Tourangeau v. Maine Board of Environment

• Court: Superior Court of Maine
• Decided: December 2, 2013
• Docket: CUMap-13-27
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET AP-13-27 . /. ). 01\\AJ-DA~n- Ja;~/ao L3 DAVID M. TOURANGEAU and MARJORIE J. GETZ

Petitioners

v. ORDER ON SOC APPEAL

JANIS and PAUL WALSH and MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents

RECEIVED The Department of Environmental Protection issued respondents Janis and Paul

Walsh a permit to construct a pier on their property. Petitioners appealed the decision to

the Board of Environmental Protection, which dismissed their appeal as untimely. In this

appeal, petitioners challenge the Board's decision dismissing their appeal as untimely.

Factual and Procedural Background

On October 12, 2012, Respondents Paul and Janis Walsh applied for a Natural

Resources Protection Act ("NRP A") permit to construct a pier with an access staircase on

their property. (R. Tab 1.) At the time the Walshes applied for their permit, they owned

two separate but abutting lots: one lot was the site of the pier and the second was an

adjoining lot. (R. Tab 11.) The Walshes provided abutter notice to themselves as owners

of the adjoining lot and several other adjoining lot owners. (R. Tab 1.) The petitioners did

not receive notice of the permit application. (___ (---

On January 29, 2013, the Commissioner ofthe Department of Environmental

Protection ("DEP") granted the Walshes an NRP A permit for the pier. (R. Tab 8.)

Petitioners appealed the decision on March 14, 2013. (R Tab 9.) The Board of

Environmental Protection dismissed the appeal as untimely on May 2, 2013. (R. Tab 28.)

Petitioners argue that they are entitled to a "good cause" exception to the appeal deadline.

Discussion

1. Standard of Review

A reviewing court will not "vacate an agency's decision unless it: violates the

Constitution or statutes; exceeds the agency's authority; is procedurally unlawful; is

arbitrary or capricious; constitutes an abuse of discretion; is affected by bias or an error

of law; or is unsupported by the evidence in the record." Kroeger v. Dep 't of Envtl. Prot.,

2005 ME 50,~ 7, 870 A.2d 566. "An agency's interpretation of its own rules will be

given considerable deference and will not be set aside unless the rule plainly compels a

contrary result, or the rule interpretation is contrary to the governing statute." Friends of

Boundary Mountains v. Land Use Regulation Comm 'n, 2012 ME 53,~ 6, 40 A.3d 947.

2. Timeliness of Appeal

The appeal period for a licensing decision is 30 days under the DEP's rules. 06-

096 CMR ch. 2, § 24(A). Petitioners filed more than 30 days after the Commissioner's

decision to issue the Walshes the permit. The Board therefore correctly determined that

the petitioners' appeal was untimely.

Petitioners contend that they were required to receive notice of the permit

application under DEP rules. The rules require that an applicant provide notice of an

application to all "abutters." 06-096 CMR ch. 2, § 14(A). Abutter is defined as someone

2 l ~··

who "owns property that is both (1) adjoining and (2) within 1 mile ofthe delineated

project boundary, including owners of property directly across a public or private right of

way." 06-096 CMR ch. 2, § 1(A). The Board found that the petitioners were not entitled

to notice because they were not abutters as defined by the rules. (R. Tab 28.) The record

shows that the Walshes owned a lot between the site lot and the petitioners' lot. (R. Tab

11.) The petitioners' property was therefore not an adjoining lot as defined by DEP

regulations.

3. Good Cause Exception

Petitioners acknowledge that their appeal was not timely filed, but they

nevertheless urge the Court to find they are entitled to the good cause exception to the

appeal deadline. In Viles v. Town of Embden, the Law Court identified the relevant

factors for finding the good cause exception:

Therefore, when a court examines whether the good cause exception is applicable to a situation, it starts with determining whether the appellant received notice of the issuance of the permit. Given the rationale in Keating, lack of notice is a key factor, but it is not a determinative factor. Another factor is the amount of time the appellant waited to file the appeal after obtaining actual knowledge of the permit. Still other factors that may be appropriate involve whether the municipality violated its own ordinance and whether the permit holder violated the terms of the permit.

Viles v. Town of Embden, 2006 ME 107, ,-r 13, 905 A.2d 298. As for the notice

requirement, the Court found that "the good cause exception was designed because the

lack of a notice requirement may mean that an abutting landowner does not learn of a

permit until the time period for appeal has expired." !d. at ,-r 12. Here, the petitioners are

not abutting landowners as discussed above. Furthermore, there is nothing in the record

that shows DEP violated their own rules or the Walshes violated the terms of their permit.

The good cause exception does not allow any aggrieved party that did not receive notice

3 of a permit application to challenge the decision to issue the permit at any time. The

petitioners are not entitled to the good cause exception on these facts.

Therefore, the entry is:

Petitioners' appeal is DISMISSED. The Board of Environmental Protection's decision dismissing the petitioners' appeal is AFFIRMED.

Dated: December 2, 2012 1 e A. Wheeler Justice, Superior Court

Plaintiffs-Pro Se Walshes-Mary Costigan Esq ME DEP-Margaret Bensinger AAG