The opinion
STATE OF MAINE
CUMBERLAND, ss. “a CIVIL ACTION
OCKET NO. AP-03-80
3 33 PML,
Ly
Sablegolf, LLC and Sablots, LLC,
Petitioners
Vv ORDER
Maine Department of Environmental Protection
and Pinnacle Partners of Sable Oaks, LLC,
Respondents
This case comes before the Court on Sablegolf, LLC and Sablots, LLC’s Petition
pursuant to M. R. Civ. P. 80C.
FACTS
Sablegolf, LLC and Sablots, LLC (Petitioners) seek review of the December 4,
2003 decision of the Board of Environmental Protection (the Board) affirming an April
24, 2003 decision by the Maine Department of Environmental Protection (MDEP) which
approved the application of party-in-interest Pinnacle Partners (Pinnacle) of Sable Oaks,
LLC, to construct an office building with parking at 1515 Sable Oaks Drive in South
Portland. The proposed building will be next to the Sable Oaks Golf Course and within
the Sable Oaks development. In addition to the construction, Petitioners claim that
Pinnacle’s plans call for the removal of most of the vegetation on the property, the fill of
approximately 6, 732 square feet of wetlands to create parking and will create a storm
run off system that will dump untreated water into the golf course’s irrigation pond.
Petitioners object to the construction of an office building with over 500 parking spots in
the middle of a golf course in the “campus-like” business park that Petitioners have
worked to develop.
On April 24, 2003, the MDEP issued Site Law, National Resources Protection and
Water Quality Certification approvals for the project. On May 23, 2003 Petitioners
submitted a timely appeal. The Board considered the appeal on December 4, 2003, but
voted 5-2 to affirm the MDEP’s order, issuing a written decision on December 10, 2003.
Petitioners filed a timely appeal to this court alleging (1) that the MDEP misinterpreted
and misapplied the Site Law standard requiring evidence of financial capacity to
construct, operate and maintain the project; (2) the MDEP failed to find that Pinnacle’s
development will affect existing neighbors and the scenic character of the area; and (3)
the MDEP failed to require Pinnacle to avoid wetlands impact to the extent feasible.
STANDARD OF REVIEW
When the court acts in an intermediate appellate capacity to review an
administrative agency’s decision pursuant to M.R. Civ. P. 80C, the agency’s decision is
reviewed for errors of law, abuse of discretion or findings not supported by substantial
evidence in the record. Town of Jay v. Androscoggin Energy, LLC, 2003 ME 64, { 10, 822
A.2d 1114, 1117, Munjoy Sporting and Athletic Club v. Dow, 2000 ME 141, J 6, 755 A.2d
531, 536. As the party attempting to vacate the decision, the petitioner bears the burden
of persuasion. Town of Jay, J 10, 822 A.2d at 1117. The Court gives deference to an
agency’s interpretation of a statute it administers, but the Court will not uphold the
agency’s interpretation if the language and purpose of the statute or the agency’s
practice in other cases contradicts the specific interpretation Id.
DISCUSSION
I. FINANCIAL REQUIREMENTS
Under Maine law,
The department [of environmental protection] shall approve a development proposal
developer has the financial capacity and technical ability to develop the
project in a manner consistent with state environmental standards and
with the provisions of this article. The commissioner may issue a permit
under this article that conditions any site alterations upon a developer
providing the commissioner with evidence that the developer has been
granted a line of credit or a loan by a financial institution authorized to do
business in this State as defined in Title 9-B, section 131, subsection 17-A or
with evidence of any other form of financial assurance the board
determines by rule to be adequate
38 M.R.S.A. 484(1).
Pinnacle submitted an undated letter of interest from its bank as well asa
December 9, 2002 letter of interest (in the amount of $10 million dollars). Petitioners
point to the fact that neither of these letters is a “letter of commitment” and also allege
that $10 million understates the total project cost. Neither document mentions equity or
what percentage of the total budget is coming from Pinnacle itself. There are no
documents discussing how Pinnacle will maintain the site. There are no documents
regarding negotiations with tenants or leases in the file.
Petitioners seem most concerned with the fact that when (or if) Pinnacle does
submit detailed financial information, Petitioners will not be able to see it because the
comment period will be over, which Petitioners see as a denial of their due process
rights.
