Uliano v. Board of Environmental Protection

• Decision Date: 13 August 2009
• Docket Number: Docket: Han-08-643.
• Citation: 2009 ME 89,977 A.2d 400
• Parties: Anthony ULIANO et al. v. BOARD OF ENVIRONMENTAL PROTECTION.
• Court: Maine Supreme Court

977 A.2d 400

2009 ME 89

Anthony ULIANO et al. v. BOARD OF ENVIRONMENTAL PROTECTION.

Docket: Han-08-643.

Supreme Judicial Court of Maine.

Argued: May 19, 2009.

Decided: August 13, 2009.

Edmond J. Bearor, Esq., Timothy A. Pease, Esq. (orally), Rudman & Winchell, LLC, Bangor, ME, for Anthony and Erin Uliano.

Janet T. Mills, Atty. Gen., Margaret A. Bensinger, Asst. Atty. Gen. (orally), Christopher Taub, Asst. Atty. Gen., Augusta, ME, for Maine Board of Environmental Protection.

Phoebe B. Boyer, Salsbury Cove, ME, for Intervenors.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, and GORMAN, JJ.

Majority: SAUFLEY, C.J., and CLIFFORD, LEVY, and GORMAN, JJ.

Dissent: ALEXANDER, J.

LEVY, J.

[¶ 1] Anthony and Erin Uliano appeal from a judgment entered in the Superior Court (Hancock County, Cuddy, J.) affirming the Board of Environmental Protection's order denying their application for a permit to build a pier pursuant to the Natural Resources Protection Act, 38 M.R.S. §§ 480-A to 480-GG (2008).¹ The Ulianos raise numerous issues on appeal, including that the scenic and aesthetic uses standard in section 480-D(1) is unconstitutionally vague, that the Board erred in performing the practicable alternatives analysis required by section 5(A) of the Wetland Protection Rules, and that they have been deprived of their common law right to wharf out. We affirm the judgment.

I. CASE HISTORY

[¶ 2] This is the second time the Ulianos have appealed an order of the Board of Environmental Protection (Board) denying their application for a permit to build a pier. We vacated the Board's first order. See Uliano v. Bd. of Envtl. Prot. (Uliano I), 2005 ME 88, 876 A.2d 16.

[¶ 3] The Ulianos own waterfront property adjacent to Salsbury Cove on Eastern Bay in Bar Harbor with approximately 215 feet of shore frontage. The supra-tidal zone of the Ulianos' shoreline consists of a ledge outcropping approximately ten feet high, and the intertidal zone consists of gravel, cobble, boulder, and ledge. The shoreline at the eastern end of the Ulianos' property is not as steep as other portions of their shoreline, and an existing stairway at that location provides access to a sand, gravel, and cobblestone beach. On the east, the Ulianos abut the Sand Point Association Common Lot. On the west, the Ulianos abut property held by Rosecliff Cottages, LLC, a company owned and operated by the Ulianos.

[¶ 4] In February 2001, the Ulianos applied for a Natural Resources Protection Act (NRPA) permit to construct a 95' x 6' private, recreational pier with a 50' seasonal aluminum ramp and 16' x 20' wooden float. The height of the pier would be approximately seventeen feet at mean low water. The purpose of the pier is to provide access to a recreational boat and to permit swimming at all tides. The Ulianos' application generated significant public interest, resulting in a request that the Board assume jurisdiction over the application. The Board declined jurisdiction, and in August 2001 the staff of the Department of Environmental Protection (Department) approved the Ulianos' application.

[¶ 5] In September 2001, abutters to the Ulianos' property appealed the Department's order to the Board. The Board granted the appeal in February 2002, finding that the use of a dinghy in conjunction with a mooring was a practicable alternative to the proposed pier, that the cumulative impact of the pier would be significant, and that the pier would unreasonably interfere with existing scenic and aesthetic uses of the coastal wetland. The Ulianos appealed the Board's decision to the Superior Court, which affirmed the Board's order. The Ulianos then appealed the Superior Court's judgment, which we vacated with instructions that the case be remanded to the Board for further findings. See Uliano I, 2005 ME 88, ¶ 26, 876 A.2d at 23.

[¶ 6] Specifically, we found that the Board had promulgated two regulations in its Wetland Protection Rules that require an analysis of practicable alternatives and an assessment of cumulative impact, but failed to relate these two additional regulatory requirements to the Board's overall evaluation, pursuant to section 480-D(1), of whether the pier would unreasonably interfere with existing scenic and aesthetic uses. Id. ¶¶ 11-14, 18-20, 876 A.2d at 19-20, 21. We found that the Board further erred by grounding its finding of cumulative impacts on speculation that the Ulianos' pier would generate more pier construction. Id. ¶¶ 19-20, 876 A.2d at 21. Finally, we found that the Board's section 480-D(1) findings did not permit meaningful appellate review because the findings merely summarized the evidence and failed to explain why the Ulianos' pier would unreasonably interfere with existing scenic and aesthetic uses. Id. ¶¶ 23, 25, 876 A.2d at 21-22.

