Seven Islands Land Co. v. Maine Land Use Regulation Com'n

• Decision Date: 17 September 1982
• Citation: 450 A.2d 475
• Parties: SEVEN ISLANDS LAND COMPANY v. MAINE LAND USE REGULATION COMMISSION 1 .
• Court: Maine Supreme Court

Page 475

450 A.2d 475

SEVEN ISLANDS LAND COMPANY v. MAINE LAND USE REGULATION COMMISSION ¹.

Supreme Judicial Court of Maine.

Argued Sept. 10, 1982.

Decided Sept. 17, 1982.

Eaton, Peabody, Bradford & Veague, Bernard J. Kubetz (orally), Daniel G. McKay, Bangor, for plaintiff.

James E. Tierney, Atty. Gen., Paul Stern, Asst. Atty. Gen. (orally), Augusta, for defendant.

Before McKUSICK, C. J., and GODFREY, ROBERTS, CARTER, NICHOLS and WATHEN, JJ.

PER CURIAM.

Plaintiff Seven Islands Land Company ("Seven Islands") brought this suit in the Superior Court (Kennebec County) to review the action of defendant Maine Land Use Regulation Commission ("LURC") in granting to it only a restricted permit for timber harvesting on certain woodlands located in an unorganized township in central Aroostook County. The Superior Court affirmed the LURC decision, rejecting Seven Islands' arguments (i) that the administrative decision was not supported by substantial evidence of record, (ii) that the continuous and long-term use of the lands at issue as a commercial forest constituted a preexisting nonconforming use that the controlling statute, 12 M.R.S.A. § 685-A(5) (1981), grandfathered out of regulation by LURC, and (iii) that the restrictions imposed by LURC upon the timber harvesting permit violated both the due process clauses and the taking clauses of the Maine and United States Constitutions. On appeal the Law Court rejects the same arguments repeated here by Seven Islands and affirms the Superior Court's judgment.

Pursuant to legislation first enacted in 1969 and substantially revised in 1971, LURC has authority for land use regulation in unorganized and deorganized portions of the state, including Township 13, Range 5 W.E.L.S. ("T. 13, R. 5"). 12 M.R.S.A. §§ 683-89 (1981). Acting under a legislative directive, id. § 685-A(6), LURC zoned certain land in that township, known as the Burpee Brook deer yard, as an Interim P-4 Protection Subdistrict. The effect of that zoning, which was designed to protect the deer wintering habitat, was to foreclose timber harvesting within that district except with a permit issued by LURC pursuant to 12 M.R.S.A. § 685-B (1981).

In October, 1979, Seven Islands, a land management company, filed on behalf of its principals, the land owners, ² an application for a LURC permit to harvest timber on 662 acres of land situated in the Burpee Brook protection subdistrict. ³ LURC held extensive public hearings at which it received over 500 pages of testimony (with some 70 exhibits) from representatives of the applicant Seven Islands and of the Department of Inland Fisheries and Wildlife ("the Department"), as well as from several LURC-employed consultants, expert in the fields of forestry, wildlife management, and entomology. On June 18, 1980, LURC issued to Seven Islands its Forestry Operations Permit 390 ("FOP 390"), a complex 17-page document that both sets forth the limitations imposed upon the cutting permit and explains the reasons for LURC's imposing those limitations. The 662 acres covered by FOP 390 are broken into eight areas and numerous subareas, and the extent of cutting permitted in each is adjusted depending upon the extent of dead and dying fir and the specifically focused need as found by LURC in each area or subarea for maintaining winter cover for deer. In the aggregate, LURC authorizes unrestricted timber harvesting on 112 acres and cutting on another 432 acres of all fir that is dead or likely to die within two years. Harvesting on the remaining 118 acres is prohibited. However, in all areas where FOP 390 restricts or prohibits harvesting, Seven Islands may remove trees that have a high risk of blowdown or that are determined, after consultation with a representative of the Department, to be not contributing to winter deer shelter. Furthermore, Seven Islands in the future may apply for additional cutting "necessary to avoid substantial loss of economic value" from further deterioration of tree condition. In conclusion, LURC found:

The permitted harvesting prescribed [in FOP 390] provides for the conservation at this time of a reasonable amount of remaining deer wintering habitat in this area, while also enabling the landowner to make reasonable economic use of his property.

Displeased with the restrictions placed by LURC upon its timber harvesting within the 662 acres involved in its permit application, Seven Islands sought judicial review in the Superior Court pursuant to 12 M.R.S.A. § 689 (1981) and 5 M.R.S.A. §§ 11001-08 (1979 & Supp.1981). The Superior Court affirmed the administrative decision and Seven Islands has appealed to this court. Independently reviewing the action of LURC, we also find no reversible error in the restricted permit granted Seven Islands for timber harvesting in the Burpee Brook deer yard.

