# Uliano v. Maine Bd. of Envtl. Protection

> Superior Court of Maine · October 24, 2008

URL: https://www.frixlaw.com/law-library/cases/10809040

## Case

- **Court:** Superior Court of Maine
- **Decided:** October 24, 2008
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Kevin M. Cuddy
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10809040

## How later opinions describe it (automated extraction)

- finding standards such as ubad faith" and udishonest" not unduly vague
- quoting, Lewis, 433 A.2d at 749

## Opinion text

STATE OF MAINE SUPERIOR COURT
HANCOCK, ss: CIVIL ACTION
DOCKET NO. AP-07-004
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ANTHONY ULIANO, and
ERIN ULIANO,

Petitioners,

v. DECISION AND ORDER

MAINE BOARD OF
ENVIRONMENTAL PROTECTION,

Respondent.

Background

In March of 2007, Petitioners filed an appeal of final
agency action pursuant to M.R. Civ. P. 80C, which is
currently before the Court.

This matter began in 2001 when Petitioners filed an
application with the Department of Environmental Protection
seeking approval to construct a 95-foot long and 6-foot
wide dock, together with supporting piers, a ramp, and a
float. Following a hearing and the submission of
information, the Department approved the application on
August 6, 2001, having made appropriate findings. On
January 3, 2002, the matter having been appealed to the
Board of Environmental Protection, a hearing was held and
evidence was received. On February 21, 2002, the Board
voted to reverse the Department's approval.

The Petitioners appealed the decision of the Board to
the Superior Court, which affirmed the denial of the permit
following a thorough analysis. See Uliano v. Me. Bd. of
Envtl. Prot., ELLSC-AP-2002-00007 (Me. Super. Ct., Han.
Cty., Feb. 18, 2003) (Mead, J.). On further appeal to the
Law Court, the judgment of the Superior Court was vacated
and the matter was remanded to the Board. Uliano v. Me.
Bd. of Envtl. Prot., 2005 ME 88, ~25, 876 A.2d 16, 22.

In 2007, the Board again issued a decision denying the
application, which decision is the subject of this appeal.

1
Needless to say, this matter has been thoroughly and
thoughtfully litigated to this point."

Although the Superior Court acts as an intermediate
appellate court with regard to this 80C appeal, and on
appeal the Law Court will look directly at the Board's
decision, it is hopefully helpful to review the most recent
decision in the context of issues raised on appeal by the
Petitioner. Uliano, 2005 ME 88, ~ 6, 87 A.2d at 18

Standard of Review

As noted by the parties, on review by the Superior
Court, it may affirm, reverse, or remand the administrative
decision for further proceedings. 5 M.R.S. § 11007(4)
(2008). The statute sets forth specific conditions and
situations where reversal or modification is appropriate. 5
M.R.S. § 11007(4)(C) (2008).

Discussion

Petitioner argues several points.

1. That the Board's conclusion that a practicable
alternative exists is not supported by substantial
evidence on the record;
2. That the Board failed to apply the practicable
alternatives standard to its Section 480-0(1) analysis;
3. That the- Board abused its discretion and acted
arbitrarily and capriciously in construing Section 480­
0(1) as applying to a specific geographic area;
4. That the Board lacked substantial evidence to support its
finding that the proposed pier would adversely affect
existing scenic and aesthetic uses;
5. That the Board erred in applying chapter 310 § 5(0) to
its analysis of whether the project would unreasonably
interfere with scenic and aesthetic uses;
6. That the scenic and aesthetic uses standard in the
Natural Resources Protection Act is unconstitutionally
vague;
7. That the Board's decision denies Petitioner the common
law right to wharf-out to the navigable portion of the
water.

As a starting point, one needs to review the Board's
decision on remand, dated February 7, 2007. (Record 133).
It is clear that the Board's 'findings' are done in a

• subsequently in 2007, a Motion to Intervene was filed and granted.