[¶ 7] On remand, the Board reopened the record to receive additional evidence on practicable alternatives to the proposed pier and impacts of the proposed pier on existing scenic, aesthetic, recreational, and navigational uses. The Board conducted two site visits in October 2005 and held a public hearing in March 2006.

[¶ 8] In February 2007, the Board again denied the Ulianos' application. In its decision, the Board first addressed the issue of practicable alternatives and noted that it was considering the existence of practicable alternatives as a factor in its assessment of whether the proposed pier would unreasonably interfere with existing scenic and aesthetic uses of the coastal wetland. The Board then found that the Ulianos had at least two practicable alternatives to constructing a pier. First, it determined that the Ulianos could use a dinghy and an outhaul system to access a boat on a mooring based on evidence that such a system is commonly used throughout Eastern Bay and was used by the previous owner of the Ulianos' property. Second, it determined that the Ulianos could maintain their boat at a yacht club located approximately three miles away.

[¶ 9] The Board then turned to its analysis of section 480-D(1) to determine whether the proposed pier would unreasonably interfere with existing scenic, aesthetic, recreational, and navigational uses of the coastal wetland. The Board concluded that the proposed pier would have a significant adverse impact on several existing scenic and aesthetic uses of the coastal wetland, including "persons walking the intertidal area, enjoying the common area of the Sand Point Association, [and] boating in the near-shore area of Eastern Bay." The Board based this finding on evidence that Eastern Bay is "relatively undisturbed and unobstructed" and contains only two piers; that access to Eastern Bay is achieved primarily through walkways, paths, and stairways; and that the Ulianos' proposed pier would traverse the intertidal area and dominate the landscape:

The Board finds that the relevant stretch of shoreline when considering potential scenic and aesthetic impacts of this project is within Eastern Bay, from Hadley Point to Parker Point. This area is geographically distinct from the larger, deeper, and more open Frenchman Bay to the east. With the exception of the two older piers in Emery Cove and the walkway at the east of Sand Point, the permanent piers cited by the applicants are all located in Frenchman Bay and are not relevant to the Board's consideration of the impact of the proposed project on Eastern Bay.

Within Eastern Bay, the Board finds that, due to the terrain, the configuration of the shoreline, and the nature of the existing development, the visual impact of the proposed pier will vary depending upon the vantage point from which it is viewed. The visual impact of the proposed pier will be greatest for persons walking the intertidal area, enjoying the common area of the Sand Point Association, or boating in the near-shore area of Eastern Bay. Given the nature of Eastern Bay, there is a relatively large expanse of intertidal area at low tide between Mount Desert Island Biological Laboratory to the west of the proposed development site and the Ovens to the east that is easily walked. Evidence in the record indicates that persons living in the vicinity of the proposed project enjoy walking this shoreline as tides permit. For these users of the coastal wetland, the pier would be a significant visual intrusion, traversing the entire width of the intertidal area (approximately 95 feet) at a height above grade of between ten feet (at the shoreline) to 17 feet (at mean low water). While persons walking the intertidal area would be able to pass beneath the dock, the dock would dominate the landscape and partially obstruct and/or fragment the view along the intertidal area and across Eastern Bay, significantly detracting from the visual and aesthetic quality of the resource and thereby interfering with this use of the coastal wetland. In addition the proposed pier would be located approximately 160 feet west of the Sand Point Association Common Lot and would interfere with views of Eastern Bay from the Common Lot. The Board finds that the proposed pier would have a significant adverse impact on the scenic and aesthetic value of the wetland.

The Board also finds that the proposed pier would have a significant adverse scenic and aesthetic impact on the uses of the area by boaters in Eastern Bay and, in particular, kayakers and small boat users who frequent the near-shore area. Evidence in the record indicates that this area is used daily during the summer (weather permitting) by organized kayak groups who launch at Hadley Point to the west or Hulls Cove to the east. The project would also negatively impact such uses by neighbors who keep kayaks on the Sand Point Association Common Lot and who kayak in the immediate vicinity of the proposed project. The visual impact of the proposed project on boaters in Eastern Bay would diminish with increased distance, but the pier would continue to be visible at many points throughout the Bay especially when...