Pierce v. Caron

• Court: Superior Court of Maine
• Decided: January 2, 2018
• Docket: YORap-17-0011
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT YORK, ss. Civil Action DOCKET NO. AP-17-0011

LEONARD A. PIERCE,

and

PATRICK N. CARON, TRUSTEES 10 BEACH PLUM LANE and 12 BEACH PLUM LANE REALTY TRUSTS

Plaintiffs,

V. ORDER

TOWN OF OGUNQUIT,

Defendant.

This case arises from an application for a permit to install a shared dock to be located at 12

Beach Plum Lane in Ogunquit, Maine. Plaintiffs are Leonard Pierce and Patrick Caron, trustees

for 10 Beach Plum Lane and 12 Beach Plum Lane Realty Trusts (the "Trustees").

Plaintiffs filed an application for site plan approval titled "Site Plan Review for a Proposed

Walkway and Pier with a Seasonal Ramp and Float" (the "Application") with the Ogunquit

Planning Board (the "Board") on October 7, 2016. (R. 25-62.) Plaintiffs hired Eco-Analysts, Inc.

to investigate the site and surrounding area to determine the feasibility of the proposed structure

and to prepare and submit the Application. (R. 25, 33.)

The application proposed a "walkway and a pier with a seasonal ramp and float." (R. 25.)

The walkway would measure four feet wide by one hundred and ninety feet long and would

connect to a five-foot-wide by thirty-foot-long pier. (R. 25.) The pier would use long-span

1 construction and helical anchors 1 to minimize direct impacts, resulting in four and a half square

feet of direct impact, four feet of which would be below the Highest Annual Tide mark. (R. 33 .)

The walkway's use oflong-span construction and helical anchors would also result in an additional

one and a half square feet of direct impacts on the coastal wetland. (R. 34.) To additionally

minimize the adverse effects on the marsh, both the walkway and pier would be elevated with a

minimum 1: 1 height/width ratio. (R. 34.) The pier's height starts at five feet and rises to eight and

a half feet. (R. 62c, 444.) The walkway's height starts at four feet and increases to five feet at its

end. (R. 62c, 444.) The application stated, "The proposed structures are the minimum, necessary

length to span intertidal vegetation and obtain navigable waters on a partial-tide basis." (R. 36.)

f,..lthough the project would be shared by both properties, the project would lie entirely within the

setbacks of 12 Beach Plum Lane. (R. 62b.)

Under the Town of Ogunquit's Zoning Ordinance (the "Ordinance"), the application was

subject to in an person site plan review by the Board. (R. 13.) In its extensive review of plaintiffs'

application, the Board held public hearings on November 14, 2016, January 23, 2017, February

27, 2017, March 13, 2017, March 27, 2017, and April 10, 2017. (R. 451,470,477,508,527, 558.)

On March 13, 2017, the Board performed a sitewalk at the proposed site of the dock. (R. 500.)

During the course of its review, the Board received significant testimony from a variety of

sources, both public and private. Given the breadth ofthe record, only a brief recap of the evidence

relevant to this court's review of the Board's final decision will be undertaken. First, upon request

from Eco-Analysts, the Maine Department oflnland Fisheries and Wildlife ("MDIFW") reviewed

the proposal for the potential effect of the project as it is within a designated Essential Habitat for

least terns and piping plovers, both of which are protected under the Maine Endangered Species

1 These anchors are designed to minimally impact the construction area by only being installed with small, hand-held equipment and leaving only 0.25 square feet of impact to the soil once installed. (R. 183, 187.)

2 Act ("MESA"). (R. 59.) The MDIFW wrote that the project's construction could disrupt normal

feeding and/or breeding behaviors of these species which would be an adverse action the

Department considers a "Take." (R. 59.) However, the MDIFW stated that the project could avoid

such a Take if it was constructed between September 16 and April 14, outside the breeding season

for these birds. (R. 59.) The MDIFW, however, did note that this precaution "does not exempt, nor

does it allow, any actions from applicant's activities, including during construction or other future

activities that could be considered a Take of these species." (R. 59.) Additionally, the Trustees

would still, upon obtaining a permit from the Board, need to submit a "Request for Project

Evaluation" to the MDIFW for final approval. (R. 59.)

