Vague docks


The SJC has posted the summaries for its upcoming arguments,

If it wasn't  way up in Bangor, I'd go to the Uliano argument.  This involves the neverending saga of DEP review of applications to build docks in Maine; this latest round might tell us important things about the test for vagueness and excess delegation in Maine.

The saga begins with a case we worked on, Kroeger v. DEP, 2005 ME 50, 870 A.2d 566.  Kroeger had oceanfront property on Mount Desert Island.  He wanted to build a big dock to park his big boat.  Neighbors, including our client, objected.  You need a NRPA permit to build a dock.  See 38 MRS 480-C.  Kroeger didn't get his in part because the DEP found that he didn't meet the "won't interfere with existing scenic uses" criterion.  He appealed.   The SJC, majority opinion by Justice Calkins, affirmed, with a dissent from Justices Dana and Alexander.

Shortly thereafter the SJC decided Uliano (now I suppose to be deemed Uliano I).  Uliano v. DEP, 2005 ME 88, 876 A.2d 16.  We aren't involved in this one.  Tell me if this sounds familiar.  Plaintiff has waterfront property (this time in Bar Harbor.)  He wants to build a big dock to park his big boat.  Neighbors object.  The DEP approved; the BEP reversed, again based on the scenic values criterion.  The SJC vacated the reversal, remanding .  This time Justice Levy wrote the majority opinion, with no dissent. 

Apparently on remand the BEP denied the application again, again on the scenic factor, and so here we are again. with Uliano II

What's the difference between the Kroeger and Uliano?  Why was the finding in Kroeger upheld, but rejected in Uliano I, and what does that bode for Uliano II

It is much too nice and sunny a day for me to dwell on details.  One interesting point is, in Kroeger, the applicant didn't preserve his vagueness argument, and in Uliano I the SJC didn't reach a vagueness/excessive delegation claim.  I see that Uliano is raising a vagueness claim now, according to the summary, so the SJC might have to reach this issue this time around.

Obviously, as these cases show, if you have a squishy criterion like aesthetics, there's a potential for a vagueness claim or, more appropriately in this Maine agency context, a claim that the statute excessively delegates to the executive branch board.  When beauty is in the eye of the beholder, you can get too subjective to meet the express Separation of Powers provisions in Maine's Constitution.  The squishier a criterion, the more unpredictable and subjective the agency decision can be, leading to the potential for favoritism, politics and the esssence of arbitrariness.

On the other hand, you probably can come up with a definition of aesthetics that would past constitutional muster.  I think that the DEP came up with some rules after Kroeger and Uliano I to bring some clarity to this — although I haven't burdened myself by actually checking and seeing what the rules actually say.

No, all I want to do is raise some questions.  What happens if you have a too-squishy statutory criterion but the agency limits it by rule?  That should bring predictability and seems to address constitutional concerns — except that it's the agency, not the Legislature bringing the definition to the rule, so don't you still have a delegation problem?  (Unless the Legislature approves the rule).  Also, how do vagueness principles comport with a delegation analysis?  For example, people mix up facial and as-applied vagueness claims all the time.  Really only as-applied matters in a civil, non-First Amendment context – but what about the delegation clause?  And how do you analyze an as-applied vagueness claim in an agency context?  Say the property owner wants to build the biggest, ugliest dock ever in the history of creation.  Hence, the application should go down in flames under an as-applied analysis.  But if the legal principle is to ensure agency consistency, then isn't the squishiness of the rule enough to strike the rule or statute down as a whole, and doesn't/shouldn't the applicant have the standing to raise that generic issue, and isn't the proper relief not to apply the factor at all?  But is that fair?  Is it right that Mr. Butt Ugly dock doesn't have to meet the now invalid criterion at all, when a valid criterion could be developed?  These rules are all limits on the use of property, so one could say yes (and presumably the other, less squishy and so valid criteria would take care of more anti-environmental harms).  But that's cold comfort to the neighbor of the world's most obnoxious looking dock, painted screaming neon, glow-at-night yellow.

If the Court gets to the vagueness question, it may also shed some light, implicit or explicit, on the 80B-80C dichotomy.  As a practical matter, you can find multiple decisions striking down ordinance language for vagueness under Rule 80B; but a vagueness finding in a Rule 80C statutory context is rare.  The only logical legal explanation ever suggested in the decisions for this difference is that one reads language in context, and vague statutory language can be salvaged by reading it in the context of other statutes, and the whole statutory framework.  Another explanation – that the Court gives more leeway to the professional staffers in Augusta than local volunteers – wouldn't make sense as a legal matter, and would also seem dependent upon individual circumstances and be suspect for that reason, too.

Finally, even if the SJC once again avoids the constitutional questions, it still has to decide whether the individual agency decision was arbitrary and capricious – a concept closely wrapped up, obviously, with the predictability goal of the constitutional requirement.  

Everyone would love to have bright lines in legal tests, and no one is particularly happy with a "I know it when I see it" standard.  The courts certainly try to avoid them, because the squishier the test, the more it invites litigation – the applicant and objectors might as well roll the dice all the way up to the SJC.  

So I will be interested to see if the SJC brings coherance to this area, and to the general issue of making a criterion like aesthetics meet anti-arbitrary, constitutional standards.