DWAYNE R. BENNETT and LAURIE E. CASTLE, Petitioners,
LAND USE PLANNING COMMISSION Respondent, VIOLETTA WIERZBICKI Petitioner,
LAND USE PLANNING COMMISSION Respondent, And EVERPOWER MAINE, LLC and DEANA AND WAYNE BUCK, Parties-in-Interest.
ORDER ON 80C APPEAL
E. Walker Justice, Superior Court.
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
Background and Procedural History
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. (Resp't's Br. 17); (R.
Vol. VI, Tab 176, ¶ 82 p. 19, ¶ 83 p. 20); 35-A
M.R.S. § 3453-A(3).
January 25, 2017, Petitioners 1 and 2 filed notices of appeal
of LUPC's decision. The appeals were consolidated on
March 9, 2017.
Standard of Review
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.
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.
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.
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.
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).
Criterion A: the wind energy goals
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 ...