BAR HARBOR — Opponents of Emera Maine’s proposed Woodbury Road power substation again have failed in a bid to have their appeal of the project heard.
Donal and Patricia Murphy were first denied standing by the town in 2014, after appealing the project five months after the deadline to do so had passed. Now, a Superior Court justice has followed suit, denying the Murphys a special exception requested by their attorney Arthur Greif.
Greif had argued that the Murphy’s had no idea that the project had been approved while they went south for the winter of 2013-2014, and so could not have appealed it within 39 days of the building permit being issued. That deadline is set out in town rules. Because the Murphys did not know about the project, and because the town did nothing to inform them, the decision last summer not to hear their appeal represented a “flagrant miscarriage of justice,” Greif argued.
However, Superior Court Justice William Stokes ruled Feb. 24 that the Murphys’ lack of knowledge of the project did not justify granting what is legally known as a “good cause” exemption. The town did everything that its own rules require, he said.
“One of the primary reasons that the Murphys did not learn of the planned construction of the substation at 37 Woodbury Road earlier than they did was that they left Bar Harbor for the winter in late December 2013,” Stokes writes in his decision. “The fact that the Murphys voluntarily left the area for almost six months does not constitute ‘special circumstances’ that justify application of the flagrant miscarriage of justice/good cause exception in this case.”
The town followed its own rules in the permitting process, Stokes writes, another factor to be weighed. While Grief argued that land use rules are meant to permit utility hook-ups without public review, not 25,000-square-foot power substations, Stokes writes that the project was permitted properly.
“The fact that reasonable minds can disagree as to the meaning and scope of the term ‘public utility installation’ does not mean that the CEO [code enforcement officer] violated the ordinance,” Stokes writes.
A tangential argument raised by Grief as to whether mistakes were made in a 2010 vote with regards to the zoning language was ruled irrelevant by Stokes.
Stokes further denied the Murphy’s exception request because they are not abutters to the three-acre Emera site. No case in Maine has considered good cause exception from a party living as far away as the Murphys from the proposed site, (615 feet), he said.
Abutters, meanwhile, did have direct knowledge of the project, if not the building permit issued by the town, from a Maine Department of Environmental Protection notice mailed in Oct. 2013. The notice, Stokes notes, “was also published in The Ellsworth American newspaper on the same date.” The notice made clear that the DEP application could be viewed in the town office, he writes.
Two counts remain in the Murphy’s case against Emera and the town. One argues that the proposed substation was wrongly permitted as an activity, when it represents a permanent structure, and as such, is a use. The ordinance allows public utility installation as an activity in the district without a permit, Greif reasons, which is meant for easy hookup of power and cable lines.
Elsewhere in the ordinance, Greif writes, the ‘use’ of public utility installation over 2,000 square feet requires planning board approval before a permit can be issued.
The third count of the lawsuit is by co-plaintiff Paula Moody, who is an abutter to the Emera site. Moody claims that the permit approved by CEO Angela Chamberlain allows the erection of a fence at least eight feet in height around the substation, and that such fences “cannot be erected … in any residential district in Bar Harbor without the written approval of every abutter.” As such, Moody asks for a court order requiring Emera to gain written consent from every abutter for their proposed fence.
A parallel protest against the substation plans, also led by Greif, is currently being considered by the Maine Public Utilities commission. Greif also is behind efforts to bring new zoning language to a town meeting vote that would change the way substations are considered in the ordinance.
Emera, meanwhile, continues to meet with a group of homeowners and business owners and is expected to announce several alternative project locations in the coming months. Company representatives also have said that if they build on the Woodbury Road site, they will construct a more compact, potentially enclosed substation. They have not been willing to give up their building permit, however, as opponents of the project have requested.