March 29, 2024
BANGOR DAILY NEWS (BANGOR, MAINE

AES opponents deny bias by appeals board

ELLSWORTH — Attorneys representing opponents of the proposed Applied Energy Services Corp. power plant in Bucksport have rejected the company’s claims of bias by a local appeals board while urging the Hancock County Superior Court to deny the company’s motion for summary judgment.

AES won local approval to build its $309 million plant by a 4-3 vote of the Bucksport Planning Board last year only to watch the Bucksport Zoning Board of Appeals reverse the decision in February. By a unanimous vote, the appeals board cited errors in the Planning Board’s findings of fact leading to the award of a shoreland zoning permit.

AES filed suit against Bucksport, alleging appeals board members had demonstrated their bias against the plant before making their ruling by signing public petitions drawn up against the proposed plant. The company asked the court for summary judgment as part of its suit and requested a ruling on its bias claim before addressing any other litigation filed in conjunction with the case. Several interested parties opposed to the plant also had appealed aspects of the zoning board’s decision and wanted the court to hear all pertinent issues during the same hearing.

Last month, Justice Ian MacInnes ruled the bias issue would be heard first and requested affidavits on the bias allegations from attorneys within 30 days.

AES has unsuccessfully sought the special assignment of a judge to hear the case and Justice MacInnes has terminated his involvement in the proceedings. Martha C. Gaythwaite, attorney for the State Taxpayers Opposed to pollution charged in written arguments filed with the Hancock County Superior Court Monday that the mere signing of petitions by the appeals board members was not evidence of anyone’s desire to deny AES due process or prevent a fair hearing.

“Local citizens asking for input into the key events of the day is not a subversion of the process, nor a desire to deny due process to anyone,” she wrote. “To the contrary, it was AES that distorted the process by filing applications until it got the decision it wanted and by breaking its promise to leave town if the people did not want it to stay.”

Gaythwaite said AES had produced no evidence indicating that the board members who signed the petition made any vocal pronouncements in opposition to the project or had pre-judged the plant in any way that would preclude them from making a fair and impartial decision on the project. AES itself, Gaythwaite said, had stipulated it accepted the appeals board’s members’ assertion that they could fairly consider the evidence before them.

In affidavits filed with the court, appeals board members Paul Domincovich, Richard L. Tennant, Forrest Wardwell and Anthony Lemire all denied that there was ever any bias on the part of the board.

“Like all citizens of Bucksport, we had formed certain private and personal attitudes at the times when the respective petitions were circulated,” they said. “Those attitudes which we held as private citizens in no way affected our willingness and ability to hear the evidence proposed by the contending parties before the Zoning Board of Appeals. We were willing and even eager to hear the evidence first-hand and form new impressions and attitudes when ever appropriate. Many of our votes were favorable to the AES proponents.”

Barry K. Mills, an attorney for the appeals board, told the court that AES attorneys seemed to believe that the signing of a petition constituted a “plethora of sinister intents”, including abandoning the rule of law.

“What rule would AES suggest?” Mills asked. “That members of citizens boards be without personal preferences or attitudes? Obviously such a totally subjective standard is unworkable and often unattainable.”

Court officials in Ellsworth expect that any hearing in the case won’t be conducted before December.


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