# Tenants Harbor Gen. Store v. Maine Dep't of Envtl. Protection > Superior Court of Maine · December 16, 2009 URL: https://www.frixlaw.com/law-library/cases/10809255 ## Case - **Court:** Superior Court of Maine - **Decided:** December 16, 2009 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Donald H. Marden - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment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/10809255 ## Opinion text STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CIVIL ACTION DOCKET NO. AP-98-13 V t-\ M -- KEN - 1;)1 /{p/;/0(i1 TENANTS HARBOR GENERAL STORE, LLC, Petitioner v. ORDER MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent Before the court is Tenants Harbor General Store's petition for judicial review of final agency action pursuant to 5 M.R.S.A. § 11001 and M. R. Civ. P. 80C. This action is for review of a letter-decision by the Maine Deparbnent of Environmental Protection (DEP) that the petitioner would have to seek a variance to install underground fuel storage tanks as set forth in 38 M.R.S § 563-C. The property at issue is a general store that sells gasoline. It is undisputed that the gasoline storage tanks do not comply with 38 M.R.S. § 563-C, commonly referred to as the Siting Law, because they are within 1000 feet of a public water supply and within 300 feet of a private water supply. However, section 563-C is not retroactive, and only applies to tanks that were registered or installed after September 30,2001. Because the tanks were in existence prior to the effective date of the statute, they were exempted from the requiremen t. On February 16, 2007, Paul Volle entered into a contract to purchase Tenants Harbor from its owner, Joanne Kroll. Volle's decision was based largely on the fact that the location sold gasoline, and would therefore be a profitable acquisition considering that he also owned a general store in a neighboring town. On June 5,2007, the property was conveyed to Tenants Harbor General Store, LLC. 1 Following the signing of the contract, but prior to the conveyance of the property, leakage was discovered on the inner wall of the storage tanks. For this reason, the use of the tanks ceased and the tanks were removed on May 16, 2007. Kroll filled out a form that is required to remove underground oil storage tanks. It was her understanding that if the tanks were replaced within twelve months; the tanks would continue to be exempt from the Siting Law. She did not intend to waive the rights as the property owner to have them replaced. Volle then investigated the DEP rules for replacing underground oil storage facilities. His understanding of the rules was that the store would be grandfathered for twelve months pending the replacement of the tanks. To confirm this belief, he contacted the DEP? Volle then negotiated a new price for the store, reducing the price to reflect the cost of completing the replacement of the tanks. After purchasing the store, Volle received approval by the Planning Board to replace the tanks and applied to the DEP to permit replacement. The DEP took the position that the tanks had been abandoned and that Volle's application was for a new installation, not a replacement. The Commissioner then sent Volle a letter-decision dated May 13, 2008, that stated his 1 Volle having assigned his rights to the LLC. 2 The substance of this phone call appears to be in dispute, and is relevant to petitioner's equitable estoppel argument. Petitioner claims that John Dunlap, a DEP employee, told Volle that he had a twelve-month window to replace the tanks and maintain his exempt status. The court heard live testimony on this issue at a hearing on March 27, 2009. Respondent introduced testimony of Mr. Dunlap, reflecting that Dunlap has no recollection of such a conversation occurring. 2 application was in violation of 38 M.R.S. § 563-C and he would need to seek a variance to proceed. On June 13, 2008, petitioner filed its petition for review? When a judicial review of a administrative agency's decision is pursued pursuant to M.R. Civ. P. 80C, the court reviews the agency's decision directly for abuse of discretion, errors of law, or findings not supported by the evidence. Centamore v. Dep't of Human Servs., 664 A.2d 369, 370 (Me. 1995). "The administrative agency's interpretation of a statute administered by it, while not conclusive or binding on this court, will be given great deference and should be upheld unless the statute plainly compels a contrary result." Thacker v. Konover, 2003 ME 30, .~,~ h-'f,,;;.."""""'<...=3 J -J·,,JI~ ,,,.~ '.,.~1 .,\\:..).1.'~~''d ,,,,/. qLDj co