The Board also received comments on the Application from various Town officials and

entities. The Ogunquit Conservation Commission found that "building a walkway across the tidal

marsh and a pier in the tidal river cannot be beneficial to the environment." (R. 63.) The

Commission thus concluded that it could not approve the project. (R. 63.) The Commission also

specifically found that "[t]his project represents a permanent loss of at least 150 square feet of

Ogunquit's salt water marsh," and "will alter and probably seriously endanger 1,188 square feet

of salt marsh due to shading." (R. 196.) Additionally, the Commission noted that nesting plovers

had been arriving earlier, at the end of March, the last two years, and suggested that the window

for building the project would have to be shortened to the second or third week in March. (R. 197.)

The Harbor Master and Shellfish Warden expressed concern that the project would

interfere with clam harvesting and other public rights such as navigation, fishing, and fowling. (R.

64, 70.) Both the Chief of Police and the Public Works director stated that they had no concerns

with the project. (R. 65, 69.)

3 Following a site visit and review of the Application the Maine Department of

Environmental Protection ("DEP") found that plaintiffs "avoided and minimized coastal wetlands

impacts to the greatest extent practicable, and that the proposed project represents the least

environmentally damaging alternative that meets the overall purpose of the project." (R. 182.)

Additionally, the DEP concluded that "The proposed activity will not unreasonably harm any

significant wildlife habitat, freshwater wetland plant habitat, threatened or endangered plant

habitat, aquatic or adjacent upland habitat, travel corridor, freshwater, estuarine, or marine

fisheries or other aquatic life." (R. 183.)

At the March 13 meeting ofthe Board, Bill Lee ofthe Ogunquit Conservation Commission

testified about the project. (R. 510.) Mr. Lee stated that the project would cause "habitat

fragmentation" and introduced three publications that outline the possible effects of this

fragmentation. (R. 511-512.)

Additionally, the Board discussed what the proper "area" should be in order to apply

Section 9.15(C)(4) of the Ordinance. In an email, Assistant Shoreland Zoning Coordinator for the

DEP Michael Morse explained the Department's interpretation of the word "area" as follows:

The word "area" is intended to be applied broadly and not to be limited to merely the directly abutting properties. If applying it as intended by the Department, the town would consider the general area of the shoreline, say within a reasonable eyeshot of the subject parcel. Or, within at least a quarter or half mile (if you want a randomly determined distance - certainly not limited to direct abutters though). The Department does not establish a set distance, but I'm sure you see the point of our comments.

The standards do not differentiate between publicly and privately owned structures. Both types of structures should be considered by the town. Based on the description you provide here and provided on the telephone, plus considering my knowledge of the highly developed shoreline of Ogunquit, in general terms at least it seems perfectly reasonable to assume that the proposed dock will meet the standard.

(R. 303.) The Town's attorney also wrote an opinion letter to the Board concerning the definition

of area. (R. 399.) In the letter, she states, "The correct interpretation of the word 'area' does not

appear to be in dispute. Attorney Guay and I are in agreement with Mike Morse's opinion that this

4 term means that the Board must look up and down the river and not distinguish between public

and private docks that are in existence." (R. 399.)

The plaintiffs also drew the Board's attention to a previous permit application for the

construction of a similar dock that was approved in 2011. (R. 249-302.) This project also entailed

constructing a portion of the dock over marsh grass. (R. 277.)

In conjunction with the instant application, the plaintiffs applied for and were granted

construction permits by the Department of Environmental Protection ("DEP") pursuant to the

Natural Resources Protection Act (38 M.R.S.A. § 480-C) and the Army Corps of Engineers. (R.

125, 138.) In its permit, the DEP stated analyzed whether the project's impact would be

"unreasonable," meaning whether it would "cause a loss in wetland area, functions and values and

there is a practicable alternative to the project that would be less damaging to the environment."

(R. 129.) The DEP determined, "the applicant has minimized coastal wetland impact to the greatest

extent practicable, and that the proposed project represents the lest environmentally damaging

alternative that meets the overall purpose of the project." (R. 130.)

