Today the Natural Resources Council of Maine (NRCM) filed with Maine Superior Court an appeal of the decision by Maine’s Land Use Regulation Commission (LURC) to approve Plum Creek’s development proposal for the Moosehead Lake region. After careful deliberation and extensive legal analysis, NRCM’s Board of Directors voted last week to authorize the appeal.
“We believe that LURC violated established laws governing how the agency was required to conduct this proceeding,” said Brownie Carson, NRCM’s executive director. “After consulting with legal counsel, our board concluded that the violations are of sufficient significance that the Court should overturn LURC’s decision.”
On September 23, 2009, LURC approved Plum Creek’s rezoning application for more than 2,000 new residential units, including three resorts and other development in ten different development zones around Moosehead Lake.
“After a thorough review of the legal issues, we decided that this action must be taken,” said Carson. “Our analysis shows that LURC violated the laws and rules that govern how Plum Creek’s application should have been reviewed. LURC invented a process for this case for which there is no legal basis,” said Carson. “As a result, the Commission approved a final concept plan that was substantially written by its own staff and consultants, who acted as advocates for the plan. The concept plan includes elements that we believe never would have been approved had LURC not exceeded its legal authority.”
LURC’s failures began in early 2008. Following the close of several weeks of hearings, the Commission concluded that Plum Creek’s plan did not meet the regulatory requirements necessary to earn an approval. As summarized in its final decision, LURC wrote, “The Commission determined that Plum Creek’s October 2007 Zoning Petition did not satisfy all of the regulatory requirements for concept plan approval.” LURC’s final decision document also states that Plum Creek itself knew that its plan was deficient, stating that Plum Creek “had conceded that the concept plan as filed, in light of its size and complexity, was imperfect,” and contained “certain flaws, including those identified through the hearing process.”
“Rather than denying the application at that point in the process, as it was required to do by its own rules, the Commission instead initiated an unprecedented, unauthorized, and unlawful procedure in which LURC staff and consultants drafted Plum Creek’s final plan for them. This is not allowed under Maine law. It’s as if a jury at a trial decided not to return a verdict, opting instead to rewrite the plaintiff’s claims.
“We plan to persuade the Superior Court, and the Law Court if necessary, that LURC deliberately avoided its legal responsibility to deny Plum Creek’s deficient concept plan, and then illegally switched to a planning process run by LURC staff and consultants. In a proceeding like this, LURC does not have the option of assigning staff and consultants the role of redesigning the applicant’s proposal.
“LURC’s rules and regulations exist to ensure fairness, due process, and predictability to all interested parties. The approach that was taken here violated each of those principles. LURC’s unlawful processing of the Plum Creek proposal cannot be allowed to stand. Doing so would introduce complete uncertainty about LURC’s role and what rules it will apply when considering future applications.
“It is important to view what LURC did from all perspectives. How would an applicant respond if the reverse had taken place? What if, at the close of the hearing, LURC found that the applicant had met all legal requirements but, because it wished to deny the application, it directed its staff to reinterpret legal criteria so that the application failed to meet them? The randomness introduced by this precedent could create major problems in the future. In this case, the Commission’s staff and consultants introduced development proposals in the final concept plan that Plum Creek itself had never requested.
“At the conclusion of the Plum Creek proceeding, some Commissioners stated that the approach that had been used could serve as a model for future concept plans. From NRCM’s perspective, this is a serious problem. Doing so would sanction a process that violates Maine law and LURC’s rules and puts LURC staff in the position of representing the developer’s interests instead of representing the public interest. We cannot sit on the sidelines and allow such a precedent to stand uncontested.
“One of NRCM’s responsibilities is to protect the integrity of the process by which environmental decisions are made by state agencies, including LURC. LURC has an important job: protecting and enhancing the principal values of more than 10 million acres of land that include some of Maine’s most significant lakes, rivers, forests, mountains, and natural landscapes. That is why a violation of law and administrative process like this is so unacceptable.
“LURC was supposed to have developed a prospective zoning plan for the Moosehead Lake region, as called for by LURC’s 1997 Comprehensive Land Use Plan. It appears that LURC staff and consultants, and the Commission itself, came to believe that their improvised approach with regard to the Plum Creek application might somehow fulfill this neglected planning priority. But this was not so, because the approach they used violates the rules for a prospective planning effort, and the Commission cannot pretend to develop a regional plan for the Moosehead Lake area when the process was entirely driven by the interests of only a single landowner.
“We are asking that the Court overturn LURC’s approval of Plum Creek’s plan that, by LURC’s own conclusion, was inconsistent with the laws and rules that protect the interests of Maine people, and the wildlife and environment of the region. This court action should result in a better future for the Moosehead Lake region, either through a true regional planning process initiated by LURC, or by a scaled back development proposal offered by Plum Creek.”