SEVEN ISLANDS LAND COMPANY v. MAINE LAND USE REGULATION COMMISSION
Supreme Judicial Court of Maine.
Sept. 17, 1982.
450 A.2d 475
Argued Sept. 10, 1981.
When there is no dispute regarding the facts and no possibility of any upon consideration of all the evidence, the issue becomes one of law. Paige v. Maine Employment Security Commission, Me., 391 A.2d 321, 324 (1978).
The instant case presents a factual scenario substantially identical with the situation that confronted the Oregon Court in Shaffer v. Employment Division, 33 Or.App. 537, 577 P.2d 85 (1978), where the unemployment compensation claimant, who occasionally assisted his wife in her farm work and spent 5 to 12 hours per week assisting his replacement at his former place of employment and who received no remuneration from his activity, was held not to have made a false statement of material fact when, in filling out his weekly compensation claim forms, he stated he had done no work during the previous week. We conclude that, as in Shaffer, Crocker‘s assistance to his wife in connection with the transportation of his nephew for the purpose of bait gathering for the shop, even though licensed in both names, was very minimal, indeed. His limited activity, as conceded by the Commission, did not financially benefit the claimant, nor unduly restrict his time. The Commission‘s finding of fraudulent misrepresentation or nondisclosure of a material fact subjecting the claimant to the penalties of disqualification and reimbursement of the benefits received is wholly unsupported by the record and constitutes reversible error as a matter of law. See also Springer v. State, 120 N.H. 520, 418 A.2d 1277, 1279 (1980).
The Commission had the duty to determine all of the issues which were properly and adequately raised by the evidence in order that one judicial review may effectively terminate the case. Lawrence v. State Employment Security Commission, Me., 432 A.2d 790, 792 (1981). Given the undisputed facts of this case, our conclusion becomes inescapable that Crocker was entitled to benefits.
NICHOLS, J., joins in this separate concurring opinion.
Eaton, Peabody, Bradford & Veague, Bernard J. Kubetz (orally), Daniel G. McKay, Bangor, for plaintiff.
James E. Tierney, Atty. Gen., Paul Stern, Asst. Atty. Gen. (orally), Augusta, for defendant.1
Before McKUSICK, C. J., and GODFREY, NICHOLS, ROBERTS, CARTER and WATHEN, JJ.
PER CURIAM.
Pursuant to legislation first enacted in 1969 and substantially revised in 1971, LURC has authority for land use regulation in unorganized and deorganized portions of the state, including Township 13, Range 5 W.E.L.S. (“T. 13, R. 5“).
In October, 1979, Seven Islands, a land management company, filed on behalf of its principals, the land owners,2 an application for a LURC permit to harvest timber on 662 acres of land situated in the Burpee Brook protection subdistrict.3 LURC held extensive public hearings at which it received over 500 pages of testimony (with some 70 exhibits) from representatives of the applicant Seven Islands and of the Department of Inland Fisheries and Wildlife (“the Department“), as well as from several LURC-employed consultants, expert in the fields of forestry, wildlife management, and entomology. On June 18, 1980, LURC issued to Seven Islands its Forestry Operations Permit 390 (“FOP 390“), a complex 17-page document that both sets forth the limitations imposed upon the cutting permit and explains the reasons for LURC‘s imposing those limitations. The 662 acres covered by FOP 390 are broken into eight areas and numerous subareas, and the extent of cutting permitted in each is adjusted depending upon the extent of dead and dying fir and the specifically focused need as found by LURC in each area or subarea for maintaining winter cover for deer. In the aggregate, LURC authorizes unrestricted timber harvesting on 112 acres and cutting on another 432 acres of all fir that is dead or likely to die within two years. Harvesting on the remaining 118 acres is prohibited. However, in all areas where FOP 390 restricts or prohibits harvesting, Seven Islands may remove trees that have a high risk of blowdown or that are determined, after consultation with a representative of the Department, to be not contributing to winter deer shelter. Furthermore, Seven Islands in the future may apply for additional cutting “necessary to avoid substantial loss of economic value” from further deterioration of tree condition. In conclusion, LURC found:
The permitted harvesting prescribed [in FOP 390] provides for the conservation at this time of a reasonable amount of remaining deer wintering habitat in this area, while also enabling the landowner to make reasonable economic use of his property.
