Gulick v. Board of Environmental Protection

• Decision Date: 03 December 1982
• Citation: 452 A.2d 1202
• Parties: Claire GULICK et al. 1 v. BOARD OF ENVIRONMENTAL PROTECTION.
• Court: Maine Supreme Court

Page 1202

452 A.2d 1202

Claire GULICK et al. ¹ v. BOARD OF ENVIRONMENTAL PROTECTION.

Supreme Judicial Court of Maine.

Argued Nov. 5, 1982.

Decided Dec. 3, 1982.

Murray, Plumb & Murray, E. Stephen Murray (orally), Ellyn C. Ballou, Portland, for plaintiff.

Kay R.H. Evans (orally), Asst. Atty. Gen., for Board of Environmental Protection.

Drummond, Woodsum, Plimpton & MacMahon, P.A., John A. Graustein (orally), Ronald N. Ward, Portland, for Hannaford Bros. Co.

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

McKUSICK, Chief Justice.

On a petition for review of agency action brought by Gulick and others, the Superior Court (Cumberland County) affirmed orders of the Board of Environmental Protection ("the Board") that approved the application of Hannaford Bros. Co. ("Hannaford") to construct a shopping center in the Back Cove area of the city of Portland. On appeal, plaintiffs contend, as they did in the Superior Court, that the Board's decision was not supported by substantial evidence on the whole record. A careful review of the administrative record in this case has convinced us that the Board's action was in fact justified by the evidence before it, and we affirm the judgment of the Superior Court.

Under the terms of the Site Location of Development Law, 38 M.R.S.A. §§ 481-490 (1978 & Supp.1982-83), the Board of Environmental Protection may not approve a development proposal unless it finds, among other things, that "the developer has made adequate provision for traffic movement of all types out of or into the development area." 38 M.R.S.A. § 484(2). This appeal focuses solely upon the adequacy of Hannaford's traffic plans.

I. Procedural History

On April 2, 1981, Hannaford applied to the Board for approval of a shopping center proposed to be built on land bordered by Forest Avenue to the west, Baxter Boulevard to the north, Preble Street Extension to the east, and route I-295 to the south. After receiving documentary evidence in the form of maps, plans, and traffic studies, and after holding a public hearing for the receipt of oral testimony on June 12, 1981, the Board issued a written order on October 28, 1981, approving Hannaford's application. The order contained a finding, pursuant to section 484(2), that the applicant had "made adequate provision for traffic movement of all types out of or into the development area." In support of that finding, the Board made the following underlying or subordinate findings of fact:

3. The three access points to the proposed center are from Preble Street Extension, Baxter Boulevard and Forest Avenue. The Forest Avenue access is right turn in and right turn out only. The Preble Street Extension access is both left and right turn in and out. The Baxter Boulevard access is both left and right turn in and out with trucks prohibited.

....

Sight distances at the access points are: Preble Street to the north 720 plus feet; Preble Street to the south 720 plus feet; Baxter Boulevard to the northeast 420 plus feet; Baxter Boulevard to the southwest 420 plus feet; Forest Avenue to the south 620 plus feet.[ ²

The Board's approval was explicitly conditioned upon "sight distances as noted in Finding # 3 [being] maintained at all access points."

On December 14, 1981, Gulick and others filed a petition for administrative reconsideration pursuant to 38 M.R.S.A. § 344(5). The petitioners objected to the Board's traffic findings and requested the Board either to reverse its October 28 approval of the project or to "reopen" the matter and require Hannaford to fund an independent traffic study by an outside consultant. Attached to the petition for reconsideration as an exhibit was a nine-page letter from William M. Altenburg, Jr., a registered landscape architect. That Altenburg letter, which was based on a review of the plans and testimony submitted to the Board before and at its June 12 hearing, concluded, among other things, that the actual sight distances at the center's planned entrance/exits were substantially shorter than the Board had found them to be, and that those actual sight distances were unsafe.