On April 10, 2017, the Board denied the application and adopted findings of fact and

conclusions to support its decision. (R. 438, 444-450.) The Board concluded that the dock would

violate the Ordinance because "it will not be consistent with existing conditions, use and character

ofthe area that would be affected by the proposed structure." (R. 449.) This conclusion was based

on the following findings: (1) the area that will be affected is the salt marsh between the existing

public foot bridge and the stream located next to plaintiffs' properties, not the "reasonable eyeshot"

area proposed by the plaintiffs; (2) the area as defined is the only significant marsh grass area that

is outside ofthe Rachel Carson Preserve, is a foraging ground for the Least Tern and Piping Plover,

and has no other bridges, piers, or wharves; and (3) the public footbridge, which was built before

5 the passing of the shoreland zoning provisions, is not a compar8;ble structure because it crosses

from a parking lot to the dunes and does not cross the marsh. (R. 449.)

The Board based these findings on the testimony provided at the public hearings as well as

its own observations at the sitewalk, but specifically noted three studies introduced by Bill Lee to

support its findings. (R. 449.) The first of these studies is Effects ofLong Piers on Birds in Tidal

Wetlands by Allison E. Banning, Jacob L. Bowmand, and Bruce Vasilas, which concluded that

long piers have an adverse effect on avian communities in tidal marshes. (R. 449.) Next, the Board

cited Impacts ofDocks and Piers on Salt Marsh Vegetation in MA Estuaries, published by the

Massachusetts Executive Office of Energy and Environmental Affairs, which concluded that

although docks with a 1: 1 height to width ratio help with shading impacts on salt marsh vegetation

and that docks with heights of five feet or greater provide the least impact, these docks "still impact

salt marsh vegetation growth, with a lower stem density compared to unshaded marsh" and "even

docks designed to promote light penetration will result in salt marsh loss." (R. 449.) Third, the

Board looked to Final Report-Environmental Impacts of Docks and Piers on Salt Marsh

Vegetation Across Massachusetts Estuaries by John Logan, Amanda Davis, and Kathryn Ford of

the Massachusetts Division of Marine Fisheries. (R. 450.) The Board cited that this study found

that "some docks that were more than 5 feet in height resulted in stem densities that were less than

10% of densities in bordering unshaded areas. Docks of over 5 feet that were reviewed in the study

had a median stem density of only 56% of the unshaded marsh. Even docks designed to promote

light penetration 'will often result in high levels of salt marsh loss."' (R. 450.)

Because of the evidence before it, specifically these studies, the Board concluded:

The Board finds that because the salt marsh in this area is the predominant feature of the River and because it serves as a foraging area for both Least Terns and the endangered Piping Plover, the size of the structures completely bisect the marsh grass and will not be consistent and will conflict with the existing conditions, use and character of the area. Based upon the studies provided, the Board finds that the structures will impact the bird foraging areas and will have a negative impact on

6 existing salt marsh vegetation. The loss of habitat and vegetation due to the size of the proposed structures will conflict with the existing conditions, use and character of the area.

(R. 450.)

In addition to denying the application, the Board also discussed plaintiffs' concern that the

Board was biased from outside research that was not in the record. (R. 436-437.) The plaintiffs

were particularly concerned with emails between Board Member Mark MacLeod, the Board

Chairman, Land Use Office Secretary Maryann Stacy, and others. (R. 305-308.) In the emails,

MacLeod inquired "Can I, as a Board member, legally conduct research in town archives related

to a permit application before us? Or should that be the Land Use Office?" (R. 308.) MacLeod was

specifically interested in looking at prior pier applications and whether or not they had been

approved. (R. 308.) Stacy responded by informing MacLeod, "The appropriate thing to do if you

do any private research is to send it to me as soon as possible so that I can provide copies of it to

the other board members and the applicant well before the meeting" and "The idea is to not surprise

anyone, including the applicant, with additional information at the meeting." (R. 306.) Despite

these emails, plaintiffs contend that MacLeod brought and discussed private research, specifically

a report from the Maine Department oflnland Fisheries and Wildlife to a March 27, 2017 Board

meeting. (PL' s Br. 31.)

STANDARD OF REVIEW

In its intermediate appellate capacity, this court reviews decisions of administrative bodies

for abuse of discretion, errors of law, and findings not supported by substantial evidence. Otis v.

