Fichter v. Board of Environmental Protection

• Decision Date: 26 February 1992
• Citation: 604 A.2d 433
• Parties: James FICHTER et al. v. BOARD OF ENVIRONMENTAL PROTECTION.
• Court: Maine Supreme Court

Page 433

604 A.2d 433

James FICHTER et al. v. BOARD OF ENVIRONMENTAL PROTECTION.

Supreme Judicial Court of Maine.

Argued Jan. 24, 1992.

Decided Feb. 26, 1992.

Lewis Seiler (orally), Cincinnati, Ohio, Timothy Vogel, Vogel & Toole, Portland, for plaintiffs.

Dennis Harnish, Asst. Atty. Gen. (orally), Augusta, for defendant.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.

McKUSICK, Chief Justice.

In this Rule 80C proceeding, the Superior Court (York County, Fritzsche, J.) reviewed the denial by the Board of Environmental Protection (BEP) of the application of James and Nancy Fichter for a permit to build a house on their oceanfront lot on Horseshoe Cove in Biddeford. Ruling that the BEP was bound by constitution and statute to give the Fichters an opportunity to cross-examine adverse witnesses and to present rebuttal evidence, the court vacated the BEP's denial of the Fichters' application and remanded the matter to the BEP for a full adjudicatory hearing. The BEP appeals that ruling and the Fichters cross-appeal, contending that the BEP's denial of their permit application was in any event unsupported by substantial evidence. The Fichters also have filed a motion to dismiss the BEP's appeal on the grounds that the BEP's filing within the prescribed appeal period of only a facsimile copy of its notice of appeal failed to make the appeal timely, and further that the BEP's appeal is interlocutory and barred by the final judgment rule. Rejecting both of the grounds of the Fichters' motion to dismiss, we rule that the procedures followed by the BEP in deciding the Fichters' application did not violate any of their constitutional or statutory rights. Thus, we vacate the judgment of the Superior Court. Because the evidence of record before the BEP amply supported its denial of the Fichters' application, we remand for entry of a judgment affirming the BEP's decision.

The Fichters' vacant lot adjacent to Horseshoe Cove in Biddeford lies along a narrow sand dune between a salt marsh and the ocean. In March 1988 the Fichters filed with the Department of Environmental Protection an application for a permit to construct a residence on their lot. The staff of both the Department and the Maine Geological Survey determined that the Fichters' house would be located on a "frontal sand dune." That term is defined by the Department's Coastal Sand Dune Rules, ch. 355, § 1(O) as "the area consisting of the most seaward ridge of sand and includes former frontal dune areas modified by development." Those rules prohibit the building of new structures "on or seaward of a frontal dune," id. at § 3(B)(2)(a)(ii), and accordingly the Fichters applied to the Department for a variance. The Fichters are entitled to the requested variance only if they show by clear and convincing evidence, inter alia, that "even if the proposed variance is granted, all other provisions of [the Coastal Sand Dune Rules] and all statutory criteria set forth in 38 M.R.S.A. § 472(2) ¹ will be met." Id. at § 4(I)(2). On October 23, 1989, on the ground that the Fichters had failed to satisfy two of the criteria set forth in the statute, the Department denied their application for a variance, saying:

The proposed activity will unreasonably cause the flooding of the alteration area in that future storm wave overwash will result in damage to the building.

The proposed activity will unreasonably interfere with the natural supply and movement of sand within the sand dune system and will unreasonably increase the erosion hazard to the sand dune system, in that the project is located on the frontal dune which is a storage area of sand for the overall sand dune system. This sand will be redistributed during future storm activity. Construction of a house at this site will restrict this supply and movement of sand.

The Fichters appealed the Department's adverse decision to the BEP. Following its usual practice in such matters, the BEP considered the Fichters' appeal during its regularly scheduled biweekly meeting held on February 14, 1990. At the meeting the Fichters and the Department presented their evidence in turn. The BEP members questioned the witnesses, but neither of the parties was permitted to cross-examine the other's witnesses. At the conclusion of the meeting, the BEP affirmed the Department's denial of the permit.