In response to the petition for reconsideration, Hannaford submitted a brief to the Board, and attached to that brief, along with other exhibits, a fifteen-page letter from Robert L. Ballew, a registered professional engineer. That Ballew letter, which took issue with the methods and conclusions of the Altenburg letter, especially its sight distance conclusions, provided further support for the Board's finding that Hannaford had planned adequately for traffic movement in and out of its proposed shopping center. The Ballew letter was based both on data already on file with Ballew's engineering firm, Hunter-Ballew Associates, which had been collected for the preparation of an earlier report submitted to the Board in support of Hannaford's initial application ("the Hunter-Ballew report"), and on "new data" presumably collected for the specific purpose of refuting the conclusions of the Altenburg letter.

On January 13, 1982, with all parties present, the Board voted to reconsider its decision of October 28, 1981, but to limit the reconsideration to the issues of actual and required sight distances and other traffic problems. Following the Board's vote to reconsider, counsel for the petitioners, that is, Gulick and the others opposing the Hannaford development, argued their case to the Board, referring now and then to the Altenburg letter; and a Hannaford representative delivered a counterargument, relying in part on the Ballew letter. At the conclusion of the arguments, the Board voted to "affirm" its previous approval of the Hannaford project subject to certain additional conditions. The Board's written findings of fact and order, also dated January 13, 1982, summarized the contents of both the Altenburg and the Ballew letters and specifically noted, "The petitioners have offered new or additional evidence on traffic considerations." The Board then went on, however, to make the following finding: "Site [sic] distances as proposed by the applicant on plans entitled 'Back Cove Plaza, Preble Street, Portland, Maine, Grading Plan dated April 2, 1981,' are adequate for safe traffic movement." The Board also found that "[e]xisting roadways are capable of assimilating traffic generated by the project provided improvements as noted in section IX of the Hunter-Ballew report dated November, 1980, are completed prior to operation of the project." ³ On the basis of those findings of fact, the Board concluded once again that "the applicant has made adequate provisions for traffic movement of all types into or out of the development area" and affirmed its order of October 28, 1981, subject to the additional requirement that the improvements as recommended in the original Hunter-Ballew report be carried out before the shopping center opens for business. The present appellants challenge the adequacy of the administrative record to support the Board's order of October 28, 1981, as modified and affirmed by its order of January 13, 1982.

II. Extent of the Record

Appellants, contending that the Board's orders were not supported by substantial evidence on the whole record, argue as a preliminary matter that the only evidence in the record, and thus that the only evidence to which a reviewing court can look for support of the Board's conclusions, is the evidence presented during or before the Board's hearing of June 13, 1981. In other words, they claim that the Ballew letter, presented to the Board during the reconsideration process, may not be relied upon as "evidence" in support of the Board's ultimate decision. We disagree.

The record upon which the Board may legitimately base a decision is not ordinarily confined to testimony or exhibits formally admitted at a full-scale trial-type hearing. 38 M.R.S.A. § 344(5), which governs the reconsideration process, states that upon receipt of a petition for reconsideration the Board may "grant the petition in full or in part, order a public hearing or dismiss the petition," thus indicating that the petition may be granted or dismissed without any "live" evidentiary hearing. If the Board elects to proceed without such a hearing, it may nonetheless base its decision on information submitted along with the petition and made a part of the record in that manner. Cf. In re Belgrade Shores, Inc., 371 A.2d 413, 416 (Me.1977) (where Board held no hearing before approving Belgrade's site permit application, appellate court must look to information submitted with Belgrade's application "and reasonable inferences drawn therefrom" when reviewing Board decision to determine whether it was based upon substantial evidence on the whole record). By the same token, the Board is free to consider documentary evidence, such as the Ballew letter, submitted in response to the petition for reconsideration.

Furthermore, petitioners at no time in connection with their petition for reconsideration requested a trial-type hearing at which the new documentary evidence already presented by themselves and by Hannaford could be formally introduced through live witnesses and at which those witnesses could be subjected to cross-examination. On the contrary, the petitioners participated before the Board in the reconsideration proceeding in which all parties, as well as the Board, apparently took as a given the fact that both the Altenburg and the Ballew letters had already been added to the record to be considered by the Board. They now are in no position to argue that the Board could not depend upon the Ballew letter to support its order of January 13, 1982, as they themselves rely heavily on the Altenburg letter--which, like the Ballew letter, was submitted to the Board after its decision of October 28, 1981, and was never cross-examined ⁴--to support their claim that the Board's second order was not supported by substantial evidence on the whole...