King Resources Co. v. Environmental Imp. Commission

• Citation: 270 A.2d 863
• Parties: KING RESOURCES COMPANY v. ENVIRONMENTAL IMPROVEMENT COMMISSION et al.
• Decision Date: 19 November 1970
• Court: Supreme Judicial Court of Maine (US)

Page 863

270 A.2d 863

2 ERC 1031

KING RESOURCES COMPANY v. ENVIRONMENTAL IMPROVEMENT COMMISSION et al.

Supreme Judicial Court of Maine.

Nov. 19, 1970.

Robert D. Schwarz, Frederick A. Johnson, Portland, Albert L. Bernier, Waterville, for plaintiff.

John M. R. Paterson, E. Stephen Murray, Asst. Attys. Gen., Augusta, for defendant Environmental Improvement Comm.

Harold C. Pachios, Edward T. Richardson, Jr., Portland, amicus curiae.

Before DUFRESNE, C. J., and WEBBER, MARDEN, WEATHERBEE and POMEROY, JJ.

DUFRESNE, Chief Justice.

The plaintiff corporation, King Resources Company, on February 3, 1969 purchased from the General Services Administration for the sum of $203,000 the real estate complex located on Long Island in Casco Bay, with all the facilities existing thereon and known in the area as the United States Naval Fuel Annex. The property had been offered for bid to the general public and the land and facilities were fully described in the advertisement. Plaintiff's purchase was for the purpose of operating a commercial oil terminal after certain renovations, modifications and additions had been made.

The land area consisted of 181 acres with 15 underground bomb-proof fuel storage tanks having a total capacity of 26,188,000 gallons (or 623,523 barrels); these tanks were connected to underground transfer pipelines and to an existing pier. In addition thereto, there were 2 generator plants of steel and concrete construction, a fresh water tank of 450,000 gallon capacity, several buildings such as a water tank building, a motor generator house, a boat repair shop, a maintenance building, an administration building, an office building, a clarifier house, a garage, a fire station, a complete fresh water system connected to the Portland city water supply system with underground water line from Great Diamond Island, fire hydrants and pumping stations, roads and ways, steam heat lines, electrical lines and poles, and 6,400 feet of security fencing. The pier was about 600 feet long with 3 lines for fuel oil transfer.

In the year 1969 shortly after the purchase of the naval fuel annex Plaintiff bought a contiguous parcel of approximately 175 acres of Long Island land zoned R-3 under the zoning ordinance of the City of Portland. Long Island is within the territorial jurisdiction of Portland. Later in September, 1969 Plaintiff purchased the former Fort McKinley located on adjacent Great Diamond Island for an amount in excess of $200,000 as a protection of Plaintiff's investment on Long Island.

The tax assessors of the City of Portland for tax purposes placed a value of $477,000 on Plaintiff's Long Island property, assuming that as of April 1, 1969 the Plaintiff could not use the facilities as an oil terminal storage depot until the zoning ordinance of the City of Portland was amended from Residential-3 to Industrial-3. The zone change was legally made. It became effective June 16, 1969. Under the Industrial-3 zone, the operation of an oil terminal and storage facility is permitted.

Repairs were made amounting to some $157,500. Cleaning the storage tanks cost another $117,000. Equipment necessary for the operation of the facility was bought aggregating in price nearly $60,000; this equipment included a cabin cruiser and trucks among other things. Water surveys accounted for another disbursement of some $98,000. Legal fees connected with the project exacted another $90,000. All these expenses were incurred prior to January 1, 1970, the cut-off date which the Legislature adopted when it amended 38 M.R.S.A., chapter 3, subchapter 1, article 6, by adding section 488 which reads as follows:

' § 488. Applicability

This subchapter shall not apply to any development in existence or in possession of applicable state or local licenses to operate or under construction on January 1, 1970 or to any development the construction and operation of which has been specifically authorized by the Legislature prior to the effective date hereof, or to public service corporation transmission lines.' (Emphasis ours.) P.L.1969, c. 571 (Special Session,-1970.)

The Site Location of Development law (chapter 571-P.L.1969), together with chapter 572-the Coastal Conveyance of Petroleum law, otherwise known as the Oil Discharge Prevention and Pollution Control law-were enacted at the same special session and became effective on May 9, 1970.

