Forest Ecology Network v. Land Use Regulation Comm'n

Decision Date15 March 2012
Docket NumberDocket No. BCD–11–210.
PartiesFOREST ECOLOGY NETWORK et al. v. LAND USE REGULATION COMMISSION et al.
CourtMaine Supreme Court

OPINION TEXT STARTS HERE

William J. Schneider, Attorney General, and Gerald D. Reid, Asst. Atty. Gen. (orally), Office of Attorney General, Augusta, for appellant Land Use Regulation Commission.

Scott D. Anderson, Esq. (orally), and Jeffrey T. Selser, Esq., Verrill Dana, LLP, Portland, for appellants Plum Creek Maine Timberlands, LLC, and Plum Creek Land Company.

Richard A. Spencer, Esq., and David M. Kallin, Esq., Drummond Woodsum, Portland, for appellant Forest Society of Maine.Philip F.W. Ahrens, Esq., and Nicholas D. Livesay, Esq., Pierce Atwood LLP, Portland, for appellant The Nature Conservancy.Philip Worden, Esq. (orally), Worden Law Office, Northeast Harbor, and Lynne Williams, Esq., Bar Harbor, for cross-appellants Forest Ecology Network and RESTORE: The North Woods.Russell B. Pierce, Jr., Esq. (orally), David A. Goldman, Esq., and Darya I. Haag, Esq., Norman, Hanson & DeTroy, LLC, Portland, for cross-appellant Natural Resources Council of Maine.

Panel: SAUFLEY, C.J., and LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

LEVY, J.

[¶ 1] The Land Use Regulation Commission (LURC), and Plum Creek Maine Timberlands, LLC, and Plum Creek Land Company (collectively, Plum Creek) appeal from a judgment entered in the Business and Consumer Docket ( Humphrey, C.J.) vacating LURC's approval of a rezoning petition and concept plan submitted by Plum Creek for land it owns in the Moosehead Lake region. LURC and Plum Creek contend that the court erred by concluding that LURC violated its procedural rules by failing to hold an additional evidentiary hearing on amendments to Plum Creek's petition. Forest Ecology Network and RESTORE: The North Woods (collectively, Forest Ecology Network) and the Natural Resources Council of Maine (NRCM) cross-appeal, arguing primarily that LURC erred in approving the petition because several aspects of the concept plan conflict with statutory requirements. Forest Ecology Network and NRCM also contend that the appeal should be dismissed because it is not taken from a final judgment. The Nature Conservancy and Forest Society of Maine intervened before the Business and Consumer Docket in support of LURC and Plum Creek, and remain parties on appeal.

[¶ 2] We conclude that LURC did not violate its procedural rules and did not otherwise err by approving the rezoning petition and concept plan. Therefore, we vacate the judgment and remand for the entry of a judgment affirming LURC's decision.

I. BACKGROUND
A. Administrative Process

[¶ 3] This matter concerns LURC's consideration and eventual approval of a zoning petition originally submitted by Plum Creek in April 2005. The petition proposed the implementation of a thirty-year lake concept plan, developed by Plum Creek, that would redistrict approximately 400,000 acres of Plum Creek's land in the Moosehead Lake region to a Resource Plan Protection Subdistrict. Lake concept plans are created by landowners and serve to clarify long-range landowner intent for both development and conservation of a large portion of shoreland on a lake or group of lakes. Me. Land Use Regulation Comm'n, Dep't of Conservation, Comprehensive Land Use Plan app. C, at C–7 (Mar. 27, 1997) [hereinafter Comprehensive Land Use Plan].1 The plans address, generally, where development is to be focused and how significant natural and recreational resources will be protected. Id. LURC's adoption of a Resource Plan Protection Subdistrict is the mechanism that enables implementation of a concept plan. Id. at C–8.

[¶ 4] The property in question is located in twenty-six different minor civil divisions in Somerset and Piscataquis Counties. It encompasses an area that surrounds almost all of Moosehead Lake. As LURC noted in its decision, Plum Creek's proposal is “unprecedented in its scale and complexity, and in the level of interest in and attention to the proposal by members of the public, organized interest groups, and governmental review agencies.”

[¶ 5] LURC is a seven-member citizen commission whose members are appointed by the Governor. 12 M.R.S. § 683 (2011). LURC acts as the planning and zoning board for the unorganized and deorganized areas of the State, which encompass more than ten million acres. 12 M.R.S. §§ 681, 683 (2011); Comprehensive Land Use Plan at 1. As a planning and zoning body, LURC has the authority to adopt and amend land use district boundaries and standards, and issue development permits. 12 M.R.S. §§ 685–A, 685–B (2011). LURC reviews the amendment or adoption of use district boundaries pursuant to criteria established in 12 M.R.S. § 685–A(8–A).2 LURC is supported by a professional staff of land use planners and others who are employees of the Maine Department of Conservation. Comprehensive Land Use Plan at 3–4.

