Najemy v. Bd. of Envtl. Protection

• Court: Superior Court of Maine
• Decided: October 12, 2007
• Docket: CUMap-07-015
• Status: Unpublished

Opinion

STATE OF MAINE CUMBERLAND, ss. i<~ SUPERIORCOURT , CIVIL ACTION /

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and

RICHARD N. BRYANT

Petitioners, 80CAPPEAL v.

BOARD OF ENVIRONMENTAL PROTECTION Defendant

SPURWINK WOODS, LLC

Party in Interest,

LYNDON KECK and HOLLY HOFFMAN Parties in Interest.

This case comes before the Court on Petitioners Jeanne M. N ajemy and

Richard N. Bryant's appeal of a governmental action pursuant to M.R. Civ. P.

80C.

BACKGROUND Petitioners Jeanne M. Najemy and Richard N. Bryant (collectively

"Petitioners") appeal a final agency order (the "Order") issued by the Board of l Environmental Protection ("BEp ) approving a 42 unit single-family and

condominium subdivision in Cape Elizabeth, Maine (the "Town") formerly

referred to as Spurwink Woods and now renamed Cottage Brook (the "Project").

1 Spurwink Woods, LLC (''Developer''), Lyndon Keck and Holly Hofmann are

Parties in Interest.

Petitioners reside in the immediate vicinity of the Project and opposed the

Project during subdivision review before the BEP, the Department of

Environmental Protection ("DEP") and the Cape Elizabeth Planning Board (the

"Planning Board").

The Order, issued on February I, 2007, approved the Project under the

Stonnwater Management Law and Natural Resources Protection Act. However,

the BEP detennined that the Project did not require review under the Site

Location of Development Law, 38 M.R.S.A. §§ 481- 490 ("Site Location Law").

Site Location Law regulates development that "may substantially affect the

environment." 38 M.R.S. § 482(2) (2007). Because the BEP made this

determination, the Project was not subject to recently developed stonnwater

quality standards that Petitioners contend would force design changes to the

Project, thereby providing additional protection to the surrounding Trout Brook

watershed and additionally to Petitioners' interest in their home.

The BEP detennined that the Project was not a "regUlated development"

pursuant to 38 M.R.S.A. § 482(2) and thus was not subject to Site Location Law.

This determination was based on findings that "the Project neither (i) involves

three acres or more of 'structure' as defined in § 482(6)(B), nor (ii) constitutes a

'subdivision' of more than twenty acres as defined in § 482(5). Petitioners

contend that "these conclusions resulted from erroneous interpretations of the

statute, or were the result of an arbitrary and capricious abuse of discretion and

unsupported by competent evidence." Petitioners further contend that they

were denied meaningful process to contest BEP's approval of the Project.

2 DISCUSSION

I. Standard of Review

The Court may only reverse or modify an administrative agency's

decision if it is based upon "bias or error of law/' is "unsupported by substantial

evidence on the whole record/' is "arbitrary and capricious," or involves an

"abuse of discretion" by the agency. 5 M.R.S.A. § 11007(4)(C)(4)-(6). According

to the Law Court, the power to review decisions of the Commission is confined

to an examination of "whether the Commission correctly applied the law and

whether its fact findings are supported by any competent evidence." McPherson

Timberlands, Inc. v. Unemployment Ins. Comm'n, 1998 ME 177,

820.

Additionally, the Court cannot "substitute its judgment for that of the

agency on questions of fact." 5 M.R.S.A. § 11007(3). "[U]nless the record before

the Commission compels a contrary result," the Court will uphold the agency

decision. McPherson, 1998 ME 177,

clearly rests with the party seeking to overturn the decision of an administrative

agency." Seven Islands Land Co. v. Me. Land Use Regulation Comm'n, 450 A.2d 475,

479 (Me. 1982).

With respect to statutory interpretation, great deference is afforded to an

agency's interpretation of a statute it is charged to enforce. Murphy v. Bd. of Env.

Prot., 615 A.2d 255,259 (Me. 1992) (citing Bar Harbor Banking & Trust Co. v. Bureau

of Consumer Prot., 471 A.2d 292, 296 (Me. 1984)). "Although an administrative

interpretation is never conclusive on the court, itshould not be lightly

disregarded unless the statute plainly compels a contrary result." Id. (citations

omitted). "When there is ambiguity, however, we defer to the interpretation of a

3 statutory scheme by the agency charged with its implementation as long as the

agency's construction is reasonable. Conservation Law Found., Inc., v. Dept. of Env.

Prot., 2003 ME 62, <]I 23, 823 A.3d 551, 559. Moreover, the meaning of a statute

must be interpreted in light of the purpose for the legislation. Murphy, 615 A.2d

at 259.

