Maine
• Decided: August 8, 2017
• Docket: OXFap-17-0001
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT OXFORD, ss. CIVIL ACTION NO. AP-17-0001 consolidated with AP-17-0002

DWAYNE R. BENNETT and ) LAURIE E. CASTLE, ) ) Petitioners, ) V. ) ) ORDER ON BOC APPEAL LAND USE PLANNING ) COMMISSION ) Respondent, ) ) Consolidated with, ) ) VIOLETTA WIERZBICKI ) ) Petitioner, ) v. ) ) LAND USE PLANNING ) COJvTh1ISSION ) Respondent, ) ) And, ) ) EVERPOWER MAINE, LLC and ) DEANA AND WAYNE BUCK, ) ) Parties-in-Interest. )

Before the court are Petitioners Dwayne R. Bennett's and Laurie E. Castle's

("Petitioner l's"), and Petitioner Violetta Wierzbicki's {"Petitioner 2's") consolidated

appeal for review of Respondent Land Use Planning Commission's (LUPC's) decision

not to remove Milton Township from the wind energy expedited permitting area. M.R.

Civ. P. BOC; 5 M.R.S. §§ 8057(1)-(2), 8058(1). For the reasons below, the court denies

Petitioners' appeal.

• j ­ ~ . .. ~

1 of 8 I. Background and Procedural History

On January 8, 2016, the LUPC received a petition to remove Milton Township

from the expedited permitting area for wind energy development. (R. Vol VI, tab 176, p.

1.) On February 29, 2016, Party-in-Interest Wayne Buck, a resident and property owner

in Milton Township, requested a substantive review. Id.; (R. Vol. I, tab 5, p. 2.); (Parties­

in-Interest Ans. 5); 35-A M.R.S. § 3453-A(3). On August 10, 2016, the LUPC held a public

hearing. 35-A M.R.S. § 3453-A(l); (R. Vol VI, tab 176, p. 1.) The LUPC received written

submissions, testimony, and comments before, during, and after the hearing "from the

Substantive Review Petitioner, a potential wind developer, the Petition Circulator, over

80 interested persons, and 8 governmental agencies." (R. Vol VI, tab 176, p. 1); (Resp't's

Br. 5.) On December 17, 2016, the LUPC issued a final decision denying the petition,

saying that neither statutory criterion for removal was met. (Resp't's Br. 17); (R. Vol. VI, 1

Tab 176, ':[ 82 p. 19, ':[ 83 p. 20); 35-A M.R.S. § 3453-A(3).

On January 25, 2017, Petitioners 1 and 2 filed notices of appeal of LUPC's

decision. The appeals were consolidated on March 9, 2017.

II. Standard of Review

When acting in an appellate capacity pursuant to Rule BOC and the

Administrative Procedures Act, 5 M.R.S.A. §§ 11001-11008, the court reviews an

agency's decision for errors of law, abuse of discretion, or findings not supported by

substantial evidence in the record. Somerset Cnty. v. Dep't of Corr., 2016 ME 33, ':[ 14, 133

A.3d 1006. The party seeking to vacate an agency's decision bears the burden of

1 After substantive review, the LUPC shall remove a place from the expedited permitting area as identified pursuant to 35-A M.R.S. § 3451(3)(B), if it finds the proposed removal: (A) will not have an unreasonable adverse effect on the State's ability to meet the state goals for wind energy development ("Criterion A": the wind energy goals); and (B) is consistent with the principal values and the goals in the comprehensive land use plan adopted by MUPC, 35-A M.R.S. § 3453-A(3)(A)-(B) ("Criterion B": the comprehensive land use plan (CLUP) principal values.)

2 of 8 persuasion to demonstrate error. Rossignol v. Me. Pub. Emples. Ret. Sys., 2016 ME 115,

6, 144 A.3d 1175.

Questions of law are subject to de nova review. York Hosp. v. HHS, 2008 ME 165,

regulation or statute that is within its area of expertise unless the interpretation is

unreasonable or if the statute or regulation plainly compels a contrary result. Cheney v.

Unemployment Ins. Comm'n, 2016 ME 105,

Geologists & Soil Scientists, 2014 ME 42, <[ 17, 88 A.3d 154.

