A Superior Court judge affirmed most of the Clifton planning board’s October 2011 decision to approve a $25 million wind farm on Pisgah Mountain, but also remanded the matter back to planners to review tower heights and sound levels.
“It’s a real victory — the first victory — for us,” Peter Beckford, who opposes the project, said Tuesday.
Beckford and his wife, Julie, owners of Rebel Hill Farm, filed an appeal in Penobscot County Superior Court in March 2012 to stop the permitted five-turbine Pisgah Mountain wind farm proposed by Bangor residents Paul and Sandy Fuller and partners.
Fuller said the judge’s decision is just another bump in the road for the project, which has been in the works for more than three years.
During the oral arguments, the Beckfords’ attorney argued preconstruction sound level figures and isocontour maps were not submitted, that sound levels submitted exceeded permitted levels, that the land use code is vague regarding wind turbine heights and that two cabins put up on the Beckfords’ land are within the 4,000-foot wind tower setbacks.
They also questioned the financial capacity of the developers, whether enough decommissioning money had been set aside and the environmental impacts of the 450-foot tall turbines.
“He affirmed the planning board’s decisions on the setbacks of the cabins and he also affirmed their decisions on the environmental impacts, financial capability and decommissioning,” David Szewczyk, the town’s attorney, said. “Basically, all the issues except for two. The one thing the planning board has to do is provide additional findings of fact.”
The town, the Beckfords and the developer all hired their own sound consultants to test and review sound levels, and Horton determined that it is not clear how the planning board made their decision.
The town’s 28-page wind turbine ordinance is very specific and has very strict sound levels that are even lower than those set by the Maine Department of Environmental Protection, and Horton agreed with the Beckfords “that the low frequency levels exceeded the [Clifton Land Use Ordinance] limits.”
“The arithmetic is on the Beckfords’ side,” Peter Beckford said.
The judge also added that, “The Town and Pisgah contend that the estimates [used] were ‘generated from highly conservative assumptions that drastically, and deliberately, overstated the actual amount of sound that would be generated, including low frequency.’ This response in effect suggests that the results should be ignored. It does not suffice.”
The sound study used by the town also “did not include the narratives, did not include the iso-maps, and applied the MDEP tonal penalty rather than the [Clifton Land Use Ordinance] tonal penalty,” the judge said.
For those reasons, Horton remanded the project back to planners.
“It certainly isn’t bad news,” said Fuller’s attorney, Bill Devoe of Eaton Peabody in Bangor. “The two issues left at this point are [turbine] height and low frequency sound data, and [they] are both easily answered in the confines of the ordinance.
“It’s a project of significant scope and complexity,” he said. “It’s not surprising that the court needs more from the planning board.”
Fuller said he is already on the June planning board agenda to address the court’s concerns.“Besides that, we’re shovel ready,” he said.