Town ofSebago, 645 A.2d 3, 4 (Me. 1994) (citation omitted). Substantial evidence is defined as

"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Conservation Law Found. v. Town of Lincolnville, 2001 ME 175, ,r 6, 786 A.2d 616 (citations

omitted). Additionally, "the fact that two or more conclusions can be drawn from the evidence

7 does not mean that a Board's finding is unsupported by substantial evidence." Id. (quoting Gorham

v. Cape Elizabeth, 625 A.2d 898, 903 (Me. 1993)).

Interpretations of zoning ordinance provisions are questions of law that courts review de

nova. Priestly v. Town ofHermon, 2003 ME 9, ,r 7, 814 A.2d 995 (citation omitted). In its review,

the court looks at the plain language of the ordinance, and "[t]he terms or expressions in an

ordinance are to be construed reasonably with regard to both the objectives sought to be obtained

and the general structure of the ordinance as a whole." Id. (quoting Geraldv. Town of York, 589

A.2d 1272, 1274 (Me. 1991)). The court also construes the language of the ordinance as "to avoid

absurd, inconsistent, unreasonable or illogical results." Melanson v. Belyea, 1997 ME 150, ,r 4,

698 A.2d 492. Although the court's interpretation of an ordinance is de nova, the court "will accord

substantial deference to the Board's characterizations and fact-findings as to what meets ordinance

standards." Bizier v. Town a/Turner, 2011 ME 116, ,r 8, 32 A.3d 1048 (citations omitted).

DISCUSSION

I. The Constitutionality of Ordinance Section 9.lS(C)(4)

As an initial matter, plaintiffs argue that the Ordinance provision on which the Board based

its decision, 9.15(C)(4), is unconstitutionally vague. (Pl.'s Br. 33.) Section 9.15(C) applies to

"Piers, Docks, Wharves, Bridges, and Other Structures and Uses Extending Over or Beyond the

Normal High Water Line of a Water Body or Within a Wetland." (Ogunquit, Me., Zoning

Ordinance ("Ordinance") § 9.15(C) (November 8, 2016); R. 15.) At issue here, subsection 4

requires, "The facility shall be no larger in dimension than necessary to carry on the activity and

be consistent with existing conditions, use, and character of the area." (Ordinance§ 9.15(C)(4); R.

16.)

8 The Law Court has previously examined the constitutionality of this exact language in

Lentine v. Town ofSt. George, 599 A.2d 76 (Me. 1991). In Lentine, the Law Court noted, "By a

well established principle of statutory construction, any ambiguity in the St. George Ordinance

must be resolved to preserve its constitutionality." Id. at 78-79 (citing State v. Horton:l. 561 A.2d

488, 490 (Me. 1989)). Accordingly, the Court analyzed the section and found that the language

"readily lends itself to an interpretation that avoids any question of unconstitutional vagueness."

Id. at 79.

Specifically, the Law Court held, "[T]he last half of the section imposes merely a second

criterion for judging the allowable size of a proposed wharf. In other words, ... the Lentines'

wharf may not be either (1) 'larger in dimension than necessary to carry on the activity' of deep

water access for the Lentines' pleasure boat, or (2) 'larger in dimension than ... [will] be consistent

with existing conditions, use, and character of the area."' Id. The Law Court construed the word

"consistent" in the second part of the section as meaning "not conflicting or interfering with." Id.

Thus, the second dimensional requirement of the section requires that a proposed pier or wharf

"may not be so large that it conflicts or interferes with existing conditions, use, and character of

the area that would be affected ...." Id.

The Law Court came to this conclusion from looking to the section's context within the

Ordinance to best determine the drafters' intent. Id. Like Section 9.15 (C) of Ogunquit' s Ordinance,

St. George's Ordinance listed four separate requirements that applied specifically to piers,

wharves, and similar facilities pertaining to "control of soil erosion, protection of developed beach

areas, and minimization of adverse effects upon fisheries." Id. (See Ordinance§§ 9.15(C)(l-4); R.

16.) In this context, the Law Court stated, "[T]he consistency requirement cannot reasonably be

read to relate to anything more than the proposed wharfs dimensions." Id. at 80.

9 With this standard, the Law Court found that the language provided "constitutionally

adequate standards to guide the zoning boards in their decisions on applications for wharf permits."

