What’s up Dock?

It appears that we now have the definitive dock case, Uliano v. BEP, 2009 ME 89,


I've blogged on this subject matter before – what happens when a wealthy landowner wants to build a big dock for his big yacht and his equally wealthy neighbors object.  The relevant statute is NRPA, 38 MRS ss. 480-A to 480-GG, and the SJC finally had to address whether the statute's scenic use provision was unconstitutionally vague (the issue was raised in a previous case in which we represented the successful opponent to the application, but the applicant had failed to preserve this particular argument.  Kroeger v. DEP, 2005 ME 50, 870 A.2d 566).

The answer is no, with a dissent from Justice Alexander. 

Uliano has been trying to get his dock since February 2001, with the matter going up once before to the SJC, 2005 ME 88, 876 A.2d 16, and lots of BEP proceedings before and after.  The decision and dissent total 39 pages, with the majority explaining at length why it thinks NRPA has enough legs for it to pass constitutional muster, while in his dissent, Justice Alexander opines that the statute is the equivalent to the ordinance requiring the conservation of natural beauty struck down as vague in Kosalko v. Town of Georgetown, 2000 ME 106, 752 A.2d 183. 

To me the distinguishing feature (and one noted by the SJC majority) is the fact that NRPA talks about unreasonable interference with existing scenic and aesthetic uses, while the Kosalko criterion is beauty in the abstract.    

What you need in a statute or ordinance is enough predictability (a) to guide your behavior as an applicant or other interested party, and (b) to make the standard judicially reviewable, i.e. the Court has enough guidance so it could find an abuse of the agency's discretion in granting or not granting the application.  The "existing" component provides that limitation to aesthetic squishiness.  

Basically, what this boils down to is if the area is a place where there are already a bunch of docks, it's not a pristine beautiful spot, and you can't meet your needs easily with an alternative, then you should get a dock like everyone else already has.  Conversely, if it's a unique unsullied fjord where lots of people like to go to hike and contemplate nature, there are no other docks, and you can park your yacht at the club down the street, then you don't get a permit.

Obviously, the devil is in making the decision in-between.  But to meet constitutional standards, a criterion doesn't have to be precise, and some types of laws, like NRPA, it can't be.  The fact that an agency might find a criterion met or not met based on the same evidence is not the test; they are allowed, and indeed, supposed to exercise judgment within a demarcated bandwidth.  

In sum, the majority result makes sense to me here. 

A couple of questions/observations:

The majority seems to equate the vagueness test with the excessive delegation test.  Yes, the big picture issues are much the same, but it seems to me that there could be relevant differences in the right case.  I'm not so sure, for example, that a limiting agency interpretation or rule could fill in the gaps in an excessive delegation claim, while that would probably be ok under the vagueness standard, since the point of the excessive delegation standard is to avoid the agency having too much power so that it legislates itself.  The Maine Constitution has explicit separation of powers provisions, and older caselaw notes that the Maine Constitution is much stricter than the U.S. Constitution in this delegation area, so I'd like to think that there was some meaningful teeth in the Maine test.  If it's exactly the same as the vagueness test, which is equal to the federal counterpart, then how are we recognizing the framers' intent?

The majority also spends a lot of time explaining why it gives more weight to a state agency's interpretation than a municipal body's.  It says it does so because the state agency's actions are subject to the APA and its procedural protections.  I think that means rulemaking authority, because the adjudicatory review process under the APA 80C avenue is basically the same as under 80B.  That distinction could make sense when an agency has in fact promulgated rules under the APA (particularly if the rules were subject to legislative review, in which the delegation issue should go away).  In situations where there are no rules, however, that distinction would appear to be moot.  Also, the majority goes on, after referencing the APA process as a factor, additionally to list the promulgation of rules, making me wonder whether the Court mention something else by its APA reference that I am missing.   


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