2
narrative format that does not make for meaningful
appellate review in accordance with the direction of the
Law Court in its 2005 review of this matter. See Uliano,
2005 ME 88, " 23-23, 876 A.2d at 21-22. While the
qualifications for Board membership do not require a law
degree, clearly there is staff to provide that needed
assistance. Here, that assistance was lacking to create
organized findings that would assist in meaningful
appellate review.

The Board has elected to frame its conclusions within
the confines of the Natural Resource Protection Act
("NRPA") section 480-D known as "Standard". 38 M.R.S. §
480-D (2008). In that context, the Board has concluded
that the only "Standard" Petitioner has not complied with
was number one, which provides:

1. Existing uses. The activity will not
unreasonably interfere with existing scenic,
aesthetic, recreational or navigational uses.

38 M.R.S. 480-D(1) (2008). The question the Petitioner
raises is whether this conclusion was lawfully reached. To
answer this question, the Court needs to explore the points
raised by the Petitioner, each in turn.

1. That the Board's conclusion that a practicable
alternative exists is not supported by
substantial evidence on the record

In the earlier 80-C review, Justice Mead analyzed in
the context of judicial precedent the meaning of the phrase
'substantial evidence on the record'. He observed
beginning at page 11 of his decision as follows.

Courts afford an agency's factual findings great
deference and will uphold those findings if they
are supported by "competent and substantial
evidence." Hopkins v. Department of Human
Services, 2002 ME 129, , 8, 802 A.2d 999. Those
seeking to overturn an agency decision must show
not only evidence to support their position but
the lack of substantial credible evidence in the
record to support the agency's decision. Green
v. Commissioner of Department of Mental Health,
Mental Retardation and Substance Abuse Services,
2001 ME 86, , 12, 776 A.2d 612. Inconsistent
evidence will not render an agency decision

3
unsupported by substantial evidence. Seider v.
Board of Examiners of Psychologists, 2000 ME 206,
~ 9, 762 A.2d 551.

Uliano, ELLSC-AP-2002-00007, at 11-12.

Reference to page 8 of the intervenors' pre-filed
testimony would, in this Court's view, represent
substantial evidence to support the Board's finding
regarding practicable alternatives. (Record 105). Similar
testimony is found in the testimony of Ms. Opdyke, Mr.
Dunton, and Mr. Boyer among others offered at the March 2,
2006, hearing in terms of meeting the substantial evidence
of practicable alternative test.

2. That the Board failed to apply its practicable
alternatives standard to its Section 480-D(1)
analysis.

This is an example of how the Board's drafting style
makes it very difficult to evaluate the Board's compliance
with the Law Court's directive that the practicable
alternatives to the proposed project should be balanced or
integrated as 'a factor' as opposed to a dispositive factor
in the Section 480-D(1) analysis.

It must be noted that the presence or absence of a
"practicable alternative" is a factor found in the Wetland
Protection Rules. 2 C.M.R; 06 096 '310~4 -§ 5(A)~ It i~ not
found in the Standards identified in Section 480-D. As the
Law Court noted in Uliano, the Wetland Rules were enacted
to be sure that the Standards were met. Uliano, 2005 ME 8,
~ 11, 876 A.2d at 19. Adherence to the Rules are one
factor to be considered to determine whether the Section
480-D criteria are met. Id. ~ 12, 876 A.2d at 19.

In its decision on remand, the Board has addressed the
Wetland Rules at Section 2 of its decision. (Record 133 at
2). In that Section the Board specifically indicated that
a part of "assessing whether the impact of the proposed
project on the existing scenic and aesthetic uses"
involves consideration of the practicable alternatives to
the project. (Record 133 at 3). The Court finds that the
Board did follow the Law Court's directive to apply the
Wetland Rules as factors in evaluating compliance with the
Rules to the Section 480-D(1) standards. (Record 133 at
8). While acknowledgment of compliance with the directive
from the Law Court might have been organized and phrased

4
differently, the Court is satisfied that the Board has
complied with the directive of the Law Court on this point.