Id. at 79. The Lentine standard was again applied in Stewart v. Town ofSedgwick, 2002 ME 81, ,r

10, 797 A.2d 27.

Given the Law Court's holding and its subsequent application, this court likewise finds that

Section 9.15(C)(4) in conjunction with the Lentine standard provide adequate standards on which

Boards can base their decisions relating to such permit applications.

II. The Application of the 9.lS(C)(4) Standard

In this case, the Board used the Lentine standard to conclude "The loss of habitat and

vegetation due to the size of the proposed structures will conflict with the existing condition, use

and character of the area." (R. 450.)

a. The Board's Determination of the Relevant "Area"

Plaintiffs contend that the Board erred by defining the appropriate "area" as the less than

quarter-mile stretch of "salt marsh area between the existing public footbridge and the stream next

to Beach Plum Farm, in a narrow portion of the River." (R. 449.) The Board defined the area as

such because the Board found that this was "the only significant marsh grass area that is outside

of the Rachel Carson Preserve" in Ogunquit and is a foraging ground for the Least Tern and Piping

Plover. (R. 449.) The Board then found that there were no other comparable structures in the area.

This court cannot find that the Board abused its discretion by so limiting the "area" at issue.

It based its determination on the specific characteristics of the surroundings. Although Michael

Morse of the DEP stated that the term "area" should be applied broadly, should not be limited to

abutting properties, and that the general intent is that the Board consider the general area of the

10 shoreline within a "reasonable eyeshot," the specific circumstances here tend to indicate that the

area here is unique from the usual Ogunquit shorefront. Consequently, the Board did not abuse its

discretion by narrowly defining "area" under the Ordinance.

Additionally, it should be noted that a broader definition of "area" has little practical effect

on the Board's underlying decision or this court's review. Even if this court were to find that the

"area" should have been more expansive, the final conclusion of the Board was that the project

would not be consistent with the marshland habitat where it was being constructed because of its

adverse effect on vegetation and wildlife. This conclusion would not change if the "area" were to

expand to encompass more similar structures. In this court's opinion, the determinative issue to

this case is whether the Board properly considered the project's effects on the marsh vegetation

and habitat.

b. Whether the Board Could Consider the Environmental Impact of the Proposed Project

Plaintiffs argue that the Board inappropriately considered the environmental impact of

the project in reaching its conclusion. Specifically, plaintiffs claim that it is the DEP, not the

Board that is tasked with reviewing a proposal's impact on the Town's natural resources, not the

Board. (Pl.'s Br. 39.)

However, the fact that the DEP also approves the project does not remove the Board's

ability to take into account the environmental impact of applications. The Zoning Ordinance

clearly contains provisions that directly relate to proposals' potential environmental impact. (See

Ordinance § 9.15(C)(3) (Project's location must minimize adverse effects on fisheries); R. 16.)

Simply because another governmental entity reviews projects' potential environmental impact

does not preclude the Board from doing the same in accordance with the Town's Ordinance.

11 Further, the Ordinance and the DEP analysis involve different standards. While the DEP

only looked at whether the project was unreasonable, section 9.15(C)(4) requires the project be

consistent with the conditions, use and character of the area.

Thus, the Board did not err by considering the environmental impact of the application in

pursuant to the Town's Ordinance, specifically section 9.15(C)(4).

c. Whether the Proposed Project is Consistent with Existing Conditions, Use and Character of the Area

The Lentine Court held that the correct standard for provisions with the same language as

the second part-of 9.15(C)(4) is that a pier may not be: "(1) 'larger in dimension than necessary to

carry on the activity', or (2) 'larger in dimension than ... [will] be consistent with existing

conditions, use, and character of the area."' Lentine, 599 A.2d at 79. In the instant case, only the

second requirement is at issue. As noted above, this requirement "cannot reasonably be read to

relate to anything more than the proposed [project's] dimensions." Id. at 80.

Prior decisions applying this standard are few and far between. In Lentine, the wharf in

question was proposed as:

[A] permanent, pile-supported timber structure, 6 feet wide and 190 feet long, with a 32-foot-long ramp and a 20-by-l 6-foot floating dock attached to the wharf on a seasonal basis. With the proposed ramp and floating dock, the entire structure would extend a total of about 236 feet. The purpose of the wharf was to provide a deep-water dock for the Lentines' pleasure boat.

