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Tourangeau v. Maine Board of Environmental Protection

Superior Court of Maine, Cumberland

January 9, 2015

DAVID TOURANGEAU, et al, Petitioners


Thomas D. Warren, Justice, Superior Court.

Before the court is a Rule 80C appeal by petitioners David Tourangeau and Marjorie Getz, representing themselves, from a June 5, 2014 decision of the Board of Environmental Protection denying their appeal from the issuance of a DEP permit allowing Janis and Paul Walsh to add a set of seasonal floats to a pier in front of their property on Foreside Road in Falmouth.

Tourangeau and Getz are neighbors of the Walshes who own a waterfront lot to the north of the Walsh property. They previously sought to appeal the DEP's approval of a prior permit issued for the Walsh pier but that appeal had been dismissed as untimely by the Board. Tourangeau and Getz had also filed an unsuccessful petition to have that permit revoked. On appeal the Superior Court (Wheeler, J.) affirmed the Board's dismissal of Tourangeau and Getz's pier appeal as untimely and also affirmed the Commissioner's decision to dismiss their petition to revoke the pier permit.

Tourangeau and Getz appealed those decisions to the Law Court, which consolidated their appeals and affirmed the decisions of the Board and of the Commissioner on August 7, 2014. Getz v. Walsh, 2014 ME 103, 102 A.3d 756. This appeal, therefore, does not present an opportunity to relitigate issues relating to the pier but only issues relating to the permit for seasonal floats to be attached to the pier.

Procedural History

The DEP granted the original permit for the Walsh pier on January 29, 2013. (R. Tab 8). On March 8, 2013 the Walshes filed an application to add floating walkways and an additional float at the end of the pier. (R. Tab 9). There is a 15 to 30 foot high bluff that runs along the shoreline of the Walsh property and from the base of the bluff to the low tide mark there are approximately 320 feet of tidal flats. (R. Tab 143 at 2-3). The pier that was the subject of the original permit extends approximately 165 feet out over the flats and included a seasonal ramp and float that extends another 35 feet. (R. Tab 8). It did not provide access to the water at low tide.

The second permit application was intended to allow the Walshes to attach a string of seasonal floats that they had previously maintained at the northern edge of their property to the end of the pier structure, thereby extending their access to the water another 120 feet to just beyond the mean low water mark. (R. Tab 9; R. Tab 143 at 3).

Tourangeau and Getz were given notice of the March 8, 2013 permit application and submitted comments raising various concerns. The DEP issued the permit on October 2, 2013 (R. Tab 61), and Tourangeau and Getz filed a timely appeal to the Board of Environmental Protection pursuant to 38 M.R.S. § 341-D(4) and 06-096 C.M.R. ch. 2 § 24. (R. Tab 68). In their appeal Tourangeau and Getz requested a hearing and also requested that certain supplemental evidence be included in the record. (Id. at 1). See 06-096 C.M.R. ch. 2 § 24(A).

In a ruling issued on December 30, 2013 (R. Tab 96 at 2), the Board Chair denied certain of Tourangeau's requests to include supplemental evidence in the record on the grounds that with the exercise of due diligence, the proposed evidence could have been brought to the attention of the Department before it issued the permit in question. See 06-096 C.M.R. ch. 2 § 24(D)(2). The Board Chair allowed the inclusion of supplemental evidence consisting of evidence in the Department's file relating to the first permit application for the pier. (R. Tab 96 at 2-3).[1]

The Board considered the appeal by Tourangeau and Getz at a June 5, 2014 meeting. (R. Tab. 139). Tourangeau and Getz were informed that they would have an opportunity to present oral argument on their appeal. (Id.).

At the June 5 meeting, after oral argument and deliberations, the Board unanimously voted to deny the appeal by Tourangeau and Getz and adopted an order affirming the Department's decision to issue the permit allowing the Walshes to attach the additional floats at the end of their existing pier structure. (R. Tab 142). The Board's order addressed the appellants' request for a public hearing but noted that such a hearing is discretionary under 38 M.R.S. § 341-D(4) and concluded that the evidentiary record was sufficiently developed and that a public hearing was not warranted. (R. Tab 143 at 4).

Tourangeau and Getz then appealed to this court.

Petitioners' Request to Supplement the Record under Rule 80C(f)

After they filed their appeal to this court, Tourangeau and Getz filed a motion to supplement the record under Rule 80C(f). That motion is opposed by counsel ...

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