RANGELEY CROSSROADS COALITION et al. v. LAND USE REGULATION COMMISSION et al.
SJC Docket No. 243
Supreme Judicial Court of Maine
July 15, 2008
2008 ME 115
Argued: Jan. 16, 2008.
[¶26] Without persuasive evidence regarding the cause of the discrepancy, the law governing recounts must guide our analysis. See
[¶27] Here, the official recount process was carried out, and that recount resulted in a total vote count of 969 votes for the two candidates. In these circumstances, we rely on the application of the election statutes and the Secretary of State‘s statutorily authorized rules and guidelines to determine the outcome of the election. Absent persuasive evidence of misdeed or error during the recount process, including, for example, a violation of the applicable statutes, rules, or guidelines, we rely on the results of that recount, as augmented by our inclusion of the three disputed ballots in the vote tally, to determine that Innes has prevailed in this election by one vote.
C. Outcome of the Election
[¶28] Because we have determined that (A) the votes cast on all three of the disputed ballots in the House District 107 Democratic primary race must be counted and (B) on this record, McLaughlin is not entitled to an additional vote based on the electronic tabulating machines’ tally, we arrive at a final vote count of 485 votes for Innes and 484 votes for McLaughlin.
[¶29] Melissa Walsh Innes is the winner of the 2008 Democratic primary for House District 107.
[¶30] The decision in SJC Docket No. 243 shall, in accordance with
Catherine R. Connors, Esq. (orally), Philip F.W. Ahrens, Esq., Joanna B. Tourangeau, Esq., Pierce Atwood, LLP, Portland, ME, for Nestle Waters North America, Inc.
G. Steven Rowe, Attorney General, Amy B. Mills, Asst. Atty. Gen. (orally), Augusta, ME, for Maine Land Use Regulation Commission.
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.
Majority: CLIFFORD, ALEXANDER, SILVER, MEAD, and GORMAN, JJ.
Dissenting: SAUFLEY, C.J. and LEVY, J.
SILVER, J.
[¶1] Rangeley Crossroads Coalition (Coalition) appeals, pursuant to
I. CASE HISTORY
[¶2] In early 2005 Nestle secured an option to purchase approximately 1000 acres off Redington Road in Dallas Plantation. The site is within LURC‘s jurisdic
[¶3] On July 19, 2005, Nestle submitted to LURC an application for a development to permit Nestle to construct a commercial groundwater extraction and truck load-out facility on the site. This facility would be visited by a number of tanker trucks, which would load up with water and then would transport the water south on Route 16, through downtown Rangeley, to Nestle‘s bottling plants in Hollis, Poland Spring, and Kingfield. Nestle applied for permission to construct the facility under the regulations governing the M-GN subdistrict.
[¶4] The spring source on the site is approximately three miles off Route 16, along the private gravel Redington Road. This spring has its origin in the aquifer mentioned above, and prior to LURC‘s decision, Nestle reached agreement with RWD regarding use of that aquifer.
[¶5] After Nestle submitted its application, LURC granted intervener status to RWD, the Town of Rangeley, and the Dallas Plantation Assessors. In November 2005, a public hearing was scheduled concerning the application. On the eve of the hearing, Nestle and RWD entered into an agreement to resolve RWD‘s concerns and to secure its support for Nestle‘s application. The Assessors continued to oppose the proposed facility.
[¶6] During the public hearing, the Assessors and the Coalition spoke against the facility. After the hearing, LURC accepted written comments. The LURC staff then issued a decision recommending that LURC approve Nestle‘s application.
[¶7] LURC again solicited written comments concerning the items discussed in the staff‘s recommended decision. At its deliberations meeting on March 13, 2006, the LURC commissioners heard a presentation by LURC staff and accepted testimony from Nestle, RWD, the Town of Rangeley, and the Coalition. Other agencies reviewed Nestle‘s application, including the Maine Department of Environmental Protection, the Maine Department of Human Services Drinking Water Program, the Maine Department of Transportation, the Maine Department of Inland Fisheries and Wildlife, the Maine Geologic Survey, the Maine State Soil Scientist, and the Maine Natural Areas Program. The agencies had an overall positive opinion of Nestle‘s project, and were concerned only about the adequacy of water level monitoring. LURC voted five-to-one to grant Nestle a development permit for the facility and required a more stringent monitoring regime in response to agency concerns. LURC found that Nestle‘s project satisfied Categories 6 and 29 in combination, and also Category 30, of its regulations.
