Attorneys continue municipal law debate in case against Nordic Aquafarms

Sun, 06/23/2019 - 10:00pm

    BELFAST — As the lawsuit against Nordic Aquafarms, Inc., the City of Belfast, and other parties-in-interest continues the slow procession through the legal system, the amount of evidence submitted for the case has grown to require two two-inch binders, holding stipulation exhibits 1-36, which include emails, public notices, and City of Belfast Answers to Interrogatories, etc. The binders are in addition to a legal file also nearly an inch thick filled with court dates, motions, objections, and other legal documents.  

    The suit, brought by Eleanor Daniels and Donna Broderick, has been one of many issues Nordic has encountered on its quest to build one of the world’s largest land-based salmon farms in the small coastal city. While there has been a consistent group of vocal opponents present since the announcement of the plan, in recent months supporters of the endeavor have become increasingly outspoken. A recently formed social media page for supporters has seen signs of support printed and popping up in front of some Waldo County residences.

    Nordic has also upped its social media presence in recent months, creating its own page with which to disseminate information and take issue with any statements from opponents that the company feels are unfair or untrue.

    While social media presences are left to the owners to manage and ensure accuracy, the equally complicated legal proceedings in the lawsuit are relegated to the confines of the courthouse.

    Recently filed court documents indicate that lawyers for the defendants and the plaintiffs remain at odds regarding several statements of fact, with attorneys for Nordic are disputing a large number of additional facts submitted by the plaintiffs.

    Despite disagreeing with a large number of additional facts, in April, attorneys for the plaintiffs and the City of Belfast were able to agree on 33 stipulations of facts. This means that these facts will not have to be argued about in the event of a trial.

    On June 19, attorneys for Nordic submitted ‘Party-In-Interest Nordic Aquafarms Inc.’s Joinder Of City’s Opposition To Plaintiffs’ Statement of Material Fact and Reply to Plaintiffs’ Opposition To City’s Motion For Summary Judgment.’

    In the documents, Attorney David M. Kallin wrote that Nordic “hereby joins the City’s Opposition to Plaintiffs’ Statement of Additional Material Fact and adopts the arguments of the City in Reply to Plaintiffs’ Opposition to the City’s Motion For Summary Judgement.”

    Attorney Kallin further wrote that the issues before the court “are issues of law, not fact,” arguing the court “should find that the City’s Comprehensive Plan was properly amended in April 2018 and not delve into Plaintiffs’ attack on the zoning amendments as inconsistent with the Plan before the April amendment. However, if the Court does reach the issue, consistency with a comprehensive plan is an issue of law - not an issue of fact.”

    The document argues that if the Court invalidates the October 2018 Zoning Amendments, it must invalidate all zoning on the Route One South Business Park property.

    The document states that if the Court accepts the Plaintiffs’ “strained argument to invalidate the zoning restrictions imposed by the new Route One South Business Park, then it must also make the subsidiary declaration that there is no zoning whatsoever on that property consistent with the Comprehensive Plan.”

    The document concludes that the plaintiffs have: “failed to carry their heavy burden of demonstrating that the City’s legislative act of rezoning exceeded the legislative powers of the City Council. Accordingly, the City is entitled to judgment as a matter of law, and judgment should be entered declaring that the zoning provisions of the Route 1 South Business Park and the other amendments from October 2018 are in operative force and effect.”

    If the Court sides with the plaintiffs that the provisions of the Business Park are unenforceable by the City, that “declaratory judgment should include the predicate step (and logical outcome) that there are no zoning provisions whatsoever in operative force and effect in that area of the City of Belfast.”

    Attorney for the defendants, William S. Kelly, filed a Defendant’s Reply To Plaintiffs’ Opposition To Defendant’s Motion For Summary Judgment June 19.

    The document argues that the Plaintiffs “advocate an unreasonable interpretation of the Growth Management Act’s Amendment Provision.

    “The Plaintiffs assert that every single amendment to a comprehensive plan, no matter how minor, requires that a comprehensive planning committee provide the full panoply of public participating procedures listed under 30-A MRSA, including not only ‘soliciting and considering a broad range of public review and comment’ but also the broad dissemination of proposals and alternatives, opportunity for written comments, open discussions, information dissemination and considerations in response to public comments.’”

    The document also argues that Broderick and Daniels arguments about the planning board review are moot, stating that although the plaintiffs continue arguing that the city erred under the city’s zoning ordinance and 30-A MRSA, “the City is entitled to judgment as a matter of law based on the undisputed material facts that the City engaged the Planning Board….” it reads in part.

    “Plaintiffs have provided no rebuttal to the City’s argument that their planning Board claims are moot, and they can point to no error in the Planning Board’s processes or findings that would create a genuine issue of material fact precluding a judgment for the City,” the document continues.

    The Reply also states that the zoning amendments are consistent with the Comprehensive Plan.

    An attorney for the defendants argues that the Court “should find that the City’s Comprehensive Plan was properly amended in April 2018 and not delve into Plaintiffs’ attack on consistency with the Plan before the April Amendment.”

    If the Court does reach the issue, the document states in part that “consistency should be analyzed with respect to both the 2009 Future Land Use Plan and 2012 Comprehensive Plan, as previously and consistently explained.”

    Attorney Kelly’s reply concludes that Broderick and Daniels: “claims about the Planning Board review are moot, and they have failed to satisfy their heavy burden to prove that the zoning amendments are inconsistent with the Comprehensive Plan. The City is entitled to substantial deference, and this Court must not substitute its own judgment for that of the legislative body…. Accordingly, Defendant’s Motion for Summary Judgement should be granted and the Plaintiffs’ Motion denied.”