Displeased with the restrictions placed by LURC upon its timber harvesting within the 662 acres involved in its permit application, Seven Islands sought judicial review in the Superior Court pursuant to
I. Substantial Evidence
Seven Islands contends that LURC‘s decision is not based upon substantial evidence, requiring reversal pursuant to
In applying the “substantial evidence” standard of review to an agency action, the reviewing court must examine the entire record “to determine whether on the basis of all the testimony and exhibits before the agency it could fairly and reasonably find the facts as it did.” In re Maine Clean Fuels, Inc., Me., 310 A.2d 736, 741 (1973). The fact that the record contains inconsistent evidence or that inconsistent conclusions could be drawn from the record does not prevent the agency‘s findings from being sustained if there is substantial evidence to support them. Id. This court will not substitute its judgment for LURC‘s where there may be a reasonable difference of opinion. Id.; see also 4 R. Anderson, American Law of Zoning 25-26 (2d ed. 1977). The burden of proof clearly rests with the party seeking to overturn the decision of an administrative agency. See Central Maine Power Co. v. Waterville Urban Renewal Authority, Me., 281 A.2d 233 (1971).
This argument fails for two reasons. First, Seven Islands has pointed to no specific inconsistency between the two sets of data. As LURC found, the Department data was simply more detailed and specific than that of Seven Islands.5
Second, even if the inconsistencies alleged did in fact exist, Seven Islands’ challenge of the LURC decision would fail because, as a matter of law, inconsistent evidence alone does not preclude a finding of substantial evidence, In re Maine Clean Fuels, Inc., supra at 741, and an examination of the record reveals evidence sufficient to support the decision.6
II. Nonconforming Use
Seven Islands claims a right to unrestricted timber harvesting on the property in question, as a nonconforming use under
The Superior Court rejected this claim, holding 1) that Seven Islands’ interpretation of the statute was “inconsistent with LURC‘s establishment and zoning of Protection Districts” and 2) that “this grandfathering provision is limited to actual use of particular property at the time of enactment of the LURC [standards] rather than potential uses ....” We agree.
This “grandfather” clause must be read in the context of the entire statutory scheme. The court interprets a statute in light of its evident purpose so that all of its provisions are read in harmony and are effectuated. Dobbs v. Maine School Administrative District No. 50, Me., 419 A.2d 1024, 1028 (1980); Labbe v. Nissen Corp., Me., 404 A.2d 564, 567 (1979).
The land use regulation law directs that the unorganized territory be zoned into protection, management, or development districts representing the appropriate uses of the respective areas.
[a]reas where development would jeopardize significant natural, recreational and historic resources, including, but not limited to, flood plains, precipitous slopes, wildlife habitat and other areas critical to the ecology of the region or State.
(Emphasis added)
any land use activity or activities directed toward using, reusing or rehabilitating air space, land, water, or other natural resources ....
(Emphasis added)
The definition of protection districts may be contrasted with that of management districts, which are defined as
[a]reas which are appropriate for commercial forest product or agricultural uses and for which plans for additional development are not presently formulated nor additional development anticipated.
(Emphasis added)
Taken together, these provisions evince a clear legislative plan to set aside protection districts where timber harvesting may be regulated or prohibited altogether, and management districts where such harvesting may not be restricted.9
Seven Islands argues that the mere fact that a standing forest exists and is being maintained by its owners for later commercial harvesting means that the land is “devoted” to timber harvesting and therefore a nonconforming use under section 685-A(5). Seven Islands reasons that timber harvesting should be given special consideration under the statute because trees are similar to a farm crop that is cared for and is harvested only at maturity. This argument wholly ignores the legislative scheme. To adopt the construction that Seven Islands urges upon the court would be to place all standing forest land beyond the regulation of the commission, since all forest is potentially suitable for harvesting timber. Such a construction would automatically put most of the territory of the unorganized and deorganized portion of the state forever beyond the reach of protective district regulation by LURC. It would render the concept of protection districts meaningless and indistinguishable from that of management districts.
