The opinion
STATE OF MAINE
CUMBERLAND, ss.
i<~ SUPERIORCOURT
, CIVIL ACTION
/
~ \ '2 \~:) 2: ~ 'DOC.).<ET NO.. : AP-07-0 5 _
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JEANNE M. NAJEMY
and
RICHARD N. BRYANT
Petitioners,
80CAPPEAL
v.
BOARD OF ENVIRONMENTAL
PROTECTION
Defendant
SPURWINK WOODS, LLC
Party in Interest,
LYNDON KECK and HOLLY HOFFMAN
Parties in Interest.
This case comes before the Court on Petitioners Jeanne M. N ajemy and
Richard N. Bryant's appeal of a governmental action pursuant to M.R. Civ. P.
80C.
BACKGROUND
Petitioners Jeanne M. Najemy and Richard N. Bryant (collectively
"Petitioners") appeal a final agency order (the "Order") issued by the Board of
l
Environmental Protection ("BEp ) approving a 42 unit single-family and
condominium subdivision in Cape Elizabeth, Maine (the "Town") formerly
referred to as Spurwink Woods and now renamed Cottage Brook (the "Project").
1
Spurwink Woods, LLC (''Developer''), Lyndon Keck and Holly Hofmann are
Parties in Interest.
Petitioners reside in the immediate vicinity of the Project and opposed the
Project during subdivision review before the BEP, the Department of
Environmental Protection ("DEP") and the Cape Elizabeth Planning Board (the
"Planning Board").
The Order, issued on February I, 2007, approved the Project under the
Stonnwater Management Law and Natural Resources Protection Act. However,
the BEP detennined that the Project did not require review under the Site
Location of Development Law, 38 M.R.S.A. §§ 481- 490 ("Site Location Law").
Site Location Law regulates development that "may substantially affect the
environment." 38 M.R.S. § 482(2) (2007). Because the BEP made this
determination, the Project was not subject to recently developed stonnwater
quality standards that Petitioners contend would force design changes to the
Project, thereby providing additional protection to the surrounding Trout Brook
watershed and additionally to Petitioners' interest in their home.
The BEP detennined that the Project was not a "regUlated development"
pursuant to 38 M.R.S.A. § 482(2) and thus was not subject to Site Location Law.
This determination was based on findings that "the Project neither (i) involves
three acres or more of 'structure' as defined in § 482(6)(B), nor (ii) constitutes a
'subdivision' of more than twenty acres as defined in § 482(5). Petitioners
contend that "these conclusions resulted from erroneous interpretations of the
statute, or were the result of an arbitrary and capricious abuse of discretion and
unsupported by competent evidence." Petitioners further contend that they
were denied meaningful process to contest BEP's approval of the Project.
2
DISCUSSION
I. Standard of Review
The Court may only reverse or modify an administrative agency's
decision if it is based upon "bias or error of law/' is "unsupported by substantial
evidence on the whole record/' is "arbitrary and capricious," or involves an
"abuse of discretion" by the agency. 5 M.R.S.A. § 11007(4)(C)(4)-(6). According
to the Law Court, the power to review decisions of the Commission is confined
to an examination of "whether the Commission correctly applied the law and
whether its fact findings are supported by any competent evidence." McPherson
Timberlands, Inc. v. Unemployment Ins. Comm'n, 1998 ME 177,<j[ 6,714 A.2d 818,
820.
Additionally, the Court cannot "substitute its judgment for that of the
agency on questions of fact." 5 M.R.S.A. § 11007(3). "[U]nless the record before
the Commission compels a contrary result," the Court will uphold the agency
decision. McPherson, 1998 ME 177, <j[ 6, A.2d at 820. Finally, "the burden of proof
clearly rests with the party seeking to overturn the decision of an administrative
agency." Seven Islands Land Co. v. Me. Land Use Regulation Comm'n, 450 A.2d 475,
479 (Me. 1982).
With respect to statutory interpretation, great deference is afforded to an
agency's interpretation of a statute it is charged to enforce. Murphy v. Bd. of Env.
Prot., 615 A.2d 255,259 (Me. 1992) (citing Bar Harbor Banking & Trust Co. v. Bureau
of Consumer Prot., 471 A.2d 292, 296 (Me. 1984)). "Although an administrative
interpretation is never conclusive on the court, itshould not be lightly
disregarded unless the statute plainly compels a contrary result." Id. (citations
omitted). "When there is ambiguity, however, we defer to the interpretation of a
3
statutory scheme by the agency charged with its implementation as long as the
agency's construction is reasonable. Conservation Law Found., Inc., v. Dept. of Env.
