Hall v. Board of Environmental Protection

• Decision Date: 04 September 1985
• Parties: Donald E. HALL et ux. v. BOARD OF ENVIRONMENTAL PROTECTION.
• Court: Maine Supreme Court

Page 260

498 A.2d 260

Donald E. HALL et ux. v. BOARD OF ENVIRONMENTAL PROTECTION.

Supreme Judicial Court of Maine.

Argued March 14, 1985.

Decided Sept. 4, 1985.

Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Daniel M. Snow (orally), John D. Delahanty, Portland, for plaintiff.

Gregory Sample (orally), Bd. of Environmental Protection, Augusta, Jeffrey A. Thaler, Nancy C. Anderson, Maine Audubon Soc., Falmouth, for amicus curiae defendant.

Before McKUSICK, C.J., and NICHOLS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.

NICHOLS, Justice.

The Plaintiffs, Donald Hall and Virginia Hall, appeal from a judgment entered by the Superior Court (Sagadahoc County) dismissing their M.R.Civ.P. 80C review of a decision of the Board of Environmental Protection. The Board had denied the Plaintiffs' after-the-fact application to construct a seasonal cottage in Phippsburg. Further, the Superior Court granted the Defendant's motion to dismiss the Plaintiffs' independent causes of action, Count VI alleging an unconstitutional taking of property and Count VII alleging estoppel. Finding error in such dismissal of Count VI, we sustain that portion only of their appeal.

The Plaintiffs, a New Hampshire couple, own two adjacent lots of real estate at Hunnewell Beach in Phippsburg. Until November, 1976, the Plaintiffs owned only one of these lots, upon which there was a cottage. The adjacent lot and a cottage situated on it had been owned by the Snyders, a Pennsylvania couple, who in November 1976, conveyed their lot to the Plaintiffs.

Because of continuous shoreline erosion, twenty dwellings were destroyed or removed from Hunnewell Beach between 1974 and 1977. During the fall and winter of 1976, both the Snyder cottage and the Plaintiffs' original cottage were substantially damaged by this erosion. Both cottages were dismantled and removed from the lots in 1977. Since that removal, a large ridge of sand has drifted onto the intertidal area, causing Hunnewell Beach to grow by accretion.

On August 3, 1982, the Plaintiffs obtained from the Town of Phippsburg a building permit and an internal plumbing permit to construct a cottage on the former Snyder lot. In their petition for review, the Plaintiffs alleged that prior to obtaining these permits, Plaintiff Donald Hall asked the Phippsburg code enforcement officer whether any state permit was required to rebuild the cottage, and that the code enforcement officer specifically responded that no state permit would be required.

Thereafter, between August, 1982 and mid-November, 1982, the Plaintiffs undertook and completed most of the construction of a 20' X 30' cottage set on 18 concrete posts, with an attached 8' X 18' porch set on 8 posts. The new cottage is located approximately 40 feet landward of the former Snyder cottage. At the time construction was discontinued for the winter, the cottage was substantially completed.

In December, 1982, the Plaintiffs received a letter from the Department of Environmental Protection informing them that it would be necessary to apply for a permit for construction under the "Sand Dune Law," 38 M.R.S.A. § 471 (Pamp.1984-1985). ¹ This letter was the first communication between the Department and the Halls with respect to their new cottage.

On December 30, 1982, Plaintiff Donald Hall filed an application for the required Sand Dune Permit. On April 1, 1983, the Plaintiffs filed a report prepared by Barry S. Timson, a Maine Certified Geologist, amending the application and describing its potential impacts on the beach and dune environment. The report amended the application in two respects: (1) by requesting authorization to construct an artificial dune directly in front of the cottage; and (2) by stipulating that the cottage and porch structure would be removed from the property if 50% or more of the structure were undermined by future erosion.

On April 27, 1983, the Defendant Board denied the Plaintiffs' amended application for a Sand Dune Permit. The Plaintiffs did not seek any administrative or judicial review of that decision.

On May 26, 1983, Plaintiff Donald Hall filed a new application with the Board, which differed from the earlier amended application in several respects:

a. The cottage would be reset on four (4) posts driven to a depth of 0' NGVD;

b. The cottage would be raised to sit on the posts at least 4 feet above the existing dune surface;

c. The area around and underneath the cottage would be planted with American beach grass; and

d. A temporary (seasonal) boardwalk would be installed for foot passage over the dunes from the cottage to the beach

As part of the new application, the Plaintiffs submitted a new report by Geologist Timson.

