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Day v. Board of Environmental Protection

Superior Court of Maine, Kennebec

December 22, 2014

JONATHAN R. DAY, Petitioner


Before the court is a M.R. Civ. P. 80C appeal by Petitioner Jonathan Day from a decision of the Maine Board of Environmental Protection ["Board") affirming the Commissioner of the Maine Department of Environmental Protection's ("DEP") approval of party-in-interest Carol Reece's permit application under the Maine Natural Resources Protection Act ("NRPA"). Ms. Reece applied to the DEP for a permit to construct a walkway, lawn and driveway on a frontal dune and an access way on the back dune of her lots on Popham Beach in the town of Phippsburg, Maine. The Board affirmed the DEP's findings and approval of Ms. Reece's project.

Petitioner Day appeals the Board's Decision contending that the Board and DEP erred in finding:

1) Ms. Reece's alleged "driveway" was not a road;
2) Section 5(C) of the Coastal Sand Dune Rules (the "Rules") applies only to "buildings" and, even if it applied to Ms. Reece's project, was satisfied;
3) Ms. Reece's alleged "lawn" was not a "parking area" or a "development;" and
4) Ms. Reece's project would not unreasonably interfere with the existing scenic and aesthetic uses of Popham Beach.

The Court grants Petitioner's appeal regarding the interpretation and application of Section 5(C) of the Rules, denies the remainder of Petitioner's appeal, vacates the Board's Order, and remands the case for entry of an Order denying the application of Ms. Reece for failure to comply with section 5(C) of the Rules.

On March 13, 2013, Carol Reece filed a permit application for development within a frontal and back dune of a coastal sand dune system pursuant to the NRPA. Ms. Reece owns an undeveloped, 10, 000 square foot parcel of land located in the frontal dune. During the DEP's review process, Ms. Reece amended her application and site plan three times from the original submission. Ms. Reece's proposed project does not include any buildings. Instead, the project is designed to enable Ms. Reece to use her land on a seasonal basis during the summer months, including the use of a camper or RV. The project involves removing vegetation and grading in specific areas in order to construct a gravel access way along a 10-foot wide by 450-foot long portion of two proposed unaccepted ways (Gosnold Street and Riverview Avenue). The unaccepted ways are also known as paper streets, and are located in the back dune. The proposed gravel driveway, in the frontal dune, would be approximately 12 feet wide by 15 feet long and would extend over a portion of the paper street known as Riverview Avenue, extending from the access way to Ms. Reece's lot. Ms. Reece also proposed establishing 1, 800 square feet of lawn and a 130-square foot walkway on her property in the frontal dune, which combined would cover approximately 19% of her lot.

The DEP obtained reviews from other State agencies including the Maine Department of Inland Fisheries & Wildlife ("IFW"), regarding wildlife habitat, and the Maine Geological Survey ("MGS"), regarding location of the V-Zone, [1] delineation of the frontal dune, and erosion. DEP staff conducted several site visits. During the review process, the DEP received and considered comments and evidence from many members of the public, including Petitioner. On July 31, 2013, the DEP Commissioner issued a draft order which would approve the proposed project. Comments on the draft order were received from Ms. Reece, Petitioner, and members of the public. On August 16, 2013, the Commissioner approved the permit application. On that same day, the Commissioner issued a corrected order to include standard conditions that were inadvertently omitted in the original order. The Commissioner's Order (the "DEP Order") found that the proposed project met the licensing standards in NRPA and the Sand Dune Rules and approved the permit subject to specified conditions.

Two appeals of the DEP Order were filed with the Board on September 16, 2013. One appeal was filed by Petitioner and the other was by Mary Small, Ann Wong, and John McCarthy, Jr. The appeals were consolidated and on March 6, 2014, the Board heard and denied the appeals, affirming the DEP Order (the "Board Order"). Petitioner filed a timely Petition for Review to the Superior Court.

"When a dispute involves an agency's interpretation of a statute it administers, the agency's interpretation, although non conclusive is entitled to great deference and will be upheld unless the statute plainly compels a contrary result." FPL Energy Maine Hydro LLC v. Dep't of Envtl Prot, 2007 Me 97, ¶ 11, 926 A.2d 1197 cert denied 552 U.S. 1100 (2008) (quoting Town of Eagle Lake v. Comm'r Dep't of Educ, 2003 ME 37, ¶ 8, 818 A.2d 1034). If a statute is ambiguous, the court reviews the agency's construction to assess whether it is reasonable. Town of Eagle Lake, 2003 ME 37, ¶ 8, 818 A.2d 1034. The court will not "second-guess" an agency on issues within its area of expertise; rather, the court reviews only to ascertain whether its conclusions are "unreasonable, unjust, or unlawful." Id. (quoting Wood v. Superintendent of Ins., 638 A.2d 67, 71 (Me. 1994)). When reviewing an agency's statutory interpretation, the Court looks first to the plain meaning of the words to discern the real purpose, looking to avoid absurd, illogical or inconsistent results. Mallinckrodt U.S., LLC v. Dep't of Envtl Prot, 2014 ME 52, ¶ 17, 90 A.3d 428; FPL Energy, 2007 Me 97, ¶ 12, 926 A.2d 1197.