[¶8] Part of the agreement between Nestle and RWD stipulated that Nestle‘s water withdrawal will not cause an unreasonable adverse effect on RWD‘s wells. It was also stipulated that Nestle will negotiate a set of festival days with the Town of Rangeley when Nestle‘s trucks will not be routed through the town. The agreement also provided that Nestle will not route more than two trucks per hour through
[¶9] On appeal to the Superior Court, the court vacated LURC‘s finding that the proposed facility was an allowable use pursuant to Categories 6 and 29 of its rules, but the court upheld LURC‘s determination that the use was permitted under Category 30. See
II. DISCUSSION
[¶10] When the Superior Court acts in an intermediate appellate capacity pursuant to M.R. Civ. P. 80C, we review the administrative agency‘s decision directly for an abuse of discretion, error of law, or findings not supported by the evidence. Tremblay v. Land Use Regulation Comm‘n, 2005 ME 110, ¶ 13, 883 A.2d 901, 904; Downeast Energy Corp. v. Fund Ins. Review Bd., 2000 ME 151, ¶ 13, 756 A.2d 948, 951. Whether a proposed use falls within a given category contained in a zoning ordinance is a question of law. C.N. Brown Co. v. Town of Kennebunk, 644 A.2d 1050, 1051 (Me. 1994). We give great deference to an administrative agency‘s construction of a statute administered by it. Gulf Island Pond Oxygenation Project P‘ship v. Bd. of Envtl. Prot., 644 A.2d 1055, 1059 (Me. 1994). We therefore do not substitute our own judgment for that of the agency and must affirm find-ings of fact if they are supported by substantial evidence in the record. Int‘l Paper Co. v. Bd. of Envtl. Prot., 1999 ME 135, ¶ 29, 737 A.2d 1047, 1054. We examine the entire record to determine whether the agency could fairly and reasonably find the facts as it did. Id. We will also not set aside an agency‘s interpretation of its own internal rules, regulations, or procedures unless the rules or regulations plainly compel a contrary result. Downeast Energy Corp., 2000 ME 151, ¶ 13, 756 A.2d at 951. Thus, an agency‘s interpretation will not be upheld if it is contradicted by the language and purpose of the statute. Gulf Island, 644 A.2d at 1059. We avoid expressing opinions on constitutional law whenever a non-constitutional resolution of the issues renders a constitutional ruling unnecessary. Your Home, Inc. v. City of Portland, 432 A.2d 1250, 1257 (Me. 1981).
[¶11] Because we find that Nestle‘s proposed use is permitted under Category 30 of the uses permitted in the M-GN subdistrict by the LURC Rules, we do not consider whether it would be permitted under Categories 6 and 29. The Coalition argues that Category 30 is unconstitutional on its face because it provides no intelligent guidance as to permissible uses and provides no meaningful constraints on LURC‘s discretion. The Coalition also argues that Category 30 is unconstitutional as applied in this case because LURC used it to permit Nestle‘s proposed use, which is inconsistent with the forestry and agricultural uses protected by Category 30. We consider the Coalition‘s argument that Category 30 is facially unconstitutional first.
[¶12] We have held that statutes are void for vagueness when they fail “to furnish a guide which will enable those to whom the law is to be applied to reasonably determine their rights thereunder, and [which will assure] that the determina
[¶13] Category 30 permits, in the M-GN subdistrict, “[o]ther structures, uses, or services which the Commission determines are consistent with the purposes of this subdistrict and of the Comprehensive Land Use Plan and are not detrimental to the resources or uses they protect.”
[¶14] The rules thus require three things for a use to fit within Category 30:(1) LURC must determine that the use is consistent with the purposes of an M-GN subdistrict; (2) LURC must determine that the use is consistent with the Comprehensive Land Use Plan (CLUP); and (3) LURC must determine that the use is not detrimental to the resources or uses that the M-GN subdistrict and the CLUP protect. All of these criteria provide limits to LURC and guidance to others as to which uses are permitted and which are not.