Prot., 2003 ME 62, <]I 23, 823 A.3d 551, 559. Moreover, the meaning of a statute
must be interpreted in light of the purpose for the legislation. Murphy, 615 A.2d
at 259.
II. Did the BEP Improperly Find the Project Was Not Within the
Iurisdiction of Site Location Law?
Petitioners contend that the BEP erroneously found that the Project
contained less than the three acres of structure and that it was not a subdivision
as defined by Site Location Law.
a. Did the BEP Erroneously Find that The Project Contains Less
Than Three Acres of Structure as Defined in § 482(6)(B)?
Under Maine law, if any development contains more than three acres of
structure, as defined by 38 M.R.S.A. § 482(6), it falls within the purview of Site
Location Law. 38 M.R.S.A. § 482(6). Structure is defined as:
Buildings, parking lots, roads, paved areas, wharves or areas to be
stripped or graded and not to be revegetated that cause a total
project to occupy a ground area in excess of 3 acres. Stripped or
graded areas that are not revegetated within a calendar year are
included in calculating the 3-acre threshold.
Id. Petitioners claim that the DEP failed to consider structures during
preliminary hearings nor were structures fully considered on BEP appeal.
Further, BEP calculations of structure for the Project were inaccurate because
they failed to include "substantial permanent improvements shown on the
October 2006 plan." Specifically, the BEP failed to consider 1) the trail system as
structure; 2) a portion of South Street; 3) a sidewalk to be constructed along
South Street; and 4) a retaining wall to be constructed at the northerly end of
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South Street (collectively the "omitted structures"). Had the omitted structures
been considered, it is asserted, the Project would fall within the purview of Site
Location Law.
1. Did the DEP and the BEP Fail to Consider Relevant
Structures?
Petitioners assert that the omitted structures were repeatedly pointed out
at the BEP appellate hearing on February 1, 2007 based on Developer's post
appeal submissions, but that the BEP failed to address the concerns. Further,
they assert, prior to the appeal, specific structure calculations were not
considered by the DEP, which omissions amount to arbitrary and capricious
calculations, unsupported by the evidence in the record.
In response the BEP points to DEP findings of fact finding 2.80 acres of
structure at the Project. These findings were supported by a report requested
from Developer and prepared by Developer's consultant, John D. Mitchell, and
by DEP employee notations on some of the plans. That estimate was revised to
2.96 acres in a September 1, 2006 letter from Mitchell reflecting the BEP's
willingness to revisit the calculations. Accordingly, Site Location Law was
considered before the DEP and the BEP.
11. Were the BEP's Findings of Fact Sufficient to Apprise
Interested Parties of the Basis for Their Decision?
"Under the Administrative Procedure Act, all agency decisions made at
the conclusion of an adjudicatory proceeding must 'include findings of fact
sufficient to apprise the parties of any interested member of the public of the
basis for the decision." Murphy, 615 A.2d at 260 (quoting 5 M.R.S.A. § 9061
5
(1989». This does not, however, "require an agency to make a detailed incident-
by incident fact finding." Jd.
In this case the BEP, in the February 2007 Order, did address in detail, the
basis for their decision to find less than 3 acres of structure. Consequently, the
BEP met its burden of providing sufficient findings to apprise Petitioners of the
basis of their decision.
iii. Did the DEP and BEP Erroneously Exclude Certain
Structures in Their Calculations?
Petitioners listed omitted structures that they contend bring the Project
well within the scope of Site Location Law. The BEP contends, however, that
Petitioners have failed to read the law in context regarding subdivisions and
structures and thus have misinterpreted the requirements under Site Location
Law. Specifically, that single-family residential subdivisions are excluded from
structure calculations. See 38 M.R.S. § 488(17) (2007).1 Consequently, when
considering a subdivision with both single and multi-family units, the DEP
"carefully calculates" those structure areas not associated with the single-family
units and determines if the 3-acre structure threshold has been met.
Petitioners take issue with the DEP and BEPs categorization of omitted
structures as associated with single-family units, or otherwise exempt from
calculation. However, the BEP specifically addresses each contested structure
and articulates the basis for their decision with support from the record.
1 17. Structure area within residential lots. Buildings, roads, paved areas or areas to be
stripped or graded and not revegetated that are located within lots used solely for
single-family residential housing are not counted toward the 3-acre threshold described
in section 482, subsection 6, paragraph B for purposes of determining jurisdiction. A
road associated only with such lots is also not counted toward the 3 -acre threshold. For
purposes of this subsection, "single-family residential hOUSing" does not include multi
unit housing such as condominiums and apartment buildings.
6
Accordingly, BEP/s calculations are neither arbitrary nor capricious and
are based on a reasonable interpretation of the statute.
b. Did the BEP Erroneously Find that The Project Does Not
Constitute a 'Subdivision' of More Than Twenty Acres as
Defined in § 482(5)?
