Uliano v. Board of Environmental Protection

Summary

The Maine Supreme Judicial Court reviewed the denial of Anthony and Erin Uliano’s permit application to construct a private pier under the Natural Resources Protection Act. The court held that the Board of Environmental Protection improperly treated the practicable-alternatives standard as an independent permitting criterion and relied improperly on speculative cumulative impacts. It vacated the judgment and remanded for additional findings and a new analysis under the statutory standard concerning unreasonable interference with existing scenic and aesthetic uses.

Holdings

1. The practicable-alternatives provision is not an independent permitting criterion. It is a factor that the Board must balance as part of its analysis under 38 M.R.S.A. section 480-D(l) of whether the proposed project would unreasonably interfere with existing scenic, aesthetic, recreational, or navigational uses.
2. The Board may not base a cumulative-impact finding on speculation that other piers might be constructed in the future, and any cumulative-impact findings must be incorporated into the section 480-D(l) reasonableness analysis.
3. An agency denying a permit must state findings with sufficient specificity to identify the uses considered and explain why the proposed project would unreasonably interfere with those uses; conclusory summaries of the evidence and conclusions do not permit meaningful appellate review.
4. The court declined to address the Ulianos' arguments that the scenic-and-aesthetic-use standard was an unconstitutional delegation, that the practicable-alternatives and cumulative-impact standards were unconstitutionally vague or exceeded the Board's rulemaking authority, and that the order violated a common-law right to wharf out.

Questions Presented

1. Whether the Board improperly treated the Wetland Protection Rules' practicable-alternatives standard as an independent and determinative permitting criterion rather than as a factor in the statutory section 480-D(l) reasonableness analysis.
2. Whether the Board improperly relied on speculation that other piers might follow in making its cumulative-impact finding.
3. Whether the Board's findings concerning unreasonable interference with existing scenic and aesthetic uses were sufficiently specific to permit meaningful appellate review.
4. Whether the court should address the Ulianos' constitutional and common-law arguments concerning the permitting standards and the right to wharf out.

Disposition

vacated