As Peru voters examine the November ballot, they should be aware that adoption of the proposed Industrial Wind Energy Facility Ordinance [viewable in its entirety here] will leave some uncertainty as to whether grid-scale wind turbines will ever be sited in town. The intent of the committee that wrote the ordinance is clear: devise standards so strict that a developer could not possibly adhere to them. That was the easy part. Defending the ordinance in a court of law may be another matter.
If the ordinance passes, Peru will be following the same strategy adopted by the Waldo County town of Frankfort nearly a year ago--after certain landowners there had contracted with Eolian Renewable Energy LLC to host a wind farm. Frankfort's ordinance was essentially a backdoor ban, and the affected landowners hired a Portland law firm to sue the Town in Superior Court [the original complaint filing can be found here]. In response, the Town asked the Court to dismiss all ten counts of the complaint.
Last week the Court granted the Town's motion to dismiss with respect to three counts, but denied with respect to the other seven. In its opinion [posted here], the Court agreed with the plaintiffs that the following claims may have merit:
- The Wind Ordinance is an unconstitutional taking.
- The Wind Ordinance impermissibly interferes with plaintiffs' constitutional right to contract.
- The Wind Ordinance arbitrarily denies plaintiffs' constitutional right to equal protection in violation of the Maine Constitution.
- The Wind Ordinance denies plaintiffs' right to substantive due process.
- The Wind Ordinance is unconstitutionally vague.
- The Wind Ordinance was drafted and adopted in bad faith and with the sole discriminatory purpose of preventing plaintiffs from directly or indirectly establishing a Wind Energy Facility on the property.
- The Wind Ordinance is preempted by state law regulating wind energy development.
In a parallel action, the Court dismissed the plaintiffs' contention that the Wind Ordinance is "an illegally promulgated zoning ordinance." [The order denying the plaintiffs' motion for partial summary judgment appears here.]
The Court will rule on the surviving claims at a later date. Although the Court cannot be expected to tip its hand at this point in the proceedings, language on Page 17 of the Order on Defendant's Motion To Dismiss suggests that the Town may be in trouble:
"The law is clear on substantive due process and Plaintiffs have clearly stated a claim on this Count. The complaint details the multiple ways in which the Wind Ordinance burdens prospective wind developers that, if factually accurate, may not be rationally related to any valid government purpose."
University of Southern Maine law professor Orlando Delogu has been following this case and offers his view (in an e-mail dated October 4):
"Tough ordinances that seem to regulate, but in reality bar wind energy from an entire town are ripe for challenge...particularly if there are areas within your town that are realistic sites for wind energy development. Legal challenges cost money to defend--sometimes a lot of money, and take a long time to resolve. Is Peru spoiling for this type of fight?"
The proposed ordinance has raised objections from EDP Renewables, the developer currently gathering wind data on Black Mountain in Peru. The company's concerns are posted here. To be taken most seriously is the charge of discrimination. "The sound restrictions specified in the IWEF [ordinance]," writes Project Manager Katie Chapman, "if applied to non-wind activities, would limit or prohibit car, truck, snowmobile, farm equipment, timber equipment, or general commercial, recreational, or residential activities within Peru."