Still further, Seven Islands’ definition of “nonconforming use” finds no support in general principles of zoning law. To qualify for “nonconforming” status, a use must be actual and substantial. 1 R. Anderson, supra at § 6.19, 6.22; 4 A. Rathkopf, The Law of Zoning and Planning ch. 58, § 2 (4th ed. 1982). The burden of proving such is on the nonconforming user and the determination is made on a case-by-case basis.
Seven Islands does not allege that it was engaged in cutting, or even marking trees to be cut, on the date the area in question was zoned for protection as a deer yard. The maintenance of a commercial forest for future timber harvesting is, of course, a use of the land, but it is not timber harvesting itself, for which use a LURC permit is required. The mere maintenance of a commercial forest is at best preparation for the “use” of the land for timber harvesting.
III. Constitutionality
Seven Islands has attacked LURC‘s decision as 1) an unconstitutional “taking” without just compensation in violation of the fifth and fourteenth amendments to the United States Constitution and article I, section 21 of the Maine Constitution and 2) a violation of the substantive due process guarantees of the fourteenth amendment to the United States Constitution and article I, section 6-A of the Maine Constitution. These provisions are conceptually distinct and will be dealt with separately.
Both the United States and the Maine Constitutions prohibit the government from taking private property for public purposes without just compensation. The traditional statement of the rule applicable to the constitutionality of “taking” was formulated by Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-16, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922): “The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” “[W]hether a particular restriction will be rendered invalid by the government‘s failure to pay for any losses proximately caused by it depends largely upon the particular circumstances [in that] case.” Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). Thus, the principal focus of the courts in “taking” cases has become a factual inquiry into the substantiality of the diminution in value of the property involved.
In recent years, the Supreme Court of the United States has required the diminution to be very substantial indeed before a taking will be found. See Agins v. Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1979); Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1980). Since ownership consists of a “bundle” of property rights, the mere extinguishment of one of those rights does not necessarily amount to a taking without compensation. The question is whether the right in question constitutes “a fundamental attribute of ownership” such that its extinguishment would render the property substantially useless. Agins v. Tiburon, supra 447 U.S. at 262, 100 S.Ct. at 2142.10
The proper procedure for analyzing taking questions is to determine the value of the property at the time of the governmental restriction and compare that with its value afterwards, to determine whether the diminution, if any, is so substantial as to strip the property of all practical value. Lovequist v. Conservation Commission of Town of Dennis, 379 Mass. 7, 393 N.E.2d 858, 866 (1979). In determining the amount of diminution, the focus is on the interference with the rights in the parcel as a whole, not merely the portion immediately affected. Penn Central Transportation Co. v. New York City, supra 438 U.S. at 130-31, 98 S.Ct. at 2662-63; Foss v. Maine Turnpike Authority, Me., 309 A.2d 339 (1973). Where timber is involved, the trees affected are to be considered as part of the property‘s market value. Timberlands, Inc. v. Maine Highway Commission, Me., 284 A.2d 894, 898 (1971).
We must begin our analysis by identifying the parcel of land whose value is claimed to be diminished. Because the principals represented by Seven Islands own all of the 25,000 acre township in which the Burpee Brook deer yard is situated, the parcel in question is the entire township. Seven Islands proffers no evidence that the value of this parcel has been diminished. Rather, Seven Islands simply asserts that the value of the land as timberland has been destroyed, and hence the value of the land for any purposes is zero. Seven Islands bases this claim on the assertion that the only profitable use of the land is timber harvesting.
Thus, Seven Islands’ claim is that denial of permission to cut any trees other than dead or dying fir on 432 acres of a 25,000 acre township and a temporary prohibition on cutting on another 118 acres of the same tract renders it substantially useless. This claim must be rejected as a matter of law. See Opinion of the Justices, 103 Me. 506, 69 A. 627 (1908).
B. Due Process
Seven Islands asserts that because the LURC decision is a “taking,” it is also an unreasonable exercise of the state‘s police power in violation of due process guarantees. Since we find that there was no “taking,” the “due process” argument as presented by Seven Islands can be quickly disposed of for that reason alone.
In any event, separate analysis leads to our rejection of any claim of a due process violation. By the conventional analysis, the requirements of due process in the exercise of the police power [are] analytically separated into three component elements:
- The object of the exercise must be to provide for the public welfare.
- The legislative means employed must be appropriate to the achievement of the ends sought.