3. That the Board abused its discretion and acted
arbitrarily and capriciously in construing 480­
D(l) as applying to a specific geographic area.

In determining what is arbitrary and capricious, case
law indicates that an agency's action is arbitrary and
capricious if it is a uwilful and unreasoning action,
without consideration of facts or circumstances." Help-U­
Sell, Inc. v. Me. Real Estate Comm'n, 611 A.2d 981, 984
(Me. 1992) (quoting Cent. Me. Power Co. v. Waterville Urban
Rental Auth., 281 A.2d 233, 242 (Me. 1971)). The record
shows that the Board conducted three hearings and a site­
visit and also reviewed the record before it and the
Department as well as the parties' submissions before
rendering a decision. It is clear from the decision on
remand that the Board applied the criteria in the NRPA and
the Rules, as they expand on the NRPA standards, in order
to reach its decision.

Petitioner seems to be arguing that the geographical
area which is relevant was inappropriately selected by the
agency charged by the Legislature to protect Uresources of
state significance. 38 M.R.S. § 480-A (2008). In the case
cited by Petitioner in its argument on this point, Kroeger
v. Dep't of Envtl. Prot., 2005 ME 50, ~ 16, 870 A2d 566,
571, the Law Court fairly clearly acknowledged a deference
to the Board in interpreting and applying its regulations
and determining the geographical area to which they will be
applied. On the record as a whole, this Court cannot say
that the Board acted arbitrarily or capriously in applying
the Rules and Statute in this case.

4. That the Board lacked substantial evidence to
support its finding that the proposed pier would
adversely affect existing scenic and aesthetic
uses.

The Law Court, in its remand, encouraged the Board to
provide facts which would permit meaningful appellate
review with regard to the conclusion that the project would
unreasonably interfere with existing scenic and aesthetic
uses. In its decision on remand, the Board expanded its
findings beyond its initial decision. (Record 133 at 6-8).
It is true, that the format selected by the Board does not
easily allow a correlation between the 'findings' and the

5
record support. Nonetheless, a reference to the March 2006
hearing transcript alone makes it clear to this Court that
the record contains substantial evidence at this point of
the impact of this project as affecting existing scenic and
aesthetic uses. (Record 113).

5. That the Board erred in applying chapter 310 §
5(D) to its analysis of whether the project would
unreasonably interfere with scenic and aesthetic
uses.

Petitioner argues that the Board's reference to
Chapter 310 § 5(0) of the Wetland Protection Rules was
error because it had no bearing on the Ulianos'
application. In our discussion of Petitioner's point two,
this Court reflected its understanding of the direction
from the Law Court that the Board was to consider the Rules
as factors confirming and supporting the application of the
Standards found in Section 480-0. Petitioner seems to
misconstrue the function of the Wetland Rules. They are
not criteria for granting an application, neither stand­
alone criteria nor in conjunction with other Rules. They
are factors, as the Law Court has made clear, to be
considered in evaluating the compliance of the Petitioner
with the Standards found at Section 480-0. This Court
agrees with Petitioner that the Rules are not stand-alone
criteria. The Court finds from the Board's decision on
remand that the Board did not treat them as criteria, but
as factors to be appropriately considered. The Court finds
that the Board did not err in applying the Wetland Rules as
part of the underpinnings for its final decision.