Id. at 77. Several neighbors opposed the wharf, citing the wharf's length and the negative impact

it would have on the activity in the cove. Id. One neighbor noted that his lobster boat was bigger

than the Lentines' pleasure craft but could be tied at his nearby 70-foot wharf for longer than the

Lentine's could tie their boat at their extended wharf. Id. Another neighbor opposed the proposed

wharf "on the ground that it would interfere with the flow of ice and thereby threaten his nearby

lobster pound; it was estimated that such an ice 'pile-up could happen once in four years and cost

thousands of dollars."' Id. at 77. A third neighbor contended that if the proposed wharf was

12 "swung slightly to the northeast its length could be reduced by 50 to 140 feet," however doing so

may have encroached on others' tidal rights. Id.

The Board agreed, finding that because of this risk, the proposal would not be consistent

with the conditions, use, and character of the area. Id. On appeal, and after further explaining this

standard, the Law Court found that the record did not compel a contrary finding because "[t]he

Board had before it evidence that a wharf of the proposed size would interfere with the existing

'conditions, use, and character' of the cove by, for example, creating a danger of ice 'pile-up' that

would threaten neighbors' property and businesses." Id. at 80.

In Stewart v. Town of Sedgwick, 2002 ME 81, 797 A.2d 27, the plaintiff argued that a

proposed dock was inconsistent with the area, outlining "the pristine nature of the area," and

introducing "photographs showing the beauty of Eggemoggin Reach." Id. ,r 9. In response, the

applicant noted and provided photographs of "a number of other docks within two miles" of the

property. Id. The Board found that the proposed dock was consistent with the conditions, use, and

character of the area and the Law Court again concluded that this fmding was supported by

substantial record evidence. Id.

In First Step Land Dev. v. Town ofKittery, 2006 Me. Super. LEXIS 143 (July 5, 2006), the

Superior Court (York County, Fritzsche, J.) overturned the decision of a planning board that found

that a proposed pier for subdivision owners on Spruce Creek in Kittery was not consistent with the

existing conditions, use and character of the area. Id. at *4. The board so found because the town

had not previously approved piers that could be used by non-waterfront owners. Id. at *2. The

court, however, disagreed, finding that the project was "consistent with the existing conditions,

use and character of the area in that it is a pier situated among others on Spruce Creek." Id. at *4.

The court explained, "The Planning Board is not correct when it found that a pier must be limited

13 to a size only large enough to accommodate just shorefront property owners. That may be a custom

or a tradition but is not consistent with the existing conditions, use and character of the area. At

some point a pier could become so large that it would violate restriction (d) but that is not so in

this case." Id. at *4-5.

These decisions indicate that the disputed language not only applies to size consistency

with other similar present or past structures in the area (Stewart and First Step), but also to the

possible effect that a project may have on the area itself (Lentine).

In the instant case, the Board concluded, "The loss ofhabitat and vegetation due to the size

of the proposed structures will conflict with the existing conditions, use and character of the area."

(R. 450.) This decision is in line with the Lentine case, which held that a wharf would be

inconsistent with the existing conditions, use, and character of the area if it posed a threat to a

nearby wharf due to the possibility of ice build-up.

Plaintiffs contend that the pier must be "larger in dimension than necessary" to be

consistent with the conditions, use, and character of the area as is the case with the first provision

of section 9.15(C)(4). 2 (PL 's Br. 42.) However, the Lentine decision makes clear that this language

does not apply to the second portion of the section. The proper test is whether a project is "larger

in dimension than ... [will] be consistent with existing conditions, use, and character ofthe area,"'

or in other words, "the proposed wharf [or pier] may not be so large that it conflicts or interferes

with existing conditions, use, and character of the area that would be affected by the wharf [or

pier]." Lentine, 599 A.2d at 79; see also Stewart, 2002 ME 81, ,r 10, 797 A.2d 27 (Noting that the

Lentine court interpreted the language to mean a project's "size could not.be larger than necessary

2 As noted above, the first part of the test is whether the project is "larger in dimension than necessary to carry on the activity." Lentine, 599 A.2d at 79.

14 for its purpose and its size had to be consistent with the conditions, use, and character ofthe area.").