I. Substantial Evidence

Seven Islands contends that LURC's decision is not based upon substantial evidence, requiring reversal pursuant to 5 M.R.S.A. § 11007(4)(C)(5) (1979). ⁴

In applying the "substantial evidence" standard of review to an agency action, the reviewing court must examine the entire record "to determine whether on the basis of all the testimony and exhibits before the agency it could fairly and reasonably find the facts as it did." In re Maine Clean Fuels, Inc., Me., 310 A.2d 736, 741 (1973). The fact that the record contains inconsistent evidence or that inconsistent conclusions could be drawn from the record does not prevent the agency's findings from being sustained if there is substantial evidence to support them. Id. This court will not substitute its judgment for LURC's where there may be a reasonable difference of opinion. Id.; see also 4 R. Anderson, American Law of Zoning 25-26 (2d ed. 1977). The burden of proof clearly rests with the party seeking to overturn the decision of an administrative agency. See Central Maine Power Co. v. Waterville Urban Renewal Authority, Me., 281 A.2d 233 (1971).

Seven Islands does not allege that the record lacks any evidence to support the agency's decision. Rather, the claim is merely that LURC rejected Seven Islands' evidence where its data was inconsistent with that of the Department and that the Department's data was not reliable.

This argument fails for two reasons. First, Seven Islands has pointed to no specific inconsistency between the two sets of data. As LURC found, the Department data was simply more detailed and specific than that of Seven Islands. ⁵

Second, even if the inconsistencies alleged did in fact exist, Seven Islands' challenge of the LURC decision would fail because, as a matter of law, inconsistent evidence alone does not preclude a finding of substantial evidence, In re Maine Clean Fuels, Inc., supra at 741, and an examination of the record reveals evidence sufficient to support the decision. ⁶

II. Nonconforming Use

Seven Islands claims a right to unrestricted timber harvesting on the property in question, as a nonconforming use under 12 M.R.S.A. § 685-A(5) (1981). ⁷

The Superior Court rejected this claim, holding 1) that Seven Islands' interpretation of the statute was "inconsistent with LURC's establishment and zoning of Protection Districts" and 2) that "this grandfathering provision is limited to actual use of particular property at the time of enactment of the LURC [standards] rather than potential uses ...." We agree.

This "grandfather" clause must be read in the context of the entire statutory scheme. The court interprets a statute in light of its evident purpose so that all of its provisions are read in harmony and are effectuated. Dobbs v. Maine School Administrative District No. 50, Me., 419 A.2d 1024, 1028 (1980); Labbe v. Nissen Corp., Me., 404 A.2d 564, 567 (1979).

The land use regulation law directs that the unorganized territory be zoned into protection, management, or development districts representing the appropriate uses of the respective areas. 12 M.R.S.A. § 685-A(1). Protection districts are defined as

[a]reas where development would jeopardize significant natural, recreational and historic resources, including, but not limited to, flood plains, precipitous slopes, wildlife habitat and other areas critical to the ecology of the region or State.

(Emphasis added) 12 M.R.S.A. § 685-A(1)(A). Development is defined as

any land use activity or activities directed toward using, reusing or rehabilitating air space, land, water, or other natural resources ....

(Emphasis added) 12 M.R.S.A. § 682(7) (1981). Clearly, timber harvesting falls within the definition of development.

The definition of protection districts may be contrasted with that of management districts, which are defined as

[a]reas which are appropriate for commercial forest product or agricultural uses and for which plans for additional development are not presently formulated nor additional development anticipated.

(Emphasis added) 12 M.R.S.A. § 685-A(1)(B). Further, 12 M.R.S.A. § 685-A(5) provides: "land use standards adopted pursuant to this chapter for management districts shall in no way limit the right, method or manner of cutting or removing timber or crops ...." ⁸ (Emphasis added)

Taken together, these provisions evince a clear legislative plan to set aside protection districts where timber harvesting may be regulated or prohibited altogether, and management districts where such harvesting may not be restricted. ⁹

Seven Islands argues that the mere fact that a standing forest exists and is being maintained by its owners for later commercial harvesting means that the land is "devoted" to timber harvesting and therefore a nonconforming use under section 685-A(5). Seven Islands reasons that timber harvesting should be given special consideration under the statute because trees are similar to a farm crop that is cared for and is harvested only at maturity. This argument wholly ignores the legislative scheme. To adopt the construction that Seven Islands urges upon the court would be to...