Secure Environments, Inc. v. Town of Norridgewock

SCOLNIK, Justice,

dissenting.

I respectfully dissent.

I conclude that this case is governed by our decisions in Wakelin v. Town of Yarmouth, 523 A.2d 575 (Me.1987) and Cope v. Inhabitants of the Town of Brunswick, 464 A.2d 223 (Me.1983), and not by the earlier cases of In re Maine Clean Fuels, Inc., 310 A.2d 736 (Me.1973), and In re Spring Valley Development, 300 A.2d 736 (Me.1973), on which the court so heavily relies. I therefore further conclude that the challenged provisions of the Norridge-wock Ordinance constitute an impermissi-bly vague delegation of a town’s legislative authority to the Board of Selectmen.

Wakelin and Cope , which the court does not confront in depth, more specifically dealt with the issue now before us, namely the validity of a municipal ordinance in the face of a standardless delegation challenge. In Wakelin , decided only last year, we found the particular standards set forth in a municipal ordinance as a guide to the zoning board of appeals (“ZBA”) to be im-permissibly vague. The ordinance in question allowed a special exception provided the ZBA determined, inter alia, that:

The proposed use will be compatible with existing uses in the neighborhood, with respect to physical size, visual impact, intensity of use, proximity to other structures and density of development.

We concluded that the terms “intensity of use” and “density of development” were not sufficiently specific standards to guide either an applicant for a special exception or the ZBA. We stated that an applicant for an exception must receive an answer to the question, “ ‘What facts must I present to gain the Board’s approval?’ ” Wakelin, 523 A.2d at 577 . An appropriate answer to this question was characterized in Wakelin as consisting of “quantitative standards” that would transform the vague, “unmeasured” language in the ordinance into “specific criteria objectively useable by both the Board and the applicant.” Id.

In Cope , a zoning ordinance empowered the local ZBA to grant special exceptions if an applicant proved, inter alia, that a proposed use would not “adversely affect the *327 health, safety or general welfare of the public” and would not “alter the essential characteristics of the surrounding property.” We found these standards to be fatally imprecise, as they permitted “broad legislative judgment to be delegated to the [ZBA].” Cope, 464 A.2d at 227 .

Our holdings in both cases were premised on the principle that legislative power

may not be delegated from the legislature to the municipality or from the municipality to a local administrative body without a sufficiently detailed statement of policy to: “furnish a guide which will enable those to whom the law is to be applied to reasonably determine their rights thereunder, and so that the determination of those rights will not be left to the purely arbitrary discretion of the administrator.”

Cope, 464 A.2d at 225 , (quoting Stucki v. Plavin, 291 A.2d 508, 510 (Me.1972)). This principle is derived from constitutional requirements of equal protection and due process. See Wakelin, 523 A.2d at 577 (equal protection); Superintending School Committee of the City of Bangor v. Bangor Educational Association, 433 A.2d 383 , 386 n. 4 (Me.1981) (due process). 1

Applying the analysis we employed in Wakelin and Cope to the present case, the conclusion is inescapable that the Norridge-wock Ordinance constitutes an impermissi-bly vague delegation of the Town’s legislative authority to the Board of Selectmen. As drawn, the Ordinance’s standards applied by the Board in this case do not advise with sufficient clarity “[w]hat facts must [be presented] to gain the Board’s approval?” Wakelin, 523 A.2d at 577 . Moreover, such a lack of specific standards permits the Board to go beyond its proper quasi-judicial function.

Although the court adverts to Wakelin and Cope in its opinion, its treatment of these cases is rather incomplete. No meaningful distinction is detectable between the ordinance language we struck down in Wakelin and the language at issue in this case. Both ordinances share the absence of the quantitative standards required to channel and limit the decision-making authority of municipal boards. The court’s opinion, however, does not distinguish Wakelin from, or harmonize it with, the present case.

Moreover, the court is unable to distinguish the present case from Cope . There is no basis for the court’s position that the Cope court intended to consider only the phrase “affect the health, safety or general welfare of the public,” and not the entire standard challenged as impermissibly vague in that case, namely, “adversely affect the health, safety or general welfare of the public.” The court cannot point to any functional difference between the ordinance language we found deficient in Cope , and the requirement here that a proposed landfill not “adversely” affect surface or ground water. In sum, without the unjustifiable exclusion of the word “adversely” from the standard at issue in Cope , the striking similarities between the ordinance language in Wakelin and Cope and the language that is at issue here requires that we apply the principles of those more recent cases to the present ease.

The court suggests that the Ordinance, read in its entirety, provides the Board and applicants with the quantitative standards required by Wakelin and Cope . However, I fail to discern any meaningful clarification of terms when the phrase “ground water and surrounding surface waters will not be adversely affected” is reconstituted elsewhere in the Ordinance as prohibiting “pollution of ... water resources,” “adverse impacts upon private wells,” or “sediment pollution or siltation of any ground or surface water.” These standards, collectively or individually, fail to apprise an *328 applicant of what the Board will consider to be “pollution” or a landfill “adversely affecting” water supplies. Likewise, the vague Ordinance requirement that a landfill site be “controlled to prevent accident and harm” does not derive any definitional substance from its reappearance in the Ordinance as a mandate that the Board consider the “manner and frequency ... and the routes by which the material will be transported” or as a requirement that a landfill be developed in a way that prevents “unreasonable burdens being placed upon the town roads and traffic conditions.” Finally, the court concludes that the purpose of the Ordinance narrows the meaning of the requirement that a developer have “adequate technical and financial capacity” to construct a landfill. However, the stated purpose of the Ordinance 2 is even more open-ended than the phrase that the purpose is supposed to explicate.