During June 1983, the Department staff processed the application by soliciting and gathering information about the proposed project, and comments upon it, from various sources. On the Plaintiffs' behalf, Mr. Timson responded to the comments of others, including by amending the application on June 14, 1983, an increase in the number of pilings upon which the cottage would be set from four (4) to twelve (12).

In preparation for the Board meeting scheduled for June 22, 1983, the Department staff prepared in handwritten form two alternative orders--one recommending conditional approval of the project and the other recommending denial of the permit. On June 15, 1983, the order recommending conditional approval was typed and mailed to all Board members, along with other materials relating to matters on the agenda for the meeting. The draft order recommending denial of the permit was not typed or presented to the Board. A copy of the order recommending conditional approval was also mailed to the Plaintiffs' attorney on June 15, together with notice that the staff would request that the application be tabled by the Board to enable receipt and review of further comments. At its meeting of June 22, 1983, the Board tabled the application until its next meeting on July 13, 1983.

On June 30, 1983, the Department staff prepared a new draft decision recommending denial of the application.

On July 6, 1983, by a letter from Geologist Timson, the Plaintiffs further amended their application. The amendment provided that the cottage would be constructed to be "resistant to a 100-year storm," using the services of a Portland engineering firm.

At its meeting on July 13, 1983, the Board of Environmental Protection heard testimony from agents of the Plaintiffs as well as others who had commented on the application. The proceedings were tape recorded and transcribed. After hearing these presentations, the Board adopted, with some modifications, the "Findings of Fact and Order" recommended by the staff, denying the Plaintiffs' application for a sand dune permit.

Pursuant to M.R.Civ.P. 80C, the Plaintiffs filed in the Superior Court a petition for review of the Board's decision. In the same complaint the Plaintiffs also set forth two independent claims for relief: (1) unconstitutional taking of property; and (2) estoppel. The Superior Court affirmed the Board's decision and granted the Defendant's motion to dismiss the two independent claims for relief. Thereupon the Plaintiffs appealed to this Court.

I.

At the outset the Plaintiffs argue that because their application met the requirements of Subsection 2.B.5 of the Department's Sand Dune Regulations, the Board erred as a matter of law in denying their application.

It is unclear from the Sand Dune Regulations themselves whether the Plaintiffs' cottage indeed qualifies as a "rebuilding" of a severely damaged building. Subsection 2.B.5 of the Sand Dune Regulations provides only that "[a] building is severely damaged when the damage exceeds 50% of the appraised value of the building;" the regulation then specifies the circumstances in which such a building can be rebuilt. The parties stipulated that both the Plaintiffs' original cottage and the Snyder cottage (which was located 40 feet seaward of the Plaintiffs' present cottage) were "substantially damaged." Moreover, the regulations do not expressly preclude a newly constructed cottage replacing a previously removed cottage from being classified as "rebuilt."

On the other hand, language in the record indicates that the Plaintiffs contemplated an entirely new venture. The Plaintiffs did not use the word "rebuild" in their applications. Similarly, the Board denied the Plaintiffs' application "to construct a ... dwelling." In addition, Subsection 2.B.5 provides that before one can rebuild a severely damaged building, the building must be "relocated as far outside the A-zone or V-zone as possible." (emphasis added). The subsection also specifies the consequences when a "building cannot be moved entirely out of the A and V flood zones." (emphasis supplied). Such language would suggest that "rebuilding" is construction work being done on a severely damaged original building.

However, we need not determine whether the Plaintiffs' cottage is a "new building" or the "rebuilding of a severely damaged building." Even if the Plaintiffs have met all of the requirements of Subsection 2.B.5, this subsection is not the exclusive criteria for the Board's decision on permits. A reading of the entire Sand Dune Regulations shows that Subsection 2.B.5 is to be read in conjunction with Subsection 2.A, which is entitled "All Projects." The subsection provides in pertinent part:

1. Projects shall have a minimal impact on the immediate site and on the sand dune system. Impacts which may reasonably be expected to occur during the following 100 years will be considered. In areas where substantial portions of the dune system remain unaltered, special attention will be paid to the cumulative impacts of activities on the dune system.

2. Projects shall not be permitted if, within 100 years, the project may reasonably be expected to be damaged as a result of changes in the shoreline.

3. Projects shall not cause a flood hazard to any...