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Bennett v. Land Use Planning Commission

Superior Court of Maine, Oxford

August 8, 2017

DWAYNE R. BENNETT and LAURIE E. CASTLE, Petitioners,
v.
LAND USE PLANNING COMMISSION Respondent, VIOLETTA WIERZBICKI Petitioner,
v.
LAND USE PLANNING COMMISSION Respondent, And EVERPOWER MAINE, LLC and DEANA AND WAYNE BUCK, Parties-in-Interest.

          ORDER ON 80C APPEAL

          Lance E. Walker Justice, Superior Court.

         Before the court are Petitioners Dwayne R. Bennett's and Laurie E. Castle's ("Petitioner 1's"), and Petitioner Violetta Wierzbicki's ("Petitioner 2's") consolidated appeal for review of Respondent Land Use Planning Commission's (LUPC's) decision not to remove Milton Township from the wind energy expedited permitting area. M.R. Civ. P. 80C; 5 M.R.S. §§ 8057(1)-(2), 8058(1). For the reasons below, the court denies Petitioners' appeal.

         I. Background and Procedural History

         On January 8, 2016, the LUPC received a petition to remove Milton Township from the expedited permitting area for wind energy development. (R. Vol VI, tab 176, p. 1.) On February 29, 2016, Party-in-Interest Wayne Buck, a resident and property owner in Milton Township, requested a substantive review. Id.; (R. Vol. I, tab 5, p. 2.); (Parties-in-Interest Ans. 5); 35-A M.R.S. § 3453-A(3). On August 10, 2016, the LUPC held a public hearing. 35-A M.R.S. § 3453-A(1); (R. Vol VI, tab 176, p. 1.) The LUPC received written submissions, testimony, and comments before, during, and after the hearing "from the Substantive Review Petitioner, a potential wind developer, the Petition Circulator, over 80 interested persons, and 8 governmental agencies." (R. Vol VI, tab 176, p. 1); (Resp't's Br. 5.) On December 17, 2016, the LUPC issued a final decision denying the petition, saying that neither statutory criterion for removal was met.[1] (Resp't's Br. 17); (R. Vol. VI, Tab 176, ¶ 82 p. 19, ¶ 83 p. 20); 35-A M.R.S. § 3453-A(3).

         On January 25, 2017, Petitioners 1 and 2 filed notices of appeal of LUPC's decision. The appeals were consolidated on March 9, 2017.

         II. Standard of Review

         When acting in an appellate capacity pursuant to Rule 80C and the Administrative Procedures Act, 5 M.R.S.A. §§ 11001-11008, the court reviews an agency's decision for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record. Somerset Cnty. v. Dep't of Corr., 2016 ME 33, ¶ 14, 133 A.3d 1006. The party seeking to vacate an agency's decision bears the burden of persuasion to demonstrate error. Rossignol v. Me. Pub. Emples. Ret. Sys., 2016 ME 115, ¶ 6, 144 A.3d 1175.

         Questions of law are subject to de novo review. York Hosp. v. HHS, 2008 ME 165, ¶ 32, 959 A.2d 67. Deference is given to an agency's interpretation of an ambiguous regulation or statute that is within its area of expertise unless the interpretation is unreasonable or if the statute or regulation plainly compels a contrary result. Cheney v. Unemployment Ins. Comm'n, 2016 ME 105, ¶ 6, 144 A.3d 45; Lippitt v. Bd. of Certification for Geologists & Soil Scientists, 2014 ME 42, ¶ 17, 88 A.3d 154.

         The Court will not substitute its judgment for that of the agency where there is sufficient relevant evidence that a reasonable mind might accept as adequate to support the resultant conclusion, and the fact-finder could have fairly and reasonably found the facts as they did, even if the record contains inconsistent evidence or evidence contrary to the result reached by the agency. Cheney, 2016 ME 105, ¶ 6, 144 A.3d 45; Guar. Trust Life Ins. Co. v. Superintendent of Ins., 2013 ME 102, ¶ 18, 82 A.3d 121; Watts v. Bd. of Envtl. Prot., 2014 ME 91, ¶ 5, 97 A.3d 115. An agency has the authority to determine the weight to be given to the evidence, and to make its own credibility determinations. Rossignol, 2016 ME 115, ¶ 6, 144 A.3d 1175; 5 M.R.S.A. § 11007(3); Passadumkeag Mt. Friends v. Bd. of Envtl. Prot., 2014 ME 116, 102 A.3d 1181. "It is not sufficient to demonstrate that, on the facts of the case, the decision maker could have made choices more acceptable to the appellant or even to a reviewing court." Stein v. Me. Crim. Justice Acad., 2014 ME 82, ¶ 23, 95 A.3d 612 (citing Sager v. Town of Bowdoinham, 2004 ME 40, ¶ 11, 845 A.2d 567). The reviewing court will vacate a determination that a party failed to meet its burden of proof only if the record compels a contrary conclusion to the exclusion of any other inference. Rossignol, 2016 ME 115, ¶ 6, 144 A.3d 1175.

         Procedural due process claims are analyzed by applying a two-step inquiry: (1) whether the government action has deprived the claimant of a protected property interest; and (2) if such a deprivation occurred, what process is due pursuant to the Fourteenth Amendment. Merrill v. Me. Pub. Emples. Ret. Sys., 2014 ME 100, ¶ 21, 98 A.3d 211.

         Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Agencies may exclude irrelevant or unduly repetitious evidence. 5 M.R.S. §9057(2).

         III. Discussion

         a. Criterion A: the wind energy goals

         Petitioners argue that there was sufficient relevant evidence to meet Criterion A that removal would not have an adverse effect on the State's ability to meet its wind energy goals, where the LUPC had evidence that energy from pending wind projects, not including Milton, exceeded the State's 2030 on shore wind energy goal of 3, 000 megawatts. (Pet'r l's Br. 2); 35-A M.R.S. § 3404(2)(C). The Petitioners argue LUPC was in error to find that ...


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