ALFRED — A plaintiff who filed a complaint against the waste-to-energy incinerator in downtown Biddeford is asking that York County Superior Court reconsider its decision to dismiss the complaint.
On April 16, Superior Court Justice Paul Fritzsche rendered his decision to dismiss, with prejudice, a case filed by Saco resident Mark Johnston against Maine Energy Recovery Company.
Since then, the former mayor of Saco said he’s received numerous phone calls from people telling him not to give up.
“The judge erred on his interpretation, we allege,” said Johnston.
He noted that judges hear myriad cases and are often overwhelmed.
“We’ve done more research than he probably had the opportunity to do,” said Johnston.
Joe Fusco, spokesman for Casella Waste Systems, Inc., Maine Energy’s parent company, said, “We think the court made the right decision. We’re confident the court will rule the same.”
The complaint was dismissed with prejudice, which means it cannot be refiled, so according to Johnston’s attorney Eric Cote, the only two options were to file a motion to reconsider the decision or appeal to the Maine Supreme Court.
If the judge denies the current motion, Cote said, his client plans to appeal.
Last year, Johnston filed a suit alleging the Maine Energy incinerator emits offensive odors, which injures him and his enjoyment of his property. He cited Maine nuisance laws as the basis of his complaint.
Johnston asked the court to order Maine Energy to stop producing odor or, failing that, to order the incinerator to shut down.
In his decision, Fritzsche said that Johnston had no standing to file his claim against Maine Energy.
In the motion for reconsideration, Cote stated that Justice Fritzsche misinterpreted case law.
Cote disputes Fritzsche’s statement that under Maine statute, odor nuisances are considered a public nuisance which must be prosecuted by government officials. Fritzsche stated Johnston had no statutory basis to establish liability, which could permit the award of damages and a court order preventing Maine Energy from emitting odor.
Cote disagrees. He stated, the Maine Law Court’s position is that the statute permits private actions for a list of nuisances, including odor.
In addition, Fritzsche mentions the case Cyr v. Ruotolo as the legal basis for his decision, stated Cote.
That decision, noted Cote, doesn’t directly relate to Johnston’s case because it didn’t consider the issue of private nuisance. In addition, the court allowed the plaintiff in that decision to add a count for private nuisance.
“It’s very clear in the (Ruotolo case) they never really ruled on the issue about odor,” said Johnston.
Although it’s very rare for a judge to reverse his decision, Cote said, “Most local judges are very good. If they made a mistake, they’d fix it.”
If Fritzsche reverses his position, the next step would be mediation, said Cote. If he doesn’t, Cote said, his client intends to appeal the case to the Maine Supreme Court.
— Staff Writer Dina Mendros can be contacted at 282-1535, Ext. 324 or dmendros@gwi.net.
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