[¶15] First, the LURC Rules state that the purpose of the M-GN subdistrict is “to permit forestry and agricultural management activities to occur with minimal interferences from unrelated development in areas where the Commission finds that the resource protection afforded by protection subdistricts is not required.”
[¶16] Second, Category 30 explicitly requires that any use be consistent with the CLUP. The CLUP extensively describes the goals, policies, and uses to be pursued in LURC‘s jurisdiction. This description evinces a desire to develop the jurisdiction economically while at the same time preserving its environment. LURC is clearly limited by this description, and others will be guided by it.
[¶17] Third, LURC can approve only uses that are not detrimental to the resources that the M-GN subdistrict and the CLUP protect.1 This certainly limits LURC in the uses it can permit and provides guidance to others.
[¶18] Because Category 30 provides three criteria that uses must meet and because each of these three criteria meaningfully limits LURC‘s ability to approve uses and provides guidance to others as to permitted and prohibited uses, we conclude that Category 30 is constitutional on its face and is not void for vagueness.
[¶19] The Coalition also argues that Category 30 is unconstitutionally vague as applied in this case because to declare that Nestle‘s proposed use is consistent with Category 30 means that “consistency” loses all meaning. Assuming, arguendo, that there is a constitutional question as to whether Category 30 is vague as applied, we do not reach it because, as we note above, Category 30 provides three criteria that uses must meet, and each of these
[¶20] First, Nestle‘s proposed use is consistent with the purposes of the M-GN subdistrict, described above. Nestle has presented evidence from experts that its proposed use will occupy one acre of land, preserve 999 acres as forest, and extract an amount of water that will not appreciably affect the source aquifer or surrounding surface waters. The Coalition did not present substantial evidence contrary to this position. This impact would likely amount to minimal or no interference to forestry and agricultural management activities in the region. Because there is no convincing evidence that the proposed use will threaten natural resources, the second part of the M-GN purpose statement is also satisfied.
[¶21] Second, the CLUP speaks in a number of places to proposed uses such as Nestle‘s. It notes that LURC is charged with preventing “the despoliation, pollution and inappropriate use of the water.” Me. Dep‘t of Conservation, Land Use Regulation Commission, Comprehensive Land Use Plan 79 (1997 rev.). The CLUP notes elsewhere that one apparently appropriate use of groundwater is for a “water bottling operation.” Id. at 82. The CLUP later notes that the goal for LURC‘s jurisdiction over “water resources” is to “[p]reserve, protect and enhance the quality and quantity of surface and ground waters.” Id. at 138. Its policy is to “[r]egulate uses of land and water ... in order to prevent degradation of water quality and undue harm to natural habitats.” Id. Moreover, it seeks to “[r]equire ... development standards [to] be met to protect water quality [and] water quantity....” Id. at 138-39.
[¶22] CLUP‘s goals for the water in LURC‘s jurisdiction are, in short, sustaining or improving the quality and quantity of water. Nestle has demonstrated that its proposed use will not negatively affect the quality or quantity of any water. The Coalition has not submitted substantial evidence to the contrary. These CLUP provisions alone would be adequate for LURC to approve Nestle‘s proposed use. There is more, however.
[¶23] CLUP‘s goal for development is to “protect and conserve forest, recreational, plant or animal habitat and other natural resources, to ensure the compatibility of land uses with one another and to allow for a reasonable range of development opportunities important to the people of Maine.” Id. at 140. CLUP‘s goal for economic development is to balance “maintenance and creation of quality jobs, with protecting the environmental quality and special values of this area.” Id. at 141. The record presented to LURC demonstrated that the environmental impact of Nestle‘s proposed use is negligible, while its impact on the creation of jobs would be positive, demonstrating a good fit with CLUP‘s goals for reasonable development, quality jobs, and natural resource protection. Such a use would fit the M-GN subdistrict well, because that subdistrict, “as presently structured, assumes that many activities can co-exist without adversely affecting each other or the forest resource.” Id. at 49.
[¶24] Third, LURC must determine that the proposed use is not detrimental to the resources or uses that the M-GN subdistrict and the CLUP protect. This is the crux of the issue, and the record suggests that LURC could have found that Nestle‘s proposed use would not be detrimental.
