City of Belfast, Water District, Nordic Aquafarms Inc. respond to lawsuit against them

Posted:  Monday, August 27, 2018 - 6:45pm
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BELFAST — The City of Belfast and the Belfast Water District have filed separate responses to the civil suit brought against them by two Belfast residents, Ellie Daniels and Donna Broderick, who live on property abutting the planned location of a large indoor salmon farm.

In an Aug. 8 prepared statement, Daniels and Broderick stated the city, “abused its powers by approving April 17 zoning and comprehensive plan amendments without following state statute and local zoning ordinance process for planning board and community involvement.”

For their part, the attorneys for the Water District filed their response Aug. 16, denying the majority of the 48 claims made in the amended complaint, which was filed Aug. 5.

Out of the 48 points included in the amended complaint, counsel for the Water District, attorneys Andrew Hamilton and Patrick Lyon, both of Eaton Peabody, denied 26 points entirely.

One area of contention for the Water District is whether the organization is a Party-of-Interest with regard to the lawsuit. Lyon and Hamilton argue that the decisions and procedures in question were made by the City of Belfast, not the Water District.

Nordic Aquafarms, Inc. also denied their company was a Party-In-Interest in the plaintiffs’ claims in their response, which was received by Waldo County Unified Court Aug. 17.

Of the points Lyon and Hamilton admitted to, the majority were facts not in dispute, such as the location of the property, the location of the organizations involved (City of Belfast, Nordic Aquafarms Inc., and the Belfast Water District), and the fact that Nordic Aquafarms first approached the Water District last fall.

Some of the many denied points in the Water District’s response include the assertion that during 2017 and January 2018, the City Council held multiple executive sessions “to discuss the proposed Nordic project, as well as certain contracts with Nordic and the Water District, and the need for changes to the Zoning Ordinance and Comprehensive Plan.”

The City of Belfast also denied this claim in their response to the suit, writing: the City of Belfast’s agendas for City Council meetings speak for themselves as to the dates of the executive sessions and their purposes.

Lawyers for the city did admit to a portion of the claim made, noting: “admit that the City Council for the City of Belfast held executive sessions relating to its real property relating to the underlying agreement in Exhibit B to the Plaintiffs Amended Complaint. Deny, any inference that Executive Sessions were improper or unnecessary — to the contrary, they were both necessary and legally appropriate.”

Lyon and Hamilton also denied that “on January 31, 2018, Wayne Marshall, the City’s Planner, met with the Belfast Planning Board in a Work Session to inform the Planning Board that Nordic’s proposed project will require amendments to both the City Zoning Ordinance and its Comprehensive Plan.”

Lyon and Hamilton denied that “at the January 31 Planning Board Work Session, the City Planner informed the Planning Board that it would not be involved in the review of either the Zoning Ordinance or Comprehensive Plan amendments,” and that [Wayne Marshall] “informed the Board that the City Council and Department Staff will be taking charge of developing and reviewing the amendments.”

In their response, the City of Belfast admitted that “the Director of Code and Planning met with the Planning Board on January 31, 2018, and discussed multiple issues relating to the Options and Purchase Agreement and attachments thereto as reflected in the record.” They “denied the balance of the accusations.”

The City of Belfast also admitted that “the Director of Code and Planning discussed multiple issues with the Planning Board regarding the Planning Board involvement including the fact that he wished for the Planning Board to not personally participate during the legislative amendment process so that they could avoid even the allegation of bias or unfairness if and when any related Site Plan Permit Application would be presented to the Planning Board.”

In total, the City of Belfast either outright denied or partially denied 39 out of 48 claims made in the amended complaint.

All three defendants named — the City of Belfast, Nordic Aquafarms Inc. and Belfast Water District — plan for an affirmative defense.

An affirmative defense is a “defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal or civil liability, even if it is proven that the defendant committed the alleged acts,” according to Cornell Law School.

Some examples of an affirmative defense in criminal cases include self-defense, entrapment, insanity, and necessity.

For their affirmative defense, the Water District plans to assert that whether the plaintiffs have standing to sue “raises the question of subject matter jurisdiction.”

“The Plaintiffs have not alleged [the] Belfast Water District caused them any harm and the relief they seek invokes only actions of the City of Belfast. The Plaintiffs have raised no justiciable controversy for this court to preside over between the Plaintiffs and [the] Belfast Water District, and as such this court lacks subject matter jurisdiction over the Belfast Water District.”

The City of Belfast listed eight affirmative defenses in its response to the suit, including estoppel, unclean hands, failure to state a claim on which relief may be granted, satisfaction of procedural due process, satisfaction of substantive due process, failure to exhaust administrative remedies, and failure to file an action within 30 days of the Amendment as required by 30-A M.R.S. _ 4352(10)(B).

According to Cornell Law School, estoppel is “a bar that prevents one from asserting a claim or right that contradicts what one has said or done before, or what has been legally established as true.  Estoppel may be used as a bar to the relitigation of issues or as an affirmative defense.”

Unclean hands refers to the Clean-hands Doctrine, which is “the principle that someone who violates equitable norms cannot then seek equitable relief or claim a defense based in the law of equity.  A party who has violated an equitable principle, such as good faith, is described as having "unclean hands."

Nordic Aquafarms, Inc. also plans to use an affirmative defense with eight points given. These include the plaintiffs’ failure to state a claim upon which relief can be granted and that the plaintiffs’ claim should be dismissed for lack of jurisdiction venue.

Attorneys for Nordic Aquafarms Inc. also wrote that the Plaintiffs’ lack standing to assert the claims alleged in the Complaint, and that the Plaintiffs’ claims are barred under the doctrines of laches, waiver, and/or estoppel, or otherwise untimely filed. They also claim the Plaintiffs claims in whole or in part are moot, that the claims in whole or in part are not ripe, and that their claims fall in whole or in part to the extent that they have suffered no damages or injury.  

Nordic Aquafarms Inc.’s response ends by stating it “prays that this Court dismiss Plaintiffs’ Complaint, for their costs, including legal counsel fees, and for such other and further relief as the Court deems just.

In their response, the City of Belfast also took issue with the plaintiffs’ request for relief from the court, writing: “Defendant Prays that the Court deny any and all relief as requested by the Plaintiffs; deny and object that there are any facts, circumstance, common law, statute, or other authority to award the Plaintiffs’ their Attorney’s fees in this matter.”

The City did request that “the Court provide the Defendant with its costs, fees and such other further or equitable relief as the Court deems just and proper.”

 

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Erica Thoms can be reached at news@penbaypilot.com