It’s been more than a year, since the state approved one of the largest development projects in Maine’s history—a plan by Plum Creek Timber Company to build two resorts and more than 820 homes in the Moosehead Lake Region. But its approval by the state’s Land Use Regulation Commission, or LURC, is still being fought in the courts by several environmental groups, who are worried about overdevelopment. Today, the Maine Superior Court took up an appeal of LURC’s decision.
Central to the argument by environmental groups is that LURC violated the rules by amending the plan after a four-week public hearing process was over.
“There are a massive number of changes that were made after the adjudications had closed, and they’re not based on adjudications because those issues didn’t exist the time that the hearing was,” said Phil Worden, an attorney representing the Forest Ecology Network and RESTORE: The North Woods. The Natural Resources Council of Maine is also part of the suit.
Worden says LURC moved housing units out of a particular area in response to concerns about environmental impact only to move them elsewhere.
“Imagine if you go through an adjudicatory hearing, and you’re doing things like traffic studies and corss-examining Plum Creek’s experts on traffic or on all the various impacts on animals or whatever, and it’s all based on there’s going to be so many units here, so many units there,” he said. “Suddenly after the hearing is closed, with no right any longer for us to cross-examine the issue of how these decisions were made, they’re suddenly moving units from here, but they don’t just disappear, they move them somewhere else.”
Justice Thomas Humphrey put the environmentalist’s argument to assistant Attorney General Gerald Reed, who was representing LURC.
“They don’t quibble with the commission’s authority to evalute Plum Creek’s petition, identify its deficiencies, suggest corrective measures that would make it appropriate, but that having done that, they failed to follow their own rules of practice–meaning public hearings and the like,” Humphrey said.
Reed replied that the amendments to the plan are an element of the public hearings. “There weren’t new evidence that needed to be tested through cross-examination, and notably, the petitioners are unable to identify to the court anybody who they needed to cross-examine, except apparently one of the commission’s own consultants, who under the Administrative Procedures Act, is treated as a member of the agency’s staff–they’re not available for cross-examination.”
It’s not clear when Justice Humphrey will make a decision about whether to overturn LURC’s decision–or even to proceed with the case. The state is making the case that the environmental groups do not have the legal standing to challenge the LURC decision.
But Cathy Johnson, the North Woods Project director for the Natural Resources Council of Maine, is optimistic that Humphrey will see the merits of their case, and void LURC’s decision, “and send it back to LURC, and if LURC wants to proceed with these amendments, and new evidence and new information, then they should have a public process and allow the public and intervenors like NRCM to cross-examine witnesses who are putting forth these new ideas.”
Plum Creek, which also had representation in court, says that it’s waiting for the court outcome before moving forward with any development projects. Mark Doty is their spokesman in Maine.
“We feel that LURC has the legal authority over concept plans and has for many years, and its decision in the matter was reached after proper review,” Doty says. “We expect that the court review will have the same findings, so when the court is done reviewing, we plan on moving ahead.”
Aside from the development project, Plum Creek says its plan also calls for more than 360,000 acres of conservation easements, with forestry and wildlife protections. The environmental groups counter that even if Plum Creek’s development plan doesn’t go through, the terms of the easement last for up to five years–plenty of time, they say, for LURC to do a new zoning plan for the area.
