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Biomass Bulletins: Council ZBA Appeal on Hold…

Kazakh Chimney (Wikipedia)

The fight to stop a wood-burning electric plant on Page Boulevard lumbers on despite the recent victories of the plant’s many opponents. Palmer Renewable Energy, the plant’s developer has appealed both the City Council’s revocation of the plant’s special permit and the decision of the Zoning Board of Appeals to revoke their building permit.  The appeals are presently before the Land Court in Boston.

This week, however, proponents and opponents of the plant were before the Zoning Board of Appeals once again.  The appeal that was accepted by the Board in January was actually the appeal of residents including local activist Michaelann Bewsee.  The Springfield City Council, however, also appealed the building commissioner’s decision to issue PRE a permit last year.  That appeal remains before the Board.

However, the Board did not take action on the Council’s appeal after they received a letter from PRE threatening litigation against councilors and/or Board members personally if they pursued the matter.  According to sources from Wednesday’s meeting, PRE considered the Council’s appeal moot (which theoretically it is) and that continued pursuit of the appeal would cost PRE money in, legal fees, opposing it.

The statute PRE allegedly cited would actually have applied against Board members rather than Councilors, who would be indemnified under Massachusetts General Law ch. 258 Section 13.  Moreover, such a suit against any official is unlikely to prevail.  Councilors asked for a continuance, which was would allow them to hold off on the appeal for up to another 90 days.  However, the result could work out for PRE, too.

PRE probably does not want the Council’s appeal to go forward because their legal strategy to overturn the ZBA’s ruling likely rests on whether or not Bewsee and her fellow appellants have standing to challenge the permit at all.  While hardly certain, PRE can make a case before a judge that Bewsee and the other resident appellants are not aggrieved by the issuance of the building permit.  By contrast, the council as the author of the zoning ordinance, is explicitly granted standing by state statute.

Were PRE able to knock out Bewsee for standing, the Land Court would have to overturn the ZBA’s ruling regardless of the merits of her argument.  If that ruling were to come within 90 days of this past Wednesday, however, the Council could quickly urge another hearing before the ZBA and get their own appeal sustained on firmer standing grounds.  Regardless of outcome in Land Court, it seems all, but certain that PRE or opponents will pursue the matter to the Appellate and Supreme Judicial Courts.

Should standing remain either for Bewsee or under a Council appeal and PRE’s challenge to the Council’s revocation of the special permit fails, the legal hurdles for the biomass plant rise considerably.  To overturn the ZBA, the Land Court or any appeals court would need to find that the ZBA could not have reasonably reached its decision based on the evidence before it.  Although the reviewing court, that is the Land Court, takes the appeal of the ZBA de novo, that is with a fresh look at the evidence, it cannot substitute its judgment for that of the ZBA’s.