Appeals Board upholds planning-board findings on Nordic permits, exempts smoke stacks from height rules

The Belfast Appeals Board on Tuesday continued deliberations on five consolidated appeals of planning-board permits for the Nordic project, voting to uphold the planning board's factual findings on water-quality and groundwater issues while ruling that generator exhaust stacks should not be counted toward building height and that intake/discharge pipes are not subject to ordinary setback requirements.

The board voted unanimously to find that the planning board had substantial evidence supporting its determinations about wastewater-discharge and municipal water-supply capacity, and later adopted the planning board's ten findings for the significant-groundwater-well permit, including monitoring and operating requirements and a $250,000 long-term performance guarantee.

The planning-board attorney, Kristen Collins, told the board that condition 37 was intended as a backstop in light of pending litigation and that the planning board's review was limited to the documents that were before it at the time. "No one has appealed the content or the legality of condition number 37," Collins said, adding that the planning board relied on deeds, an easement purchase-and-sale agreement and other record materials to determine right, title and interest.

Why it matters: The rulings affect how the proposed Nordic facility may be constructed and the legal footing for any future enforcement or permit conditions. The board repeatedly framed its task as reviewing the planning board's record under a substantial-evidence standard rather than re-litigating title disputes or re-doing technical calculations.

Board counsel and members spent substantial time on interpretive questions that could create precedent for future projects. On height, members discussed the ordinance definition that excludes chimneys and other appurtenances that have "no usable floor area." The board concluded the stacks are appurtenances that do not add usable floor area and voted to rule they should not be counted as building height. "The stacks really don't occupy any other usable floor space," one member said during debate.

On setbacks, the board concluded intake and discharge pipes perform a water-dependent utility function and are not buildings subject to the residential setback table. That motion likewise passed unanimously.

The board also weighed extensive record evidence about wastewater and groundwater. Members referenced the Maine Department of Environmental Protection (DEP) wastewater-discharge license and multiple hydrogeologic assessments, peer reviews and monitoring plans when assessing whether the planning board had a reasonable evidentiary basis. Counsel noted the role of federal/state anti-degradation principles under the Clean Water Act in the larger regulatory context.

On groundwater, the planning board's decision required a monitoring program for wells within 1,000 feet of the project boundary, and the board pointed to several findings and performance standards in the record (including an independent peer review and a $250,000 performance guarantee) as support for the planning board's conclusions. The Appeals Board voted to adopt that view.

The Appeals Board did not, at this session, issue a final written notice of decision. Staff said the written notice of decision must be produced within seven days of the board's final vote and that members will have an opportunity to review and adjust language in the draft. The board scheduled follow-up meetings, including a session next Tuesday from 6 to 8 p.m., to continue remaining deliberations and finalize written findings.

Actions recorded at the meeting included formal motions and unanimous votes to: exclude exhaust stacks from building height calculations, exempt intake/discharge pipes from ordinary building setbacks, find the planning board had substantial evidence on wastewater- and municipal-water-related findings, and adopt the planning board's ten groundwater-well findings and conditions. The written notice of decision will reflect these provisional votes when it is drafted.

The Appeals Board reconvenes next Tuesday evening to continue deliberations and to guide the staff draft of the written notice of decision.