On the Fichters' request, the BEP reconsidered the Fichters' appeal at its regularly scheduled meeting held on June 27, 1990. Although the Fichters in their request for reconsideration expressly asked to be allowed to cross-examine adverse witnesses, the BEP did not allow them to do so. The BEP did, however, let them rebut any evidence the Department had presented at the February 14 meeting. At the meeting's conclusion, the BEP again affirmed the Department's denial of the Fichters' application for a sand dune permit. In the Rule 80C proceeding that ensued, the Superior Court on September 18, 1991, remanded the Fichters' case to the BEP for a full adjudicatory hearing with rights of cross-examination and rebuttal.

I. Adequacy of the Fax Copy of the BEP's Notice of Appeal

The period for the BEP to appeal the Superior Court judgment expired on Friday, October 18, 1991--30 days after entry of that judgment. See M.R.Civ.P. 73(a). The BEP did not file in the Superior Court clerk's office in York County its notice of appeal, signed by the Assistant Attorney General representing the BEP, until Monday, October 21, 1991--three days after expiration of the appeal period. The BEP nonetheless argues that it filed its notice of appeal in time because on Friday, October 18, a non-lawyer from the Department's Portland office hand-delivered to the York County clerk's office a copy of the BEP's original notice of appeal that had been transmitted to him from Augusta by facsimile machine (fax).

The fax copy of the BEP's notice of appeal does not satisfy the requirements of the rules. M.R.Civ.P. 73(b) states that: "The notice of appeal is a pleading for purpose of Rule 11." M.R.Civ.P. 11 in turn states that: "Every pleading and motion of a party represented by an attorney shall be signed by at least one attorney of record...." The fax copy of the BEP's notice of appeal that was hand-delivered is no better than a fax copy transmitted by fax directly from Augusta to the clerk's office. Because a fax copy does not bear the required original signature of an attorney of record, the existing rules do not authorize the filing of a notice of appeal, or any other pleading, by fax.

What then is the consequence here of the fact that the only filing the BEP made within the time limits of Rule 73(a) was a fax filing? Our answer must take into account the present circumstances that the validity of fax filings is a question of first impression in Maine, that on its merits the BEP's appeal raises an issue of considerable public importance in the administration and operations of a busy state agency, and that no one has been misled or prejudiced in the slightest by the BEP's faxed notice of appeal. M.R.Civ.P. 1 instructs us to construe the Rules of Civil Procedure "to secure the just ... determination of every action." That instruction is best followed by not applying our freshly announced decision to the fax filing in this appeal. Here, for the purposes of this appeal only, we will treat the fax copy filed on Friday, October 18, 1991, as the equivalent of an original signed notice of appeal. We deny the Fichters' motion to dismiss the BEP's appeal. We emphasize, however, that the same dispensation will not be accorded pleadings filed by fax after this date. Hereafter we will not accept the fax filing of a notice of appeal or any other pleading, until such time as the Supreme Judicial Court, with the assistance of its advisory rules committees, has had an opportunity to consider fully the problems incident to the use of fax in the courts and in the exercise of its rulemaking power has expressly authorized that use subject to appropriate safeguards.

II. Final Judgment Rule

Although this appeal is clearly interlocutory, ² it presents a set of circumstances that we have at least twice before recognized to justify our making an exception to the final judgment rule. In Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74 (Me.1980), we fashioned a pragmatic exception to the final judgment rule for a temporary restraining order issued by the Superior Court that interfered "with apparently legitimate executive department activity" and disrupted the "administrative process." Id. at 77. In Harding v. Commissioner of Marine Resources, 510 A.2d 533 (Me.1986), we extended the pragmatic exception fashioned in Alexander to a Superior Court order that vacated an aquaculture lease because that order interfered with legitimate administrative procedure and because the issue might otherwise escape appellate review.

That same situation exists here. First, the BEP takes its present appeal from an interlocutory ruling of the Superior Court that has the potential of interfering severely with the administrative procedures of that agency. The expense and delay involved in providing a permit applicant a full-blown adversarial hearing with cross-examination and rebuttal are substantial. That expense and delay alone amount to a disruption of the administrative process, even if the court's ruling is extended no further than the case at bar, and of course it cannot be so limited. Furthermore, it is unlikely that the BEP can ever obtain appellate review of the Superior Court's procedural ruling if we do not entertain its appeal now. If after the hearing with full cross-examination and rebuttal the BEP grants the Fichters a sand dune permit, the BEP is not an aggrieved party entitled to appeal its own order. On the other hand, if after the full hearing the BEP again denies the Fichters' application, any challenge to the Superior Court's ruling that the BEP might try...