The court’s opinion states that the challenged provisions in the Ordinance should be upheld, based on our opinions in Maine Clean Fuels and Spring Valley. Both cases involved challenges to the constitutionality of the Site Location Law (“SLL”) in effect at that time, 38 M.R.S.A. §§ 481-488. The SLL set forth criteria to be used by the state’s Environmental Improvement Commission (“EIC”) in reviewing development proposals. These standards were similar to those at issue here, and were challenged on vagueness grounds. In both cases, we found the SLL criteria to be “adequate guides” to control the EIC’s enforcement power. Maine Clean Fuels, 310 A.2d at 742 ; Spring Valley, 300 A.2d at 752 .

Notwithstanding Maine Clean Fuels and Spring Valley, Wakelin and Cope emphasize the need for municipalities to exercise responsibly their delegations of legislative authority to municipal committees by ensuring that adequate standards are established to guide decision making. 3 I would employ this approach here and not ignore the teachings of these two recent cases. There is a growing body of state and federal regulations and standards governing landfills. 4 The evolving standards and lit *329 erature in this field represent an increasingly sophisticated approach to landfill regulation that renders the promulgation of specific standards for landfills more feasible than ever before. Considering the current practicability of creating quantitative criteria for landfills, along with the dangers of potential favoritism and arbitrariness associated with unduly vague delegations of legislative authority, it is reasonable to expect the Town to meet minimal due process and equal protection requirements by unequivocally placing applicants on notice of what they will be required to do in order to obtain Town approval of a landfill application.

Applying the teachings of Wakelin and Cope to this case, I would vacate the judgment of the Superior Court on the ground that the provisions of this Ordinance constitute an impermissibly vague delegation of the Town’s legislative authority to the Board of Selectmen.

. Although Wakelin and Cope were zoning cases, the prohibition against unduly vague delegations of legislative authority is not confined to zoning cases. We have examined the issue of impermissibly vague standards in a variety of contexts. See e.g., Board of Dental Examiners v. Brown, 448 A.2d 881, 884 (Me.1982) (standards for revocation of dentists’ licenses); Lewis v. State Department of Human Services, 433 A.2d 743, 746-49 (Me.1981) (state plumbing code); Superintending School Committee, 433 A.2d at 386-88 (arbitration board); State v. Boyajian, 344 A.2d 410, 412-13 (Me.1975) (pharmaceutical regulations).

. The express purpose of the Ordinance reads, in full, as follows:

Section 2. Purpose. The purpose of this Ordinance is to protect the public health and property values of the citizens of the Town of Norridgewock by controlling the disposal of all discarded matter in such a manner as to prevent: a) the pollution of air, land, or water resources of the town; b) littering and unsightliness on the way to and around disposal areas; b) [sic] adverse impacts upon private wells; d) erosion; and e) unreasonable burdens being placed upon the town roads and traffic conditions.

. The court states that the constitutional sufficiency of the guidelines is more central to this case than whether the Town should have provided the applicants with more specific standards. The court’s distinction is irrelevant, however, since our determination of whether the guidelines pass constitutional muster turns on whether they were sufficiently specific. The court attempts to buttress its argument by stating in a footnote that effective regulation "in some instances ‘requires a flexibility and attention to changing technology which are incompatible with more detailed standards.’” At 323 n. 4 (quoting Lewis, 433 A.2d at 749 ). The court fails to mention that when more detailed standards are not compatible with a changing technology, "the presence of adequate procedural safeguards to protect against an abuse of discretion by those to whom the [legislative] power is delegated compensates substantially for the want of precise guidelines and may be properly considered in resolving the constitutionality of the delegation of power.” Lewis, 433 A.2d at 749 , (quoting State v. Boynton, 379 A.2d 994, 995 (Me.1977)). See also Northeast Occupational Exchange, Inc. v. State, 540 A.2d 1115, 1117 (Me.1988). Surely the provision of a public hearing — a hearing which, the record reflects, was more a public forum for aggrieved citizens than a due process hearing — is an adequate procedural safeguard to protect the rights of applicants. Without either adequate procedural safeguards or precise guidelines to guide decision making, an applicant for a landfill permit is at the mercy of the Norridgewock Board’s unconstrained discretion. This is exactly the outcome that the prohibition against standardless delegation was intended to prevent, and it should not be abided in the instant case.

.For example, the State’s Department of Environmental Protection has promulgated extensive regulations pertaining to landfill development. Among these regulations is a precise, objective definition of what constitutes a "contaminant." State of Maine, Department of Environmental Protection: Solid Waste Management Rules, ch. 400 § 11(F) (1983 and 1987 revision). For other examples of specific, quantitative standards that can be used in landfill regulation, one can look to the following publications *329 from the United States Environmental Protection Agency: Lining of Waste Impoundment and Disposal Facilities (1983); Evaluating Cover Sys-terns for Solid and Hazardous Wastes (1980); Hydrologic Simulation of Solid Waste Disposal Sites (1980).