|Biomass Protesters at Revocation Hearing last year
This Wednesday Springfield will see perhaps the highest profile showdown over the proposed biomass facility on Page Boulevard since the Springfield City Council revoked Palmer Renewable Paving’s permit. Indeed, this may be more of a nail biter as most of the 2/3 of the council that voted to revoke had telegraphed for weeks that the PRE’s project and its changes made it ripe for revocation. Wednesday, however, will be something different. For the first time an independent body will assess the council’s decision to revoke PRE’s permit. This is very different from the permit granting process PRE faces before the Department of Environmental Protection, where the issue is not the validity of the revocation or Building Commissioner Steven Desilets’s permit, but one of air quality.
The overall argument of the appeal is that the building commissioner acted beyond his authority to issue the building permit. It boils down to several arguments.
The first issue is whether Desilets acted in direct contravention of state law when he gave PRE their building permit. Appellants are expected to argue this point first and foremost since it is probably the most airtight argument. Massachusetts regulations say that before a building permit can be issued all other permits must be received first. However, this does not turn on the special permit as its necessity is under dispute anyway. Rather, appellants will likely point out that the commonwealth’s Department of Environmental Protection has yet to issue PRE’s air quality permit. The Conservation Law Foundation and local groups had opposed PRE’s receipt of that permit as well, but were uled to not have standing by a DEP hearing officer considering the case. That hearing officer was overturned by the DEP commissioner who ordered the hearing officer to consider the matter again on the merits. Consequently, there is no air quality permit and remains in litigation.
|Largest Smoke Stack in the World (wikipedia)|
These second two issues will undoubtedly reappear if the ZBA chooses to only reverse building permit on Wednesday on the narrowest grounds. Indeed, they will likely reappear before the ZBA, unless the board sides with the building commissioner on the air permit. If the board decides to rule beyond PRE’s lack of an air permit, then there will almost certainly be an appeal regardless of who wins on the other grounds. If the ZBA rules in favor of the building commission the citizens groups and the council will appeal. Biomass opponents on the council still have more than enough votes to appeal to court. That raises significant questions about the council’s ability to represent itself because they cannot appropriate money, but none of the biomass opponents seem particularly worried about that.
The ZBA will have up to ninety days from the date of appeal (December 7, 2011) to make their decision. An affirmative vote is required. As an appeal is likely, the losers will have 20 days to appeal to court. If the council is on the losing end, it will likely need a special meeting to vote to appeal to court in enough time and survive a Rule 20 invocation.