MDEP interprets the statute to allow MDEP the discretion to demand more
detailed financial capacity information after the permits have been issued and before
construction actually begins. The Board conditioned Pinnacle’s permits upon the
production of more detailed financial information before construction began and
intends to hold Pinnacle to that requirement. Pinnacle stated that every request for
more detailed financial information was fulfilled and that it plans to continue to follow
the Board’s instructions throughout the process. Record at tab 45, page 11, condition 3.
Furthermore, Pinnacle admits in its brief that it understands that no construction can
commence until it obtains a firm funding commitment. This follows from its original
application position in which Pinnacle estimated that the project’s total cost would be
$8 million, it would not begin construction until a “suitable amount” of the building
was pre-leased and promised to provide more detailed financial information to the
MDEP prior to the beginning of construction.
Petitioners’ suggestion, at oral argument, that such conditioning of approval
violates the express terms of first sentence of 38 M.RS.A. § 484( 1) is not persuasive
when read together with the express statutory language of the second sentence,
allowing such conditioned approval.
II. IMPACT ON THE NEIGHBORS
Petitioners argue that the MDEP did not consider the impact of Pinnacle’s project
on the scenic character of the Sable Oaks business park. Petitioners are concerned with
how the proposed building is going to look from the golf course (the removal of
vegetation along the boundary and the “massive” parking lot) and what impact the new
building is going to have on the “campus like” environment. For example, golfers will
now see a high fence instead of tall, mature fir trees.
Before issuing a permit, the department shall find that :
the developer has made adequate provision for fitting the development
harmoniously into the existing natural environment and that the
development will not adversely affect existing uses, scenic character, air
quality, water quality or other natural resources in the municipality or in
neighboring municipalities.
38 M.R.S.A. 481(3).
The MDEP alleges that there is substantial evidence in the record that Pinnacle is
acting to minimize the effect of its project on the neighbors, but there are other
buildings and parking lots in the vicinity, as this is an office park. MDEP also points to
several changes that have been made to Pinnacle’s design plans, which tried to make
the project more palatable to the Petitioners (the position of the building, including its
orientation and the fact that some of it will be built into the hill). At oral argument
MDEP noted that 47% of the site will be comprised of landscaped or natural vegetation.
il. IMPACT ON THE EXITING WETLANDS
“Alteration of freshwater wetland areas on the property must be avoided to the
extent feasible considering cost, existing technology and logistics based on the overall
purpose of the project.” 38 M.R.S.A. 480-X(3)(A)(1). “The area of the freshwater
wetland to be altered must be limited to the minimum amount necessary to complete
the project.” 38 M.R.S.A. 480-X(3)(A)(2).
Petitioners argue that Pinnacle is making the maximum impact on the wetlands
in question, including creating a larger parking lot than is required by South Portland
zoning laws and necessity. Pinnacle responded to questions regarding parking with a
letter from a commercial broker that states tenants look for buildings with a 5:1000 ratio
(5 spots to every 1,000 square feet of office space) and some businesses look for more.
Pinnacle argues that is doing the best it can to balance the wetlands and its
project. In response to DEP comments, Pinnacle changed its plans so that
approximately 800 fewer feet of wetlands were impacted and it is creating anew
wetland area on the property. At oral argument, the DEP noted that the wetland area in
question was small, only a few thousand square feet above the minimum amount
needed for review at all.
Because Petitioners have failed to show that the evidence in question compels a
conclusion opposite from the one the DEP and the Board reached, their petition
pursuant to MLR. Civ. P. 80C is hereby DENEID.
Date il “5 27,200 hide
fistice, Superior Court
Date Filed 12-31-2003 Cumberland
AP-03-~80
County
Action 80C Appeal
SABLEGOLF, LLC
SABLOTS, LLC
- Docket No.
MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTIO:
PINNACLE PARTNERS OF SABLE OAKS, LLC (PIT)
VS.
Plaintiff's Attorney
Philip F.W. Ahrens, III, Esq./Helen L.
Edmonds, Esq./Scotia R. Ryer, Esq.
Pierce Atwood
One Monument Square
Portland, ME 04101
207-791-1100
Date of
Entry
Defendant’s Attorney (Environmental Prot.)
Margaret Bensinger McCloskey
Assistant Attorney General
Maine Bar # 3003
6 State House Station
Augusta, Maine 04333-0006
207-626-8800
JOHN BANNON, ESQ. (PINNACLE)