6. That the scenic and aesthetic uses standard in
the Natural Resources Protection Act is
unconstitutionally vague.

As Petitioner notes in his argument, this argument was
made previously to the Superior Court in Uliano v. Me. Bd.
of Envtl. Prot., ELLSC-AP-2002-00007. While this issue may
still be viable due to the lack of a final decision in the
appeal of the Superior Court's last decision, followed by
its remand back to the Board, this Court is satisfied that
the analysis of this issue was appropriately done by
Justice Mead and adopts his reasoning on this issue. For
ease of reference, it is restated below:

The Petitioners are challenging the
Constitutionality of the NRPA's uscenic and

6
esthetic use" standard and the Rules "cumulative
impact" and "practicable alternative" standards.
There is a strong presumption of
Constitutionality and the Petitioners bear the
burden of proving the legislation
unconstitutional. Town of Baldwin v. Carter,
2002 ME 52, , 9, 794 A.2d 62. The Court must
avoid finding a statute unconstitutional if a
reasonable constitutional interpretation is
available. The Petitioners are further
challenging the standards contained in the Rules
claiming they exceed the Board's rule-making
authority. There is a presumption of regularity
and courts assume an agency acted with full
knowledge of the material facts in justification
of their action. Driscoll v. Gheewalla, 441 A.2d
1023, 1029-30 (Me. 1982).

Scenic and Aesthetic Uses

The Petitioners argue that the NRPA's "scenic and
aesthetic use" standard is unconstitutionally
vague. The Petitioners first allege that the
legislature's delegation of authority to the
Department is not well defined, specific or clear
and therefore constitutes an unlawful delegation
of authority. The absence of clear standards and
guidelines grants an agency impermissible
discretion that allows an agency to engage in
legislative type opinion making. Wakelin v. Town
of Yarmouth, 523 A.2d 575, 577 (Me. 1987). In
determining the constitutionality of a
legislative delegation of authority, the court
reviews the entire relevant legislative scheme to
determine if the legislature provided the agency
with sufficient standards to guide their
decision-making. Ogunquit Sewer Dist. v. Town of
Ogunquit, 1997 ME 33, , 16, 691 A.2d 654. The
legislature accomplishes this goal when they
clearly reveal the purpose of the regulations,
define what an agency can regulate and suggest
degrees of regulation. Northeast Occupational
Exchange Inc. v. State, 540 A.2d 1115, 1116 (Me.
1998).

The Court in Kosalka v. Town of Georgetown, 2000
ME 106, , 17, 752 A.2d 183, found a condition
requiring all developments to "conserve natural

7
beauty" an "unmeasurable quality, totally lacking
in cognizable, quantitative standards" that
amounted to an unconstitutional delegation of
authority. The Court in Wakelin struck down an
"existing use" ordinance because of the lack of
specific standards that limited the town zoning
board's discretion.

The cases the Petitioners rely on involved
municipalities delegating authority to local town
boards. Courts have specifically recognized the
substantial difference in delegations like those
present in Kolsaka and Wakelin and delegations
from the legislature to state agencies bound by
statute. Lewis v. State Department of Human
Services, 433 A.2d 743, 749 (Me. 1981). The
legislature reveals the NRPA's purpose in its
"Findings; purpose" section, defines what conduct
the Department and the Board may regulate in
furtherance of the NRPA's stated purpose,
suggests levels of regulation, authorizes the
Board to enact rules in furtherance of the NRPA,
limits the Board's authority in its authorizing
statute, requires the Board to enact rules
pursuant to the APA, and provides for judicial
review of the Board's decisions. The legislative
scheme contains sufficient safeguards to "protect
against an abuse of discretion by [the Board] and
compensates substantially for 'the want of precise
guidelines [in the NRPA itself] and may be
properly considered in resolving the
constitutionality of the [legislative] delegation
of power. Northeast Occupational Exchange, Inc.
v. State of Maine, 540 A.2d 1115, 1117 (Me. 1988)
(quoting, Lewis, 433 A.2d at 749). It is not in
the legislature's interest to include precise
standards in statutes that deal with technical
and scientific matters, and the additional
procedural safeguards present in legislative
delegations of authority make up for the lack of
precise standards. Hannum v. Maine Board of
Environmental Protection, No. AP-01-3, 2002 Me.
Super. LEXIS 205, *9, (November 12, 2002) (citing
Lewis, 433 A.2d at 748).

