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Community Corner

Outside - Looking In (Propane)

As Chairman of the EH IWWC I have been following this application with great interest. I for one would not want this heard in front of my commission.  I do though want to put something out there playing devil's advocate.  One, I hope if a denial is issued the residence understand the applicants rights to appeal to Superior Court and if needed to the Ct Appellate Court.  Two, if approved the factors the commission must take in consideration in doing so.. Both relate to recent court rulings which resulted in over turning of denials.

Starting with what has become known as "River Bend" back in 2004, where the Appellate Court over turned a denial for the Commission failed to show a "substantial basis of fact" that the activity would impact the regulated areas.  The court sided that showing a fear of environmental impact, mere speculation or just a general concerns of an impact do not qualify as substantial reasons to deny.  The River Bend ruling has been upheld by two recent court cases in-which denials were overturned for failure to establish on the rcord an actual impact will happen, not just speculation or general concerns.  One is Avalon Bay in 2011 and most recently the Casimir Machowski v. IWWA case in 2012.  The Commission must take these rulings into consideration.

There is one more factor the commission must remember.  In Huck v. IWWC the courts ruled that the commission is not required to believe any witness even an exppert, not their own technical staff as long as the hearing was fundamentally fair.  But, when information is offered on a scientific or technically complex issue not within their knowledge as lay members, they cannot disregard that technical information.

This application is not wanted and many good reasons have been placed on the record.  But good reasons sometimes don't back-up a denial.  The approval or denial must come from one thing, how it will impact the wetlands or watercourse on-site and that must be backed up with substantial evidence.  The Guilford IWWC just maybe between a rock and a hard place in whatever ruling they make.  Approve a highly un-popular application for the concernss cannot be factually substantiated or deny and hope that denial can uphold on appeal.  Sometimes a highly contested application must be approved leaving the denial to another agency.

Like I first stated, I would not weant this in front of my commissions.   Good luck Guilford.......   

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