Consequently, the Board did not misapply the standard by failing to use the "than necessary"

qualification while ruling on the consistency requirement of section 9.15(C)(4).

This court cannot conclude that the Board's finding that the project would not be consistent

with the conditions, use, and character ofthe affected area is not supported by substantial evidence.

It based its decision on multiple reports and the opinions of town officials such as the Ogunquit

Conservation Commission. Although there is significant evidence on the record that the plaintiffs

did what they could to minimize the environmental impact of the project, the record does not

compel a contrary finding. Given this court's deference to the Board's "characterizations and fact­

findings as to what meets ordinance standards," the Board's finding that the project violates section

9.15(C)(4) is not in error. Bizier, 2011 ME 116, ~ 8, 32 A.3d 1048 (citations omitted).

III. Due Process Claims

Plaintiffs' final argument is that the emails from Board Member MacLeod demonstrate that

the Board's decision was "biased by ex parte research and conversations." (Pl.'s Br. 48.) "An

administrative process may be infirm if it creates an intolerable risk of bias or unfair advantage."

Zegel v. Bd. of Soc. Worker Licensure, 2004 ME 31, ~ 16, 843 A.2d 18. Generally, "[e]x parte

communications implicate the due process rights of the excluded party and will be grounds to

vacate a 'decision if, as a result of [the] communications, the decision results in 'procedural

unfairness," which calls into question the integrity and fairness of the decision." Wolfram v. Town

ofN Haven, 2017 ME 114, ~ 20, 163 A.3d 835 (quoting Duffy v. Town ofBerwick, 2013 ME 105,

~ 18, 82 A.3d 148). However, if a procedural error is harmless, it "will not be grounds to vacate a

decision unless [it is] inconsistent with substantial justice and result[s] in prejudice." Id. (citation

omitted).

15 The Maine Administrative Procedure Act provides, "All material, including records,

reports and documents in the possession ofthe agency, ofwhich it desires to avail itself as evidence

in making a decision, shall be offered and made a part of the record and no other factual

information or evidence shall be considered in rendering a decision." 5 M.R.S.A. § 9059(4).

Plaintiffs argue that Board Member Mark MacLeod used outside research to affect the

Board's decision. Plaintiffs point to emails between MacLeod, the Board Chairman, and Land Use

Office Secretary where MacLeod inquires whether he could do his own research. Plaintiffs also

point to the March 27 meeting of the Board where MacLeod brought the Board's attention to an

article that he had looked up on his own titled Maine Issues and Profile Docks Piers and Shore land

Feeding and Roosting Areas. (R. 535.) The Town argues that the same information in this article

is found in the others cited by the Board in its decision. (Def.'s Br. 17.) Plaintiffs, however, claim

that these other publications did not concern Maine specific research that is more applicable to the

instant application. (Pl.'s Repl. 12.)

Even if the report was not properly introduced as evidence, there is not sufficient evidence

to find that the report was used in any way in the Board's final decision. The Board outlined its

bases for its conclusion that the project would adversely impact the marsh vegetation and bird

foraging areas without reference to this report. There is no evidence that this report was mentioned

again after the March 27 meeting. Plaintiffs have not shown any prejudice arising from the brief

discussion ofthis report. Consequently, this court finds that any procedural error was harmless and

not a violation of due process.

16 CONCLUSION AND ORDER

For the foregoing reasons, the Board did not commit any error oflaw, abuse of discretion,

or erroneous finding of fact in its decision. Further, there was no due process violation from Board

member MacLeod's discussion of the report that was not properly in the record. The Board's

decision is hereby affirmed.

The clerk shall make the following entries on the docket:

The decision of the Ogunquit Planning Board is AFFIRMED.

SO ORDERED.

DATE: JANUARYCX. , 2018

John O'Neil, Jr. Justice, Superior Court ENTERED ON THE DOCKET ON:

17 ALFSC-AP-17-11

ATTORNEY FOR PLAINTIFFS:

SANDRA L. GUAY, ESQ. WOODMAN EDMANDS DANYLIK PO BOX468 BIDDEFORD ME 04005

ATTORNEY FOR DEFENDANT:

NATALIE L. BURNS, ESQ. JENSEN BAIRD GARNDER HENRY PO BOX 4510 PORTLAND ME 04112-4510