Similarly, "[i]n reviewing an agency's interpretation of its own rules, regulations, or procedures, we give considerable deference to the agency and will not set aside the agency's interpretation unless the regulation or rule compels a contrary result." Forest Ecology Network v. Land Use Regulation Comm'n, 2012 ME 36, ¶ 28, 39 A.3d 74 (quoting Nelson v. Bayroot, LLC, 2008 ME 90, ¶ 17, 953 A.2d 378). The party attempting to vacate the agency's decision bears the burden of persuasion. Id. If the agency's decision was committed to the reasonable discretion of the agency, the party appealing has the burden of demonstrating that the agency abused its discretion in reaching the decision. Id. (citing Soger v. Town of Bowdoinham, 2004 ME 40, ¶ 11, 845 A.2d 567. "An abuse of discretion may be found where an appellant demonstrates that the decisionmaker exceeds the bounds of the reasonable choices available to it, considering the facts and circumstances of the particular case and the governing law." Id.

An agency's factual findings "will be vacated only if there is no competent evidence in the record to support a decision." Friends of Lincoln Lakes v. Bd. Of Envtl Prot, 2010 ME 18, ¶ 14, 989 A.2d 1128. When reviewing factual findings, a court should not substitute its judgment for that of the fact finding agency. Id. at ¶ 12. A court must affirm the agency's "findings of fact if they are supported by substantial evidence in the record, even if the record contains inconsistent evidence or evidence contrary to the result reached by the agency." Id. at ¶ 13.

Petitioner contends the Board and DEP committed an error of law in finding that the "approximately 180-square foot driveway" Ms. Reece seeks to construct is a "driveway" and not a "road." This determination is important because section 6(B] of the Rules prohibits the development of new structures, including "roads, " on a frontal dune, but permits the construction of "driveways." See 06-096 C.M.R. ch. 355, §6(B](1] (2012]. NRPA and the Rules do not define the terms "driveway" or "road."

The DEP Order found that the "proposed driveway will provide access from the proposed access way to the applicant's property so that she can drive a vehicle onto her property" and that, as a result, the "proposed driveway falls within the common understanding of 'driveway' and so falls within the exception for new construction in frontal dunes...." The Board Order affirmed the DEP Order explaining that "the proposed project meets the common definition and intended purpose of a driveway: to provide access to a lot."

Petitioner argues the normal understanding of the term "driveway" is not the route or way that provides access to a lot, but "how one moves from one point to another on the lot to get to the preferred location within the lot." Petitioner contends that under the definition utilized by the Board and DEP, "all portions of every street and every road adjacent to or in the vicinity of a lot would be a 'driveway.'" If that were the case, "each owner of the next 25 frontal sand dune lots could develop the portion of Riverview [Avenue] most adjacent to their lot and there would still never be a 'road, '" but only "a series of connected driveways that everyone can use." (emphasis in original). Petitioner contends that given the strong public policy and environmental objectives underlying NRPA and the Rules, [2] close calls and ambiguities should be resolved in favor of an interpretation restricting projects on coastal sand dunes.

Petitioner further argues that a "driveway" is considered to be a route of private access over private property to a particular point, with the existence of other structures at the end destination point. In support, Petitioner points to the Phippsburg Shoreland Zoning Ordinance, which defines "driveway" to mean "[a] vehicular access-way less than five hundred [500) feet in length serving two single family dwellings or one two family dwelling, or less" with the term "dwelling" meaning a "fixed structure containing one or more dwelling units." Phippsburg, ME., Shoreland Zoning Ordinance § 18 [adopted June 9, 2009 as amended through May, 2012) Town of Phippsburg Website / Municipal Ordinances / Shoreland Zoning Ordinance (visited October 7, 2014). Ms. Reece's lot, Petitioner argues, does not satisfy this definition because it is undeveloped and not capable of being developed to add a building.

Respondent[3] counters that the DEP and Board Orders' interpretation of "driveway" is not contrary to the plain wording or intent of NRPA and the Rules and is entitled to deference. Respondent argues that the underlying findings of fact about the driveway's layout and purpose, fit within the exception under section 6(b)(1) and are supported by competent evidence. In particular, Respondent points to Ms. Reece's amended site plan and related communications showing the proposed driveway is only 15 feet long with an average width of 12 feet and that the purpose is to provide access from the proposed access way on Riverview Avenue into Ms. Reece's lot.

