Move to 'shut down' public comment raises questionsVideo shows DCP attorney requesting comments cease
Searsport — A video clip shot during the four-hour Searsport Planning Board meeting Monday, June 11, has raised ire among those who are wary of a proposed 22.7 million gallon liquefied petroleum gas terminal coming to town and raised broader questions about how and when the public can weigh in on the matter.
Monday morning, June 18, the Journal received an email from Peter Taber of Searsport, a resident who has openly opposed the proposed development since the news of Colorado-based DCP Midstream's interest in building an LPG storage facility at Mack Point in late 2010.
In his message, Taber included a link to a video clip that is about three minutes in length, and shows the start of the portion of the meeting that was dedicated to public comment.
As was reported in the account of the meeting that was published in the June 14 issue of the Journal, the clip depicts DCP Midstream attorney Kelly Boden with the Portland-based law firm Verrill Dana approaching the microphone and requesting the right to respond to some of the public comment, a move that was met with an unfavorable reaction from the crowd.
Less than a minute later, the video clip shows what happened next, when a second DCP attorney, James Kilbreth, stood, walked around the back of the room and approached Planning Board Chairman Bruce Probert and the planning board's attorney, Kristin Collins, with the Belfast firm of Kelly & Collins LLC. Within a few seconds, viewers clearly hear Kilbreth saying, "Better shut this down."
But, as reported last week, the public comment continued, although Probert limited individual comments to a couple of minutes each and the entire comment period to 30 minutes, due to the overall length of the meeting.
Tuesday morning, DCP Midstream spokeswoman Roz Elliott said there was an effort on the part of company attorneys to stop the public comment, as it was being presented at the June 11 meeting, for several reasons.
First, said Elliott, company counsel felt some who were expressing opposition to the proposal were treating the public comment period more as a public hearing, and Elliott said the two forums are very different in nature.
"There will be a public hearing that the Planning Board will schedule, and that is the time for people to offer their testimony," she said. "That is when the applicant can address the comments from the public."
Elliott said in a regular meeting setting, such as what was the case June 11, there is no procedure that allows an applicant to respond, point-by-point, to members of the public.
And, Elliott added, the company objected to the nature of what was being said, particularly sentiments offered by local opponents of the project, and in some cases, where the comments were coming from.
"It was the same small group of people," said Elliott of some of the speakers, noting they were "introducing testimony that was inaccurate and prejudicial" in a "highly inappropriate venue."
Elliott also stated many of the people who offered comments were not Searsport residents and therefore "do not have standing when it comes to a town issue."
Additionally, Elliott said verbal comments are not retained as part of the formal record when it comes to the Planning Board's overall consideration of the application, a statement Probert confirmed Tuesday. Written comments to the Planning Board on a pending application, Probert said, are included in the formal record.
Probert said that as the Planning Board chair, he can end the public comment period at any time, at his discretion, depending on the circumstances. Monday night the public was permitted to speak, and the board voted to move the public comment period to the end of the agenda, so the public could speak to any details brought up during the company's application review.
The Planning Board, explained Probert, has added the public comment period to its agendas within the last few years, taking the lead from the Board of Selectmen, a group that has long offered that opportunity to those who attend the meetings.
But Probert said this is the first time the Planning Board has encountered an application that has generated this much public interest, and as much public comment as it has.
"We haven't had a project like this, that's this big and this divisive," he said.
Over the last several weeks, the Planning Board has held special meetings for the purposes of reviewing the more than 700-page project application, as well as copies of the company's permit applications with the Department of Environmental Protection, the Army Corps of Engineers and the U.S. Coast Guard.
Given the fact that the board deemed the application incomplete at its last meeting due to the lack of a permit from the state fuel board, the board won't be reviewing the application for completeness until the company secures the permit. The board allowed DCP 60 days to secure the permit, but once that's done the board must continue its effort to decide on whether the application is complete, hold public hearings and eventually, make a final call on the project.
In the past, Probert said, the Planning Board rarely received any public comment, because there was typically little or no public participation at the meetings. When the public did address the board, the comments were usually intended to "take a shot at the Planning Board."
Speaking to the public comment period at the June 11 meeting, Probert, like Elliott, said the comments were more like what he'd expect to hear at a public hearing.
"But it was not a public hearing, the applicant had no chance to respond back, because they were the general public at that point," said Probert.
Probert said he has consulted with the board's legal counsel on the matter and he expects the board will take steps for the Monday, July 9, meeting to "correct that," adding that members of the public will likely be advised to refrain from offering any testimony on a pending application "until further notice."
Once the board determines that the application is complete, it must schedule a public hearing within the next 30 days, and Probert said if the board felt it needed more information from the public, the hearing could be re-opened at any time.
Probert said the board is doing its best to move through the application process, and sought understanding from those who feel the board is rushing the process and patience from those who feel the board is taking too much time on the matter.
"It has a process, and it's working its way through," he said.
Elliott said that despite the company's dissatisfaction with the way some in the public treated the public comment period at the last board meeting, the company is pleased with the performance of the town planners so far.
"We think the Planning Board has done just a wonderful job," she said. "They're working really hard to evaluate the project's compliance with the ordinances."