II. Did the BEP Improperly Find the Project Was Not Within the

Iurisdiction of Site Location Law?

Petitioners contend that the BEP erroneously found that the Project

contained less than the three acres of structure and that it was not a subdivision

as defined by Site Location Law.

a. Did the BEP Erroneously Find that The Project Contains Less

Than Three Acres of Structure as Defined in § 482(6)(B)?

Under Maine law, if any development contains more than three acres of

structure, as defined by 38 M.R.S.A. § 482(6), it falls within the purview of Site

Location Law. 38 M.R.S.A. § 482(6). Structure is defined as:

Buildings, parking lots, roads, paved areas, wharves or areas to be stripped or graded and not to be revegetated that cause a total project to occupy a ground area in excess of 3 acres. Stripped or graded areas that are not revegetated within a calendar year are included in calculating the 3-acre threshold.

Id. Petitioners claim that the DEP failed to consider structures during

preliminary hearings nor were structures fully considered on BEP appeal.

Further, BEP calculations of structure for the Project were inaccurate because

they failed to include "substantial permanent improvements shown on the

October 2006 plan." Specifically, the BEP failed to consider 1) the trail system as

structure; 2) a portion of South Street; 3) a sidewalk to be constructed along

South Street; and 4) a retaining wall to be constructed at the northerly end of

4 South Street (collectively the "omitted structures"). Had the omitted structures

been considered, it is asserted, the Project would fall within the purview of Site

Location Law.

1. Did the DEP and the BEP Fail to Consider Relevant

Structures?

Petitioners assert that the omitted structures were repeatedly pointed out

at the BEP appellate hearing on February 1, 2007 based on Developer's post­

appeal submissions, but that the BEP failed to address the concerns. Further,

they assert, prior to the appeal, specific structure calculations were not

considered by the DEP, which omissions amount to arbitrary and capricious

calculations, unsupported by the evidence in the record.

In response the BEP points to DEP findings of fact finding 2.80 acres of

structure at the Project. These findings were supported by a report requested

from Developer and prepared by Developer's consultant, John D. Mitchell, and

by DEP employee notations on some of the plans. That estimate was revised to

2.96 acres in a September 1, 2006 letter from Mitchell reflecting the BEP's

willingness to revisit the calculations. Accordingly, Site Location Law was

considered before the DEP and the BEP.

11. Were the BEP's Findings of Fact Sufficient to Apprise

Interested Parties of the Basis for Their Decision?

"Under the Administrative Procedure Act, all agency decisions made at

the conclusion of an adjudicatory proceeding must 'include findings of fact

sufficient to apprise the parties of any interested member of the public of the

basis for the decision." Murphy, 615 A.2d at 260 (quoting 5 M.R.S.A. § 9061

5 (1989». This does not, however, "require an agency to make a detailed incident-

by incident fact finding." Jd.

In this case the BEP, in the February 2007 Order, did address in detail, the

basis for their decision to find less than 3 acres of structure. Consequently, the

BEP met its burden of providing sufficient findings to apprise Petitioners of the

basis of their decision.

iii. Did the DEP and BEP Erroneously Exclude Certain

Structures in Their Calculations?

Petitioners listed omitted structures that they contend bring the Project

well within the scope of Site Location Law. The BEP contends, however, that

Petitioners have failed to read the law in context regarding subdivisions and

structures and thus have misinterpreted the requirements under Site Location

Law. Specifically, that single-family residential subdivisions are excluded from

structure calculations. See 38 M.R.S. § 488(17) (2007).1 Consequently, when

considering a subdivision with both single and multi-family units, the DEP

"carefully calculates" those structure areas not associated with the single-family

units and determines if the 3-acre structure threshold has been met.

Petitioners take issue with the DEP and BEPs categorization of omitted

structures as associated with single-family units, or otherwise exempt from

calculation. However, the BEP specifically addresses each contested structure

and articulates the basis for their decision with support from the record.

1 17. Structure area within residential lots. Buildings, roads, paved areas or areas to be stripped or graded and not revegetated that are located within lots used solely for single-family residential housing are not counted toward the 3-acre threshold described in section 482, subsection 6, paragraph B for purposes of determining jurisdiction. A road associated only with such lots is also not counted toward the 3 -acre threshold. For purposes of this subsection, "single-family residential hOUSing" does not include multi­ unit housing such as condominiums and apartment buildings.

6 Accordingly, BEP/s calculations are neither arbitrary nor capricious and

are based on a reasonable interpretation of the statute.

b. Did the BEP Erroneously Find that The Project Does Not

Constitute a 'Subdivision' of More Than Twenty Acres as

Defined in § 482(5)?