[¶ 6] The concept plan proposed in Plum Creek's petition included conservation, recreation, forest management, and residential and commercial development elements. Throughout the resulting four-year administrative process, which involved hundreds of witnesses and exhibits, public debate was dominated by the tension between the region's two perceived needs—conservation and development. In response to public and agency feedback, Plum Creek amended its petition and associated concept plan three times: in April 2006, April 2007, and October 2007. The first two amendments superseded and replaced the petition that preceded them, and the October 2007 amendment supplemented and amended the April 2007 petition.

[¶ 7] In December 2007 and January 2008, LURC held four weeks of what it described in its subsequent written decision as “adjudicatory hearings,” in which each of the twenty-one parties who had submitted pre-filed testimony and a number of state agencies participated. At these evidentiary hearings, the parties presented opening statements and cross-examined, redirected, and re-crossed nearly 200 witnesses based on the witnesses' pre-filed written testimony. In addition, LURC held four days of public hearings at which more than 450 individuals testified under oath.

[¶ 8] The hearings concluded on January 25, 2008. Before the close of the final hearing day, counsel for LURC proposed to the commissioners three procedural options for the post-hearing process: (1) proceed directly to an “up or down” vote on the petition, (2) allow Plum Creek to amend the petition further by revising the concept plan, or (3) direct LURC staff and its consultants to develop and propose amendments to the concept plan to meet the regulatory requirements. All of the commissioners present expressed a preference for the third option. LURC then invited the parties to comment in writing on the proposed post-hearing process by January 30, 2008. A number of parties, including both Forest Ecology Network and NRCM, filed comments in response to this request.

[¶ 9] Over the course of the next eighteen months, the record remained open and the parties were invited to submit comments at nearly every stage of the post-hearing process. In particular, the parties submitted post-hearing briefs and reply briefs, comments on a draft list of core issues for LURC to address during deliberations, comments on documents that were produced after these deliberations and that described whether and how LURC would amend each core element of the concept plan to satisfy statutorily-mandated criteria, proposed implementing language for the LURC-generated amendments, and comments on the draft concept plan amendments proposed by LURC's staff. Members of the public were also invited to comment on the draft concept plan amendments, and many did. Plum Creek agreed in writing to accept the plan amendments proposed by LURC. LURC finally closed the administrative record on August 11, 2009.

[¶ 10] On September 23, 2009, LURC issued a 186–page written decision setting forth its findings of fact and conclusions of law, and approving Plum Creek's petition as amended, thereby rezoning 380,074 acres to a Resource Plan Protection Subdistrict. Forest Ecology Network and NRCM filed separate M.R. Civ. P. 80C appeals in the Superior Court seeking judicial review of LURC's decision.

B. Maine Rule of Civil Procedure 80C Appeal

[¶ 11] The Rule 80C appeals were consolidated and transferred to the Business and Consumer Docket. Forest Ecology Network filed, and NRCM joined in, a motion pursuant to Rule 80C(e) for the taking of additional evidence. 3 The motion sought to develop evidence as to whether Plum Creek had paid all or a portion of the expert witness expenses of the other intervening parties. Plum Creek, LURC, Forest Society of Maine, and The Nature Conservancy opposed the motion, and in May 2010, the court denied the motion.

[¶ 12] After briefing and arguments, the court issued a comprehensive decision, dated April 7, 2011, that rejected all of Forest Ecology Network and NRCM's claims of error, save one related to the process that LURC followed after the completion of the evidentiary hearing in January 2008. The court determined that although LURC had the authority to propose the amendment of Plum Creek's petition following Plum Creek's submission of its third amended petition, LURC could not do so without conducting an evidentiary hearing on what the court characterized as the fourth amended petition.” The court concluded: “Because LURC disregarded its Chapter 5 rules and engaged in an unauthorized, ad hoc procedure that prejudiced Petitioners' rights, the court must vacate the Decision of the Commission and remand for a public hearing on Plum Creek's fourth and final amended petition.”

C. Law Court Appeal

[¶ 13] Plum Creek, LURC, The Nature Conservancy, and Forest Society of Maine timely appealed the Rule 80C decision, and Forest Ecology Network and NRCM cross-appealed. Forest Ecology Network and NRCM then filed a joint motion to dismiss the...

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