Respondent also argues that nothing in the Rules or in common understandings of the term driveway suggests, as Petitioner contends, that it must be located on a person's lot as opposed to being on an express easement or an implied easement/paper street as in the present case. Respondent asserts that it is not uncommon for a landowner's driveway to pass over land owned by another person on an easement or right-of-way. Furthermore, Respondent contends that Petitioner misreads the DEP and Board Orders, which do not suggest that every road in the vicinity of a lot would constitute a driveway under the Section 6(B)(1) exception.

Respondent further argues that its interpretation of "driveway" does not violate the intent and spirit of NRPA or the Rules as there is no language compelling the Board to adopt an interpretation of "driveway" requiring the entire driveway be contained on the licensee's lot

Ms. Reece responds to Petitioner's argument by clarifying that only the 15 foot long "driveway" is being constructed in the frontal sand dune, not the access way on Riverview Avenue. Furthermore, Ms. Reece argues, the proposed driveway does not provide vehicular access to any other improvements on the frontal dune and does not become a "road" just because it is built on a paper street that could be developed into a road. Ms. Reece also argues the DEP and Board Orders did not err because the "most common meaning of 'driveway' is an improved area used for vehicular traffic to and from a public or private road to one or more parcels of land" and the "common meaning of 'road' is an improved area regularly used by several parties for vehicular traffic."

Petitioner replies that neither Respondent nor Ms. Reece offer a reasonable basis for labeling one portion of the access way a "road" and another portion a "driveway." Petitioner argues that in effect, Respondent and Ms. Reece argue that the last 15 feet of a "road" should be exempt from the prohibition of development of a road in a frontal sand dune. To illustrate this point, Petitioner attaches a number of exhibits to his reply brief showing the proposed development on the Riverview Avenue paper street leading to the Reece lot, as well as other possible developments.. The exhibits purport to show that both a direct and winding course of road on Riverview Avenue leading to Ms. Reece's lot would be impermissible, so there is no reason to permit Ms. Reece's driveway simply because it runs on a perpendicular course into the access way. Petitioner categorizes the Board's finding as elevating form over substance and not a proper exercise of regulatory discretion.

Based on the assumption that Ms. Reece's driveway is indistinguishable from the access way, Petitioner reiterates his argument that under the Board's interpretation, all the other streets in the potential development would be "driveways" serving everyone in the area.

The Court affirms the Board and DEP Orders' determination that the term "driveway" means "to provide access to a lot" and that Ms. Reece's proposed "driveway" fits this definition. The terms "driveway" and "road" are ambiguous because they are not defined in NRPA or the Rules and can be defined in multiple ways. As a result, the Court gives considerable deference to the DEP and Board's interpretation. Forest Ecology Network, 2012 ME 36, ¶ 28, 39 A.3d 74. Accordingly, while Petitioner's definition of a "driveway" as "how one moves from one point to another on the lotto get to the preferred location within the lot" is reasonable, this does not demonstrate that the DEP and Board's interpretation is beyond the reasonable choices available to them or that Petitioner's definition is compelled by NRPA and the Rules.[4]

Furthermore, Petitioner's warning that the DEP and Board's definition of "driveway" is overbroad lacks merit because the DEP and Board have yet to define the term "road" and could interpret that term in a manner that would limit the definition of "driveway." Similarly, Petitioner's contention that each owner of the next 25 frontal sand dune lots could develop their lots through a series of "driveways" mistakenly assumes that the access way from Riverview Avenue constitutes a driveway and not a road. The DEP and Board Orders do not make that finding. In addition, Petitioner's contention that NRPA and the Rules evince a strong intention to protect coastal sand dunes from over-development does not mean that the DEP and Board's interpretation of Ms. Reece's proposed 15-foot gravel "driveway" violates those goals. Indeed, the Rules themselves contemplate and exempt "driveways" from prohibited structures on frontal dunes. 06-096 ch. 355 §6(B). Finally, Petitioner's warning that the DEP and Board Orders permits every other lot owner to do as Ms. Reece has done is speculative and does not necessarily follow from the Orders. As Petitioner points out, NRPA warns of "the cumulative effect of frequent minor alterations[.]" 38 M.R.S.A. § 480-A. There is no reason why the DEP and Board could not take into account the cumulative effect of development along the dune lots and tailor the resulting permits accordingly. The Court should not speculate as to possible definitions or interpretations the DEP could adopt that might violate the Rules and NRPA.

Petitioner contends that the Board and DEP committed an error of law in effectively substituting the word "building" for the word "project" in section 5(C) of the Rules and determining that the "severe damage" consideration section did not apply to Ms. Reece's proposed project. In addition, Petitioner contends the Board and DEP's conclusion that even if the severe damage ...

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