    Kelly filed another motion June 19, the Defendant’s Opposition To Plaintiffs’ Statement of Additional Material Facts, where he objected to 14 paragraphs which contain “several statements and opinions attributed to Wayne Marshall, the City of Belfast’s Planning Director.”

    According to the Defendant’s Opposition: “To the extent [quoted language] is intended to be supported by Mr. Marshall’s professional knowledge and expertise it should be disregarded as expert opinion testimony…. The City has not designated Mr. Marshall as an expert and the City represented to the Court in the October 10, 2018 conference that it would not be requiring any expert testimony.”

    The document states that in the present case, “the City relies upon numerous statements made by Wayne Marshall, the City Planner in support of its Motion for Summary Judgment and in Opposition to the Plaintiffs’ Motion for Summary Judgment. The statements relied upon are not opinions for the most part, and if they are, they are not expert opinions but are permissible lay opinions based on Mr. Marshall’s firsthand experiences in the City of Belfast’s Planning Office over the past 20 years.”

    The defendant’s response to plaintiffs’ Statement of Additional Facts was also included, with seven additional material facts either qualified or denied by defense attorneys. Six of the alleged additional facts were denied outright by Attorney Kelly, while two others were qualified. One point was partially qualified and partially denied.

    Eleanor Daniels and Donna Broderick’s attorney, Bruce A. McGlauflin, Esq., of Petruccelli, Martin & Haddow, LLP, filed a Reply to Defendants Opposition to Plaintiff’s Motion For Summary Judgment in Waldo County Superior Court June 20.

    According to the document, “The City argues that the history of its dealing and its pre-zoning commitments to Nordic are not material to: “legal questions raised about the legislative process the City used to amend the comprehensive plan and zoning ordinances…. But, the City offers no rebuttal to the rule that evidence of motive ‘where the Councilors they possess the power to adopt the April Amendments because they did not exercise that power in a mode prescribed or authorized by organic la’”…. Here, the Councilors did not possess the power to adopt April Amendments because they did not exercise that power in the manner prescribed by the Growth Management Act, the City Charter, and the City Code.”

    They argue that the Court must consider the language in the context of the entire statutory scheme and that the Plaintiffs proposed interpretation is “disloyal to the plain statutory language and leads to absurd results.”

    Attorney McGlauflin wrote that the facts recited in the Plaintiff’s Statement of Material Facts describe “the actions of the City that directly and indirectly contributed to the adoption of the amendments in a manner that exceeded the Council’s authority.”

    Attorneys for Broderick and Daniels wrote that “contrary to the City’s assertion,” they don’t challenge the “timeliness” of the City’s action; “they challenge the City’s decision to skip steps in the process that were mandated Title 30-A, the City Code, and the City Charter.”

    The document states that it is the City that has been concerned about time and that it is “undisputed” that the City chose to exclude its Comprehensive Planning Committee (PSMF, 31, 34, 35) and its Planning Board from the amendment process, according to the document.

    Lawyers for Broderick and Daniels sum up the City’s primary defense as “its contention that the Council has the discretion to exclude the Comprehensive Planning Committee in “minor” or “targeted” amendments to the Comprehensive Plan. Despite these claims, the document notes the City can “cite no provision in the Growth Management Act that expressly or impliedly allows such exceptions.”

    They further argue that the City’s interpretation would allow municipalities to never engage their Planning Committee in the amendment process, noting that it claims discretion for “minor” and “targeted” amendments, meaning other municipalities could invent their own standards.

    “It is not reasonable to conclude the Legislature intended municipalities could invent their own standards for evading citizen participation proceedings, which is a fundamental component of the Act.”

    They argue that engaging the Planning Committee “need not be the onerous process suggested by the City….Instead, the City wants the “discretion not to delegate a function in the interest of efficiency,” by choosing in which amendments the citizenry may be engaged….The Legislature already delegated the function to the Planning Committee in the interest of citizen engagement.”

    The document concludes by stating that there are no “genuine” issues of material fact as to whether the April 17 Zoning and Comprehensive Plan Amendments failed to comply with State and local law and whether the April 17 and October 16 Zoning Amendments are consistent with the Comprehensive Plan.

    “Accordingly, Plaintiffs are entitled to summary judgment on both questions, declaring [the amendments] null and void.”

    Attorney McGlauflin filed Plaintiffs’ Reply to Party-In-Interest Nordic Aquafarms, Inc.’s Opposition to Plaintiff’s Motion for Summary Judgment the same day.

    In that document, McGlauflin wrote that Nordic’s Opposition Memorandum is largely: “a re-packaging of the arguments made by the City in its Opposition. Nordic repeats the City’s incongruous contention that Plaintiffs challenge the “timeliness” of the April 17 Amendments. Omitting steps in the amendment process, not timeliness, is the issue. Time was on the minds of the City and Nordic, which resulted in noncompliance with legally mandated procedures.”

    The document claims that Nordic repeats the City’s “erroneous interpretation of the reference to “and on surrounding lands” in the stated goals for the Business Park area in the 2009 Plan. Nordic also repeats the “City’s mischaracterizations of the Nordic rezoning as affecting “a small parcel of land.”

    The document maintains that the April Amendments are invalid “because the City failed to comply with prerequisite steps in the process that are mandated by State law, City Code, and the City Charter.”

    The document ends by stating the Plaintiffs “are entitled to summary judgment on both questions declaring the April 17 Zoning and Comprehensive Plan Amendments and the October 16 Zoning Amendments null and void.”

    McGlauflin also filed Plaintiff’s Reply to Defendants Opposing Statement of Material Facts the same day.

    Erica Thoms can be reached at