The land upon which the Project is situated has consistently been referred
to as a 24.97-acre parcel. A significant subdivision is defined as:
A "subdivision" is the division of a parcel of land into 5 or more lots
to be offered for sale or lease to the general public during any 5
year period, if the aggregate land area includes more than 20 acres;
except that when all lots are for single-family, detached, residential
housing, common areas or open space a "subdivision" is the
division of a parcel of land into 15 or more lots to be offered for sale
or lease to the general public within any 5-year period, if the
aggregate land area includes more than 30 acres. The aggregate
land area includes lots to be offered together with the roads,
common areas, easement areas and all portions of the parcel of land
in which rights or interests, whether express or implied, are to be
offered.
38 M.R.S. § 482(5) (emphasis added). Exceptions to the definition exist.
Specifically not calculated into the aggregate acres are any "[p]ersonal, nonprofit
transactions, such as the transfer of lots by gift. ..."
In this case Developer has "gifted" 12.58 acres to the Town and thus/
according to the BEP, the aggregate acreage is less than 20 acres. Petitioner
counters that the 12.58 acres cannot be construed as a "gift" because Developer
commercially gains from the conveyance by avoiding certain fees and by
circumventing Site Location Law. Furthermore, they assert that residents will
have rights or interests in the "gifted" lot and thus it should be included in the
calculations.
7
According to the BEP, a general20-acre threshold for subdivisions is an
inaccurate reading of the law because the § 402(5) definition of subdivision has
many interrelated factors. Moreover, though residents will have access to the
"gifted" acreage, they have not been offered "rights" in it; meaning that they will
have no more say over the management of the 12.58 acres than the public at
large. Thus it should be excluded from the calculation.
This reading of the law is based in public policy. The BEP has
determined, and has consistently read the law, to encourage developers' gifts of
land to towns. The BEP is harmonizing town ordinances that incentivize such
gifts in lieu of fees and restrictions with DEP laws, thus promoting efficient land
use and open space. This interpretation, they assert, serves the real purpose of
the legislation. 2 See Murphy, 615 A.2d at 259.
This Court must show great deference to the determinations made by the
BEP both as a matter of fact and as a matter of statutory interpretation. The
Court thus determines that this reading of the law is not unreasonable.
III. Were Petitioners Denied Sufficient Process to Fairly Contest the
Order?
Ultimately the Petitioners contend that the BEP failed to meaningfully
address Petitioners' concerns because it did not remand Site Location Law issues
2 38 M.R.S.A. § 481 reads in pertinent part:
The purpose of this SUbchapter is to provide a flexible and practical
means by which the State, acting through the department, in
consultation with appropriate state agencies, may exercise the
police power of the State to control the location of those
developments substantially affecting local environment in order to
insure that such developments will be located in a manner which
will have a minimal adverse impact on the natural environment
with the development sites and of their surroundings and protect
the health, safety and general welfare of the people.
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to the DEP for further fact finding, but allowed the issue to be improperly
considered on appeal, where Petitioners' bore the burden of proof.
The BEP stands by their fact-finding process and their conclusions.
Petitioners were present and heard throughout the licensing process. Developer
did bear his burden as evidenced by the Mitchell letter. Indeed the BEP asserts
that they liberally allowed Petitioners to submit further evidence on appeal.
Though the DEP record is sparse surrounding Site Location Law there
was some evidence in the record to support DEP conclusions. Because this
Court cannot "substitute its judgment for that of the agency on questions of fact,"
5 M.R.S.A. § 11007(3), and because the record does not compel a contrary result,
this Court affirms the agency decision.
The entry is:
The February 1, 2007 Order of the Bureau of
approving the Cottage Brook Project is AFFIRMED.
DATE:~//'~~
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Date Filed 03-07-07 CUMBERLAND Docket No. AP-07-1S
County
•
Action _ 80C APPEAL
JEANNE M NAJEMY BOARD OF ENVIRONMENTAL PROTECTION
RICHARD N BRYANT SPURWINK WOODS LLC (PII)
LYNDON KECK (PII)
HOLLY HOFFHAN (PU)
vs.
Plaintiff's Attorney Defendant's Attorney
RICHARD N BRYANT ESQ PAUL F. DRISCOLL, ESQ.
20 YORK STREET SUITE 202 P.O. BOX 4600 (Spurwink)
PORTLAND ME 04101 PORTLAND, MAINE 04112-4600
(207) 871-7500 774-7000
MARGARET BENSINGER AAG (BOARD OF ENV. PRO)
6 STATE HOUSE STATION
AUGUSTA ME 04333-0006