- The manner of exercising the power must not be unduly arbitrary or capricious.
(Emphasis in original) State v. Rush, Me., 324 A.2d 748, 752-53 (1974). Seven Islands makes no suggestion that LURC violated procedural due process in exercising its statutory power in an unduly arbitrary or capricious manner. The first two requirements of due process are equally satisfied.
The preservation of wildlife is a valid object for the exercise of the police power, see State v. McKinnon, 153 Me. 15, 133 A.2d 885 (1957); and the record amply establishes both the importance in general of a deer wintering habitat to deer survival and the importance specifically of the Burpee Brook deer yard for that purpose. Controlled cutting in that area clearly furthers a legitimate and significant public purpose. The protective district zoning by LURC is also a reasonable means for achievement of the object of protecting Maine‘s deer herd. LURC‘S FOP 390 displays a careful balancing between the necessities of providing winter cover in a long-existing deer yard, on the one hand, and the interest of the private parties to realize a maximum return from the land, on the other. As the Supreme Court recently noted again in Penn Central Transportation Co., supra 438 U.S. at 124, 98 S.Ct. at 2659, government “hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the law, and ... [the] government may execute laws and programs that adversely affect recognized economic values.” We can find no due process violation in FOP 390.
The entry must be:
Judgment affirmed.
McKUSICK, C. J., and GODFREY, ROBERTS and CARTER, JJ., concurring.
NICHOLS and WATHEN, Justices (concurring).
While we agree with our colleagues in their disposition of the substantive issues, we write separately because it is our view that this action for judicial review should be dismissed for lack of standing in the Petitioner, Seven Islands Land Company. The gravamen of the claim asserted herein is an unconstitutional taking. It is not a claim to be asserted by a manager vicari-
We start with the fundamental principle that courts are instituted to afford relief to persons whose rights have been invaded, or are threatened with invasion, by a defendant‘s act or conduct, or to give relief at the instance of such persons.2 A court may appropriately refuse to entertain an action brought by one whose rights have not been invaded or infringed.3 A party must have some interest in the subject matter of potential litigation to entitle him to maintain an action thereon.4
In sum, the question of standing is generally resolved by determining whether the controversy touches upon the legal relations of parties having adverse legal interests and whether the party invoking the court‘s jurisdiction has a personal stake in the outcome of the controversy.5 As we declared a few months ago, “A party has standing to appeal a judgment only where the judgment adversely and directly affects that party‘s property, pecuniary or personal rights.”6 This Petitioner, we submit, cannot meet that test.
Standing is a prudential matter often involving the principle of judicial self-restraint by which the courts avoid interference with other branches of government.7 The doctrine of standing insures that the court will have the benefit of truly adverse parties in resolving the controversy. True adverseness sharpens the presentation of issues upon which a court so largely depends for the illumination of difficult questions before it.
Perhaps not in the instant case, but in many cases, there are added benefits derived from the application of this doctrine, just as there is in the application of the real-party-in-interest rule,
In the case at bar we must consider the question of standing as it relates to judicial review of administrative action. Here we find the essential principle codified in the statute governing such an appeal as this:
Persons aggrieved by final actions of the commission, including without limitation any final decision of the commission with respect to any application for approval or the adoption by the commission of any district boundary or amendment thereto, may appeal therefrom in accordance with Title 5, Chapter 375, subchapter VII. This right of appeal, with respect to any commission action to which
this right may apply, shall be in lieu of the rights provided under Title 5, section 8058, subsection 1.
12 M.R.S.A. § 689 (1980) .
The question before us is whether or not Seven Islands Land Company is a person “aggrieved” by the final action of the Commission.
In the context of appeals from the decisions of other agencies we have had repeated occasions to declare that for a party to have standing to seek judicial review of an administrative order, the party must demonstrate a particularized injury from the order. Pride‘s Corner Concerned Citizens Association v. Westbrook Board of Zoning Appeals, Me., 398 A.2d 415, 418 (1979); Matter of Lappie, Me., 377 A.2d 441, 443 (1977).
Seven Islands Land Company has failed on this record to demonstrate a particularized injury to it.8 The Petitioner is not aggrieved.
Accordingly, we would prefer to decide the case on lack of standing. We would not reach the merits of the controversy.