Substation appeal is tossed on technicality

BAR HARBOR — Residents hoping to revoke Emera Maine’s permit to build a new power substation on Woodbury Road found some traction with the appeals board Tuesday, but not enough for their case to move forward.

Appeals board members voted 2-1 to find that the appeal by Donald and Patricia Murphy was timely even though it was filed six months after the permit for the substation was issued in December 2013. Normally, an appeal must be filed within 30 days.

However, under appeals board rules, decisions must receive the support of at least three of the board’s five members in order to carry.

Because just three members of the five-member board were present, a unanimous vote would have been necessary for the case to move forward. Member Roger Samuel, however, found that the appeal was not filed in a timely manner. His opposition derailed the Murphy’s opportunity to have the case heard.

The board was functioning with just three members because two new members appointed in June had not yet been sworn in. It was unclear why the members were not sworn in, but the end result was that even though a majority of members hearing the case found the appeal worthy of being heard, the appeal was found not timely, and thus was thrown out.

“I am really sorry that a legal technicality has superseded a community concern,” appeals board chairman Ellen Dohmen said before adjourning the meeting. “I sincerely hope this comes back to us and we have the opportunity to hear you.”

Several of the three dozen or so people in the audience for the appeal expressed frustration after the meeting that the proceedings hadn’t been tabled to a time when all five members of the board could be present. Dohmen responded that she had no standing to do so. None of the attorneys present argued this fact.

In December 2013, Emera Maine received a building permit from Code Enforcement Officer Angela Chamberlain to construct a 26,000-square-foot electrical substation on a lot between Woodbury and Eagle Lake roads. According to Chamberlain’s interpretation of the land use ordinance, among activities allowed in the zoning district are “public utility installations,” and the substation fits into that category.

Chamberlain asked Emera to apply for a permit, however, because all other structures in town need a permit. She granted the permit without involving the planning board, the public or any notice to abutters or other neighborhood residents.

The Murphys intended to argue through their attorney James Collier that Chamberlain’s interpretation of the ordinance was incorrect. In the context of the ordinance, their appeal application states that “public utility installation” means connecting power lines to a house or something equally innocuous.

That argument, however, was not heard in light of the vote on timeliness. According to town rules, a decision to issue a building permit must be appealed within 30 days of the issuance to be considered valid.

In the face of growing neighborhood protest this spring, Emera officials have stated that they no longer intend to construct the power station on the Woodbury Road land. A committee of citizens has been formed to help find another site for the project. The committee is set to begin meeting next week. Emera said it will hold onto its permit for the Woodbury Road site in the eventuality another location cannot be found.

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Robert Levin

Robert Levin

Former reporter Robert Levin covered the people, businesses, governmental and nonprofit agencies of Bar Harbor. [email protected]
Robert Levin

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