The entry is:
Judgment affirmed based on finding regarding Category 30.
SAUFLEY, C.J., with whom LEVY, J., joins, dissenting.
[¶26] I must respectfully dissent.
[¶27] Rezoning, with its inherent public airing and thorough review of the newly proposed uses, should be undertaken before Nestle is allowed to engage in the extraction and transportation of the Rangeley Lakes Region‘s valuable water resources.
[¶28] Nestle proposes to withdraw millions of gallons of water from an aquifer in the region. Each day, up to one hundred trucks would transport 8,250 gallons each of water from the area. Nothing in the Land Use Regulation Commission‘s existing Comprehensive Land Use Plan or in its Prospective Zoning Plan for the Rangeley Lakes Region explicitly contemplates, addresses, or permits such an extraction of the valuable water resource from the Rangeley Lakes Region. It is evident that this use was not anticipated by the Commission. Acknowledging the possibility that certain uses might not have been predicted, the Land Use Regulation Commission‘s Prospective Zoning Plan for the Rangeley Lakes Region provides that LURC “will rezone areas if a landowner can demonstrate that the Commission did not foresee the amount, type, or character of development needed in the area.” Me. Land Use Regulation Commission, Prospective Zoning Plan for the Rangeley Lakes Region 31 (2001).
[¶29] Thus, although I agree that we give great deference to an agency‘s interpretation of its own regulations, see Wheaton v. Dep‘t of Health & Human Servs., 2008 ME 48, ¶ 5, 943 A.2d 568, 570, I would conclude that, absent a properly executed, publicly vetted, change in zoning that alters the nature of the zone in which the proposed use is located, this type of enterprise is not permitted.
[¶30] More particularly, I cannot agree with the Court‘s opinion that the application was properly approved under category 30 of the uses allowed with a permit in the general management subdistrict (M-GN) because I would conclude that extracting and trucking millions of gallons of water per year is not “consistent with the purposes of this subdistrict and of the Comprehensive Land Use Plan.”
I. THE RANGELEY LAKES REGION
[¶31] The version of the Comprehensive Land Use Plan in effect at the time of the appeal identified the Rangeley Lakes Region as an area of rapid growth requiring special planning. Me. Dep‘t of Conservation, Land Use Regulation Commission, Comprehensive Land Use Plan 110 (1997 rev.). The growth in the region was attributed to residential and recreational development. Id. Because of the unique characteristics of the Rangeley Lakes Region, LURC amended the Comprehensive Plan, effective January 1, 2001, by adopt
[¶32] The Rangeley Plan adopted certain new zones but did not make changes to the management zone in which the Nestle site is located. Id. at 19. Most critical to our analysis today, the plan explicitly acknowledged the possibility that uses might emerge that were not anticipated and provided that LURC could rezone areas in such circumstances. Id. at 14, 31. The general management subdistrict from which Nestle proposes to extract and transport millions of gallons of water has not been explicitly zoned for these activities, nor did Nestle seek rezoning.
[¶33] In examining the Comprehensive Land Use Plan and the Rangeley Plan, it is evident that neither of them explicitly approved or anticipated water extraction and transportation as a permitted use in the Rangeley Lakes Region despite the updating of the Comprehensive Land Use Plan in 1997, the enactment of the Rangeley Plan in 2000, and the existence of substantial commercial water extraction activities in other areas in the state for many years.
[¶34] With this background in mind, I turn to the more specific question of whether, in the absence of rezoning, it is reasonable to interpret LURC‘s Land Use Districts and Standards governing the general management subdistrict to allow the proposed resource extraction. See
II. THE GENERAL MANAGEMENT SUBDISTRICT
[¶35] LURC created the general management subdistrict “to permit forestry and agricultural management activities to occur with minimal interferences from unrelated development in areas where the Commission finds that the resource protection afforded by protection subdistricts is not required.”
[¶36] Relevant to the present appeal are the following categories of permitted uses:
(6) Filling and grading, which is not in conformance with the standards of Section 10.27, F and draining, dredging, and alteration of the water table or water level for other than mineral extraction;
....
(29) Other structures, uses, or services that are essential to the uses listed in Section 10.22, A, 3, a through c; and
(30) Other structures, uses, or services which the Commission determines are consistent with the purposes of this subdistrict and of the Comprehensive Land Use Plan and are not detrimental to the resources or uses they protect.
