BELFAST — In its ongoing efforts to halt Nordic Aquafarms’ proposed land-based fish farm, Upstream Watch is appealing a Waldo County Superior Court judge’s decision to dismiss the group’s petition for judicial review.

At issue is the Belfast Zoning Board of Appeals’ finding that Upstream Watch did not have standing to appeal Planning Board permitting for the fish farm.

The activist group on Dec. 14 filed a brief with the Maine Supreme Judicial Court outlining the group’s claim that the Zoning Board of Appeals erred in its March 4, 2021, decision that Upstream Watch did not have standing to appeal the Planning Board’s decision.

The Zoning Board of Appeals reached that determination based on information in the group’s appeals paperwork, which was submitted within 30 days after the Planning Board approved Nordic’s permits. That 30-day window was the amount of time an aggrieved party had to file an appeal from the date of the Planning Board’s permitting decision.

After Upstream submitted its appeals documentation, the board during a February 2021 meeting asked the group to submit more information to prove its standing. Upstream submitted that additional information outside the 30-day window.

The Appeals Board ultimately decided not to consider the additional information because it came outside the 30-day period. Instead, the board based its standing decision only on the information Upstream submitted in its initial appeal documentation.

Upstream Watch appealed that decision to the Waldo County Superior Court, which on Sept. 1 dismissed the group’s petition for judicial review. Judge Robert Murray found that the city made no error when it refused to consider evidence about its standing that Upstream submitted outside the 30-day window.

In its Dec. 14 filing, Upstream Watch claims that by asserting the group should have proved standing solely on the appeals documentation, the Zoning Board of Appeals denied Upstream the opportunity to be heard. “In doing so, the Appeals Board acted unlawfully and not only abused its discretion but displayed its hostility to the rights of Upstream and its members,” the brief states.

Upstream also argues that because the Zoning Board of Appeals asked the group for additional information regarding standing, the Upstream was entitled to a notice that its standing was being challenged and should have had the opportunity to present that evidence.

There is no language in the city ordinance or state statutes that prevents an applicant from submitting additional evidence for proof of standing outside that 30-day window, according to the brief. Applying that time limit to the additional information Upstream submitted for proof of standing violates the Zoning Board of Appeals’ February 2021 decision to ask Upstream to submit more evidence for standing.

Upstream Watch argues that it had already demonstrated its standing to the Planning Board, which is reflected in the record the Appeals Board would have been tasked to review, according to the brief. Proof that some of Upstream’s members’ properties could be damaged directly or indirectly by the proposed development was in that Planning Board record.

Zoning Board of Appeals members wrongfully applied a test called “particularized injury” to determine standing, which Upstream argues is not required under the Belfast ordinance that governs appeals. However, Upstream claims it did provide evidence that would satisfy that test.

The group also claims the Superior Court erred in denying its appeal because there is nothing in the city’s ordinance that limits a party to having one single opportunity to establish standing within the 30-day appeal period, according to the brief.

“The Superior Court’s reasoning is clearly flawed, as there is no language in the Belfast ordinance that puts an aggrieved party on notice that a party does not have standing if it is not proven in detail on the initial appeals form,” the brief states.

In its filing, Upstream asks the court to determine that the group has standing to proceed with its appeal of the Planning Board’s permitting decision and determine that the Zoning Board of Appeals erred in its decision not to consider evidence Upstream submitted regarding standing. The group ultimately asks for the matter to be remanded to the Zoning Board of Appeals for a full hearing on the group’s Planning Board appeal.

Nordic plans to build a $500 million land-based salmon farm on a swath of land off of Route 1 and next to the Little River. Upstream Watch and others have expressed concerns about the impact the development could have on air quality, water quality, the amount of water Nordic plans to use and other factors.

City councilors have expressed support for the proposed facility. The city will submit its briefs in the coming weeks, City Attorney Kristin Collins said in an email to The Republican Journal. “We believe the Superior Court’s decision was well-reasoned and very likely to be upheld,” she said.

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