The land upon which the Project is situated has consistently been referred

to as a 24.97-acre parcel. A significant subdivision is defined as:

A "subdivision" is the division of a parcel of land into 5 or more lots to be offered for sale or lease to the general public during any 5­ year period, if the aggregate land area includes more than 20 acres; except that when all lots are for single-family, detached, residential housing, common areas or open space a "subdivision" is the division of a parcel of land into 15 or more lots to be offered for sale or lease to the general public within any 5-year period, if the aggregate land area includes more than 30 acres. The aggregate land area includes lots to be offered together with the roads, common areas, easement areas and all portions of the parcel of land in which rights or interests, whether express or implied, are to be offered.

38 M.R.S. § 482(5) (emphasis added). Exceptions to the definition exist.

Specifically not calculated into the aggregate acres are any "[p]ersonal, nonprofit

transactions, such as the transfer of lots by gift. ..."

In this case Developer has "gifted" 12.58 acres to the Town and thus/

according to the BEP, the aggregate acreage is less than 20 acres. Petitioner

counters that the 12.58 acres cannot be construed as a "gift" because Developer

commercially gains from the conveyance by avoiding certain fees and by

circumventing Site Location Law. Furthermore, they assert that residents will

have rights or interests in the "gifted" lot and thus it should be included in the

calculations.

7 According to the BEP, a general20-acre threshold for subdivisions is an

inaccurate reading of the law because the § 402(5) definition of subdivision has

many interrelated factors. Moreover, though residents will have access to the

"gifted" acreage, they have not been offered "rights" in it; meaning that they will

have no more say over the management of the 12.58 acres than the public at

large. Thus it should be excluded from the calculation.

This reading of the law is based in public policy. The BEP has

determined, and has consistently read the law, to encourage developers' gifts of

land to towns. The BEP is harmonizing town ordinances that incentivize such

gifts in lieu of fees and restrictions with DEP laws, thus promoting efficient land­

use and open space. This interpretation, they assert, serves the real purpose of

the legislation. 2 See Murphy, 615 A.2d at 259.

This Court must show great deference to the determinations made by the

BEP both as a matter of fact and as a matter of statutory interpretation. The

Court thus determines that this reading of the law is not unreasonable.

III. Were Petitioners Denied Sufficient Process to Fairly Contest the

Order?

Ultimately the Petitioners contend that the BEP failed to meaningfully

address Petitioners' concerns because it did not remand Site Location Law issues

2 38 M.R.S.A. § 481 reads in pertinent part:

The purpose of this SUbchapter is to provide a flexible and practical means by which the State, acting through the department, in consultation with appropriate state agencies, may exercise the police power of the State to control the location of those developments substantially affecting local environment in order to insure that such developments will be located in a manner which will have a minimal adverse impact on the natural environment with the development sites and of their surroundings and protect the health, safety and general welfare of the people.

8 to the DEP for further fact finding, but allowed the issue to be improperly

considered on appeal, where Petitioners' bore the burden of proof.

The BEP stands by their fact-finding process and their conclusions.

Petitioners were present and heard throughout the licensing process. Developer

did bear his burden as evidenced by the Mitchell letter. Indeed the BEP asserts

that they liberally allowed Petitioners to submit further evidence on appeal.

Though the DEP record is sparse surrounding Site Location Law there

was some evidence in the record to support DEP conclusions. Because this

Court cannot "substitute its judgment for that of the agency on questions of fact,"

5 M.R.S.A. § 11007(3), and because the record does not compel a contrary result,

this Court affirms the agency decision.

The entry is:

The February 1, 2007 Order of the Bureau of approving the Cottage Brook Project is AFFIRMED.

DATE:~//'~~

9 Date Filed 03-07-07 CUMBERLAND Docket No. AP-07-1S County

• Action _ 80C APPEAL

JEANNE M NAJEMY BOARD OF ENVIRONMENTAL PROTECTION RICHARD N BRYANT SPURWINK WOODS LLC (PII) LYNDON KECK (PII) HOLLY HOFFHAN (PU)

vs. Plaintiff's Attorney Defendant's Attorney RICHARD N BRYANT ESQ PAUL F. DRISCOLL, ESQ. 20 YORK STREET SUITE 202 P.O. BOX 4600 (Spurwink) PORTLAND ME 04101 PORTLAND, MAINE 04112-4600 (207) 871-7500 774-7000 MARGARET BENSINGER AAG (BOARD OF ENV. PRO) 6 STATE HOUSE STATION AUGUSTA ME 04333-0006