A. Categories 6 and 29
[¶37] LURC‘s regulations, the Land Use Districts and Standards, contain a provision governing the general management subdistrict that allows, upon obtaining a permit, the “draining, dredging, and alteration of the water table or water level for other than mineral extraction,”
B. Category 30
[¶38] The LURC regulations permit “[o]ther ... uses ... which the Commission determines are consistent with the purposes of this subdistrict and of the Comprehensive Land Use Plan and are not detrimental to the resources or uses they protect.”
1. Consistency with the Purposes of the Subdistrict
[¶39] The explicitly identified purpose of the M-GN subdistrict “is to permit forestry and agricultural management activities to occur with minimal interferences from unrelated development in areas where the Commission finds that the resource protection afforded by protection subdistricts is not required.”
[¶40] Examining these uses, it is evident that the substantial water extraction proposed by Nestle was not contemplated as a use permitted in the M-GN subdistrict. The approved uses are either directly related to recreation, agriculture, or forestry, or they are approved to support those uses. Drawing millions of gallons of water per year from an aquifer in the
2. Consistency with the Purposes of the Comprehensive Land Use Plan
[¶41] In addition to its inconsistency with the subdistrict, the proposed use is inconsistent with the Comprehensive Land Use Plan in effect at the time of the proceedings. The Comprehensive Plan identified the general management subdistrict as “[c]over[ing] the residual of LURC jurisdiction, where forest and agricultural activities are allowed and encouraged without significant restriction.” Me. Dep‘t of Conservation, Land Use Regulation Commission, Comprehensive Land Use Plan 6 (1997 rev.). The Comprehensive Plan also particularly identified the Rangeley Lakes Region as an area where haphazard growth could degrade the attractiveness of the region as a recreational center and damage the tourist-based economy. Id. at 119. Regarding water resources, the Comprehensive Plan announced a general goal to “[p]reserve, protect and enhance the quality and quantity of surface and ground waters.” Id. at 138. The policies adopted in pursuit of that goal focused on preventing harm to natural habitats and recreational or aesthetic values, preventing construction in flood prone areas, and protecting bodies of water and ground water from pollution or other threats. Id. at 138-39. Nothing in the Comprehensive Plan demonstrated that LURC had anticipated the harvesting of millions of gallons of water for commercial sale as a potential use, least of all in the specially treated Rangeley Lakes Region.
[¶42] Most compellingly, an examination of the Rangeley Plan, adopted as an amendment to the Comprehensive Plan, demonstrates that this unanticipated proposed use in the general management subdistrict should not be permitted. The Rangeley Plan emphasized the importance of prospective planning. Me. Land Use Regulation Commission, Prospective Zoning Plan for the Rangeley Lakes Region 14 (2001). Accordingly, LURC adopted prospective planning principles that demanded adherence to the Comprehensive Plan and the Rangeley Plan itself:
This prospective plan is guided by the following principles:
1. CONSISTENCY WITH CLUP. Be consistent with the vision, goals, and policies of the Commission‘s Comprehensive Land Use Plan;
....
6. STICK TO THE PLAN. Make it more difficult to rezone areas outside of designated development zones unless extenuating circumstances, such as unforeseen public needs, emerge. Otherwise, this plan, and the effort that went into it will not be an effective investment.
Id. The Rangeley Plan also relies on the zoning process, rather than the vague shoe-horning of activities into ill-fitting categories. Pursuant to the plan, “[t]he Commission will rezone areas if a landowner can demonstrate that the Commission did not foresee the amount, type, or character of development needed in the area.” Id. at 31 (emphasis added).
[¶43] As these portions of the Rangeley Plan demonstrate, LURC‘s prospective plan for the Region did not contemplate the “amount, type, or character” of Nestle‘s proposed use of land in the general
III. CONCLUSION
[¶44] In my opinion, neither the Land Use Districts and Standards, the Comprehensive Plan, nor the Rangeley Plan currently permit Nestle to extract and transport millions of gallons of the Rangeley Lakes Region‘s water resources each year, I would vacate the Superior Court‘s judgment and remand the matter to the court for it to vacate the permit.