Agenda - Planning Commission - 07/12/2012

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May 10, 2012 I Volume 6 I Issue 9 Zoning Bulletin The preamendment version of this definition applied to TransCanada's project in this case. Thus, factors such as "property tax payments resulting 3. from the development" and "other payments to a host community" were not explicitly included in the applicable version of § 3451(19), and TransCanada was not required to make "payments under a community benefit agreement" to satisfy the definition of "tangible benefits." Friends of Boundary Mountains ("FBM") appealed from LURC's decision approving the issuance of the permit to TransCanada. Among other things, FBM argued that LURC erred in finding that TransCanada's wind energy project would provide "significant tangible benefits," as required by Maine statutory law-12 M.R.S. § 685-B(4-B)(D) and 35-A M.R.S. § 3451(10). Specifically, FBM argued that LURC erred in interpreting the term "tangible benefits" to include TransCanada's grants to DOL and HPEA, as well as the payments proposed in the "community benefits package." DECISION: Decision of LURC affirmed. The Supreme Judicial Court of Maine held that LURC's interpretation of "tangible benefits" to include grants to the DOL and HPA, as well as pay- ments proposed in a "community benefits package," was reasonable. The court found that LURC properly considered TransCanada's proposed grants and payments. Since the July 12, 2010 amendment clarified existing law, the applicable preamendment definition of "tangible benefits" would include "other payments to a host community" and "payments under a com- munity benefit agreement," said the court. Furthermore, the court found the preamendment version of § 3451(10) could, on its face, also reasonably be interpreted to include (as LURC did) TransCanada's proposed "community benefits package" and the grants to DOL and HPA. FBM however, had also disputed whether TransCanada's payments were "attributable" to the construction, operation and maintenance of the project, as required by § 3451(10). FBM asserted that the "community benefits package" and grants to DOL and HPA would come from TransCanada's general wealth and would not result from the "construction, operation, and maintenance" of the project. On the other hand, TransCanada and LURC argued that those pay- ments would constitute "tangible benefits" because they would not occur but for the construction, operation, and maintenance of the project. The court explained that to the extent the term "attributable" is ambiguous, LURC's interpretation was reasonable and should be accorded deference. Moreover, the court found that given the goals of the Wind Energy Act —to encourage the development of wind energy production in Maine in a manner that ensures significant tangible benefits to the people of Maine—LURC's broad interpretation of the term "attributable" furthers the purpose of the stat- ute as a whole. The court found that payments to host communities, such as those at issue here, benefit those communities and the state regardless of whether they flow directly and organically from the project itself or from the applicant's own wealth. Thus, concluded the court, in either case, such pay- ments would not occur or benefit the state but for the approval and resultant "construction, operation and maintenance" of the project. 10 ©2012 Thomson Reuters