The Court will not substitute its judgment for that of the agency where there is

sufficient relevant evidence that a reasonable mind might accept as adequate to support

the resultant conclusion, and the fact-finder could have fairly and reasonably found the

facts as they did, even if the record contains inconsistent evidence or evidence contrary

to the result reached by the agency. Cheney, 2016 ME 105,

Life Ins. Co. v. Superintendent of Ins., 2013 ME 102,

Prat., 2014 ME 91,

to be given to the evidence, and to make its own credibility determinations. Rossignol,

2016 ME 115,

Envtl. Prat., 2014 ME 116, 102 A.3d 1181. "It is not sufficient to demonstrate that, on the

facts of the case, the decision maker could have made choices more acceptable to the

appellant or even to a reviewing court." Stein v. Me. Crim. Justice Acad., 2014 ME 82, <[ 23,

95 A.3d 612 (citing Sager v. Town of Bowdoinham, 2004 ME 40, <[ 11,845 A.2d 567). The

reviewing court will vacate a determination that a party failed to meet its burden of

proof only if the record compels a contrary conclusion to the exclusion of any other

inference. Rossignol, 2016 ME 115, <[ 6, 144 A.3d 1175.

3 of 8 Procedural due process claims are analyzed by applying a two-step inquiry: (1)

whether the government action has deprived the claimant of a protected property

interest; and (2) if such a deprivation occurred, what process is due pursuant to the

Fourteenth Amendment. Merrill v. Me. Pub. Emples. Ret. Sys., 2014 ME 100,

211.

Evidence shall be admitted if it is the kind of evidence upon which reasonable

persons are accustomed to rely in the conduct of serious affairs. Agencies may exclude

irrelevant or unduly repetitious evidence. 5 M.R.S. §9057(2).

III. Discussion

a. Criterion A: the wind energy goals

Petitioners argue that there was sufficient relevant evidence to meet Criterion A

that removal would not have an adverse effect on the State's ability to meet its wind

energy goals, where the LUPC had evidence that energy from pending wind projects,

not including Milton, exceeded the State's 2030 on shore wind energy goal of 3,000

megawatts. (Pet'r l's Br. 2); 35-A M.R.S. § 3404(2)(C). The Petitioners argue LUPC was

in error to find that removal would have an unreasonably adverse effect, where Milton

was only projected to produce 40 megawatts. (Pet'r 2's Br. 8.)

The LUPC refers to testimony and evidence in the record that proposed projects

do not always advance to development. (Resp't's Br. 11.) The LUPC heard public

hearing testimony from a power systems engineer with SCG Engineering that only 7.7%

of proposed MW proceeded to next stage of filing an interconnection application since

1996. (R. Vol. VI, tab 176, p. 15,

Furthermore, Petitioners argue that the LUPC made a "false presumption" that

the removal of Milton from the expedited permitting area would foreordain that no

wind energy projects would happen in Milton, because wind companies could still

4 of 8 pursue such projects as part of the rezorung process. (Pet'r l's Br. 2-3); (Pet'r 2's Br. 5-6.)

The Petitioners argue that LUPC's reliance on Party-in-Interest EverPower Maine,

LLC's ("EverPower's") "threat" not to pursue a wind project in Milton, if Milton were

removed from the expedited permitting area, was a presumption error based on

irrelevant information that invalidates LUPC's finding that the wind energy goal

criterion was not satisfied. (Pet'r l's Br. 3); (Pet'r 2's Br. 5-6.)

EverPower, a potential wind energy developer in Milton, informed LUPC it

could not "justify spending the significant capital necessary" to develop a wind project

in Milton, if Milton were removed from the expedited permitting area, where rezorung

is expensive, lengthy, and subject to an uncertain outcome even under the best of

circumstances. (R. Vol. V, tab 168, p. 17, n. 12.) EverPower stated that the removal

would create an additional obstacle not present in "more typical rezoning," where

LUPC would be concluding that wind power was not an appropriate land use in

Milton. Id; (Resp't's Br. 9.)

Petitioners argue the LUPC should not have considered the "appropriateness" of

Milton for wind energy development, where it is not part of the removal by petition

with review analysis, and where the removal statute requires that removal "may not

prejudice any subsequent petition presented to [LUPC] to add the specified place back

into the expedited permitting area." 35-A M.R.S. § 3453-A(l); (Pet'r 2's Br. 8-9.) The

LUPC argues that "suitability" is an integral part of the wind energy goals criterion, in

order to evaluate the extent of adverse effects of removal on the wind energy goals.

(Resp't's Br. 12-13.)