Further, viewing the Statute on its face, the
"scenic and aesthetic use" standard would not
cause an ordinary citizen to guess at its

8
meaning. Concepts of due process require laws
provide notice of what conduct the state will
sanction. Town of Baldwin, 2002 ME at ~ 10. The
Court in Kolsaka struck down an ordinance
requiring all developments to "conserve natural
beauty." The Court found that the condition was
"an unmeasurable quality, totally lacking in
cognizable, quantitative standards." rrhe Law
Court in Steward v. Town of Sedgwick, 2000 ME 81,
~ 12, stated that if an agency were to use the
general purpose of conserving visual access, open
space, and natural beauty as a separate standard
it would likely be unconstitutionally vague. 1
However, the NRPA's "scenic and aesthetic use"
standard is not unmeasurable, nor does it lack in
cognizable quantitative standards.

38 M.R.S.A. 480-0 provides:

The Board of Environmental Protection
shall grant a permit upon proper
application and upon such terms as it
deems necessary to fulfill the purposes
of this article [the NRPA]. The board
shall grant a permit when it finds that
the applicant has demonstrated that the
proposed activity meets the following
standards.

2. Existing uses. The activity will not
unreasonably interfere with existing
scenic, aesthetic, recreational or
navigational uses.

The provision contains "unreasonable" and
"existing" as qualifiers of "scenic and aesthetic
uses". Due process does not require objective
quantification, mathematical certainty, or
absolute precision in legislative language. Town
of Baldwin at ~ 9. "Reasonable" is a well­
defined concept under the common law. Id. at ~
13 (citing Tri-State Rubbish, Inc. v. Town of New
Gloucester, 634 A.2d 1284, 1287 (Me. 1993)). If
the Court can fairly ascertain the meaning of a

1 The Court notes that these cases also dealt with unconstitutional
delegations of power from municipalities to town boards, not
delegations from the legislature to state agencies bound by statute and
the procedural safeguards of the APA.

9
statute by referencing common law and judicial
determinations the ordinance is not void for
vagueness. Id. (citing State v. Davenport, 326
A.2d 1, 6 (Me. 1974)). uUnreasonable" and
uexisting" are familiar words and the NRPA
sufficiently conveys what conduct the legislature
intended to forbid. Id. at , 15. uThere are
limitations in the English language with respect
to being both specific and manageably brief," and
the NRPA contains terms that the uordinary person
exercising ordinary common sense can sufficiently
understand and comply with." Maine Real Estate
Commission v. Kelby, 360 A.2d 528, 531, (Me.
1976) (finding standards such as ubad faith" and
udishonest" not unduly vague) (quoting in an
analogous context United States Civil Service
Commission v. National Association of Letter
Carriers, 413 u.s. 548, 578-79 (1973), 93 S.Ct.
2880,2987.)

Uliano, ELLSC-AP-2002-00007, at 5-9 (footnote in original).

This analysis is still valid, and particularly so
because of the last point above. If one focuses on the
scenic and aesthetic terms in the context of the last
point, what is clear is that those terms can be understood
by the 'ordinary person exercising ordinary common sense'
in order to be complied with. This Court does not find
that the statute challenged by Petitioner is
unconstitutional for the reasons stated.

7. That the Board's decision denies Petitioner
they common law right to wharf-out to the
navigable portion of the water.

Clearly a riparian owner's rights to get out to the
water are limited and subject to reasonable regulation.
Great Cove Boat Club v. Bureau of Pub. Lands, 672 A.2d 91,
95 (Me. 1996). The common law right to get to the water is
dependent on that reasonable regulation and does not void
or make inoperative the impact of the Natural Resources
Protection Act. The Court finds that the Board's decision
in this matter appropriately intrudes on the Petitioner's
right to wharf-out.

For all of the reasons stated above, this Court
affirms the Board's decision on remand and denies
Petitioner's appeal.

10
Dated: October 24, 2008

RECEIVED & FILED

OCT 28 2008
HANCUCK COUNTY
COURTS

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809040. Public record. Not legal advice.