Passadumkeag Mountain Friends v. Board of Environmental Protection
102 A.3d 1181
| Me. | 2014Background
- PW sought an expedited wind energy permit and site development approvals for a 14-turbine project on Passadumkeag Ridge, Grand Falls Township.
- The Department denied the permit, finding potential unreasonable adverse impact on Saponac Pond’s scenic character and related uses.
- PW and PF appealed to the Board; the Cupraks submitted objections during the appeal.
- The Board considered the record, conducted independent findings, and ultimately granted the permit, finding no unreasonable adverse impact on Saponac Pond’s viewshed.
- PMF and Cupraks appealed the Board’s decision and argued the Department’s decision should be the operative decision; they also alleged ex parte communications affected due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Operative decision for appeal | Board de novo review; Department findings should control. | Board conducts independent review and is the operative decision. | Board decision is the operative decision. |
| Evidence supporting visual impact findings | Board relied on flawed evidence about visual impacts. | Board properly weighed evidence and credibility; supported by substantial evidence. | Board’s findings on visual impact are supported by substantial evidence. |
| Ex parte communications and due process | Ex parte communications violated due process and tainted the record. | Contacts did not produce procedural unfairness and did not affect rights. | communications did not violate due process; no reversible error. |
Key Cases Cited
- Concerned Citizens to Save Roxbury v. Bd. of Envtl. Prot., 2011 ME 39 (Me. 2011) (Board independently reviews record; not bound by Department findings)
- Friends of Lincoln Lakes v. Bd. of Envtl. Prot., 2010 ME 18 (Me. 2010) (defer to agency interpretation of statute; deferential review of factual findings)
- FPL Energy Me. Hydro LLC v. Dep’t of Envtl. Prot., 2007 ME 97 (Me. 2007) (deferential standard for agency interpretations of statutes)
- Cunningham v. Kittery Planning Bd., 400 A.2d 1070 (Me. 1979) (due process considerations depend on proceeding type)
- Duffy v. Town of Berwick, 2013 ME 105 (Me. 2013) (factors for evaluating ex parte communications in administrative proceedings)