The finding required to satisfy the wind energy goals criterion is not simply that

there is an adverse effect on the state's ability to achieve its wind energy goals, but as

conceded by Petitioners, that the effect is unreasonable. 35-A M.R.S. § 3453-A(3)(A)

5 of 8 (emphasis added); (Pet'r 2's Br. 8.) The LUPC found that a comparison of "whether

Milton is well 'suited' for wind energy development" against the potential impacts to

public resources was necessary to perform its reasonableness analysis. (R. Vol. VI, tab

176, p. 17, lJI 70.) In specific, LUPC used the relative suitability of Milton as compared to

other places within the expedited permitting area in order to determine the

reasonableness of the adverse effects Milton's removal on the State's ability to achieve

its wind energy goals. (R. Vol. VI, tab 176, p. 20, lJI 83.) The statute does not plainly

indicate that LUPC's consideration of suitability in this manner was prohibited, and the

court defers to LUPC's interpretation of the statutes as to how to assess the

unreasonableness of adverse effects.

b. Criterion B: the CLUP principal values and goals

Petitioners argue that there was sufficient relevant evidence to meet Criterion B

that removal was consistent with the CLUP principal values and goals, where wind

energy development would adversely impact a highly valued, unique recreation area.

(Pet'r l's Br. 3.) Petitioner argues that LUPC should have considered the effects on three

of Milton's three ponds, which according to Petitioners meet the statutory definition of

great ponds, as evidence of the direct impacts to scenic character. (Pet'r l's Br. 3.)

Petitioners argue that removal is necessary to protect the bat hibernaculum in Milton.

the LUPC should have considered bats. (Pet'r l's Br. 4.) Petitioners argue LUPC relied

on written testimony that incorrectly stated that there are no places of national historic

significance in Milton. (Pet'r l's Br. 4-5.)

The LUPC argues that all four of the CLUP principal values were considered,

(recreational opportunities, high-value natural resources and features, natural character,

and economic value), and concedes that there was evidence sufficient to conclude that

removal was consistent with three. (R. Vol. VI, tab 176, p. 18, lJI 74);

6 of 8 http://www.maine.gov/ dacf/lupc/plans_maps_data/ clup/ Chapterl.pdf); (Resp't's

Br. 14.) However, LUPC found removal was not consistent with "economic value" (R.

Vol. VI, tab 176, p. 18, err 74.) The LUPC then undertook "weighing and balancing" of the

four values together to determine whether removal was consistent with the CLUP

values as mandated by 35-A M.R.S. § 3453-A(3)(B), and determined it was not. (Resp't's

Br. 16); (R. Vol. VI, tab 176, p. 19, err 82.) Petitioners do not dispute that removal was not

consistent with the CLUP economic value goal. Instead, they argue the weighing and

balancing was improper. (Pet'r 2's Br. 14.) The LUPC argues that balancing must

happen where the values are interconnected and sometimes in tension. (Resp't's Br. 16.)

The statute does not plainly indicate that the value balancing strategy employed by

LUPC was prohibited. Furthermore, if LUPC had merely compared the number of

consistent values (three) to the number of inconsistent values (one), this still would

have been an implicit balancing exercise where each of the four values was equally

weighted. The court defers to LUPC's interpretation of the statutes as to how to

determine the consistency of removal with the CLUP values, where there are conflicting

answers considering each value in isolation.

c. Alleged false testimony

Petitioners allege EverPower entered false testimony into the record when

claiming not to have a completed site plan, and withheld relevant information in not

providing the plan when requested. (Pet'r l's Br. 5.) EverPower argues there is no

evidence to support this allegation where Petitioners cite to a Federal Aviation

Authority (FAA) rule that is not part of the record. (Parties-in-Interest Ans. 17.) This

court's review is confined to the record. M.R. Civ. P. 80C(d). Additionally, Petitioner l's

conclusion appears to be based on the unpersuasive logic that if EverPower applied for

7 of 8 an FAA permit, and the FAA application requires "all Wind Turbine configurations,"

then EverPower must have completed a site plan. (Pet'r l's Reply 'I[ 5.)

d. Benefits to Maine people

Petitioners argue that LUPC did not act in accordance with the law where

proposed wind energy program in Milton would not "benefit Maine people" as

required by statute, because the energy will be transmitted out of state. (Pet'r l's Br. 5.)

There are no statutory requirements for the energy generated by a Maine wind energy

facility to remain in the state.

e. Alleged insufficiency of time to speak

Petitioners argue that the people did not have sufficient opportunity to speak at

the public hearing. (Pet'r l's Br. 6.) However, the LUPC held pre-trial meetings,

accepted written comments from interested parties, and the public hearing included

daytime and evening sessions. (R. Vol. II, p. 3-5); (Resp't's Br. 5.)

IV. Conclusion

Based on the foregoing, the Petitioners' BOC appeal is DENIED.

The Clerk is directed to enter this Order on the civil docket by reference pursuant

to Maine Rule of Civil Procedure 79(a).

Date: August 8, 2017

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