In its renovation program, Plaintiff contemplated removal of the existing pier for the construction of a new modern steel and concrete dock at the site of the old one. During February or March, 1970 the old pier was dismantled except for 160 feet thereof. At the public hearing held on April 16, 1970 before the Army Corps of Engineers on Plaintiff's application for permission to construct the new dock, the Environmental Improvement Commission, hereinafter termed the Commission, filed a letter of protest requesting that the granting of the permit be deferred 'until the Environmental Improvement Commission has had the opportunity to review the company's plans, issue necessary waste discharge licenses and certify to the Corps of Engineers that this development will not adversely affect the water quality of Casco Bay.' No permit appears to have been issued following this hearing and the Commission's protest.

Prior to the effective date of the Site Location law, the issue of the Plaintiff's exemption from the Act was the topic of discussion between Plaintiff's counsel and the Commission. Members of the Attorney General's staff were being consulted. When Plaintiff's counsel complained to Commission Chairman Koons that the Plaintiff was suffering substantial losses daily due to the long delay of the Commission in taking a position, Mr. Koons suggested, and this is stipulated, 'that the fastest way to expedite the situation was for the Plaintiff to file a qualified request for determination, reserving its rights to determine its status under the Site Location of Development Law at a later date.' This suggestion was adopted by Plaintiff's counsel and the record bears out that all applications filed by the Plaintiff with the Commission were made subject to this reservation of rights.

On May 15, 1970, while Plaintiff's qualified application was pending, the Commission 'determined as a matter of policy' that the Plaintiff was subject to the Site Location of Development law. This determination was made without notice and without any opportunity given the Plaintiff at a hearing for that purpose to present evidence. Plaintiff then participated on May 22, 1970, under protest and reservation of rights, at a hearing before the Commission on Plaintiff's qualified application for license. On July 2, 1970 the Commission denied the license.

Section 487 of the Site Location of Development law provides for judicial review of Commission action, as follows:

'Any person, with respect to whose development the commission has issued an order after hearing pursuant to section 484 may within 30 days after notice of such order, appeal therefrom to the Supreme Judicial Court. Notice of such appeal shall be given by the appellant to the commission. The proceedings shall not be de novo. Review shall be limited to the record of the hearing before and the order of the commission. The court shall decide whether the commission acted regularly and within the scope of its authority, and whether the order is supported by substantial evidence, and on the basis of such decision may enter judgment affirming or nullifying such determination.' (Emphasis added.)

Preplexed by the language of this statute which directs the appeal from a Commission order to be made to the 'Supreme Judicial Court,' Plaintiff has brought 5 complaints for declaratory judgment, one each in the Superior Courts of Cumberland and Kennebec Counties, one each in the Supreme Judicial Courts of Cumberland and Kennebec Counties and one in the Supreme Judicial Court sitting as the Law Court. Plaintiff also filed seasonably in the same courts 5 separate appeals from the decision of the Commission. All five complaints for declaratory judgment were consolidated upon motion in the Superior Court in and for the County of Cumberland for hearing before the Supreme Judicial Court sitting as the Law Court. They are here on report. The appeals remain pending and are not before us.

The Defendant Commission raises the threshold issue of jurisdiction. Was it within the power of the Superior Court of Cumberland County to entertain Plaintiff's complaint for declaratory judgment and report the same to this Court for decision?

The powers of the Environmental Improvement Commission are wholly statutory. If it exceeds its authority the Commission acts without jurisdiction and its orders are of no effect and are subject to collateral attack. See, Stoddard v. Public Utilities Commission, 1941, 137 Me. 320, 19 A.2d 427. Our Court indicated in Stoddard that if the question of jurisdiction is open to the parties on appeal such procedure must be followed to the exclusion of any other.

Ordinarily, where a statute confers new rights and provides a special remedy or fully regulates the procedures for relief, then we must assume the Legislature intended the same to be exclusive and not cumulative. Nash v. Inhabitants of Sorrento, 1919, 118 Me. 224, 107 A. 32; Jameson v. Cunningham, 1936, 134 Me. 134, 183 A. 131. We continue to subscribe to this rule.

Furthermore, in Stanton v. Trustees of St. Joseph's College, 1967, Me., 233 A.2d 718, we indicated that where a statute provides a remedy before an administrative agency, not only is the remedy exclusive but the plaintiff must exhaust that remedy before he can turn to the courts for relief. In accepting the doctrine of exhaustion of administrative remedies as a general principle, we recognized, however, that special circumstances may require a relaxation of the rule.

We are satisfied that such special circumstances exist in the instant case. In the...