MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2016 ME 7
Docket:   Ken-15-15
Argued:   December 8, 2015
Decided:  January 14, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.



                                 JONATHAN DAY

                                          v.

               BOARD OF ENVIRONMENTAL PROTECTION et al.

PER CURIAM

         [¶1] Carol Reece appeals and Jonathan Day cross-appeals from a judgment

entered in the Superior Court (Kennebec County, Marden, J.) vacating the Board

of Environmental Protection’s decision granting Reece’s application for a coastal

sand dune permit to create a vehicle access way to her property abutting Popham

Beach, and to develop a lawn and walkway on the property. Reece’s property is

currently undeveloped, and she has not proposed placing any type of building on

the land. See 2 C.M.R. 06 096 355-2 § 3(F) (2014).

         [¶2] The Board reached a de novo decision in March 2014 after abutting

landowner Day and others appealed from the initial August 2013 grant of the

permit by the Department of Environmental Protection.              See 38 M.R.S.

§§ 341-D(4), 480-D, 480-E (2015). The Board was asked to interpret the Coastal

Sand Dune Rules, 2 C.M.R. 06 096 355-1 to -10 (2014), that it had promulgated
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pursuant to 38 M.R.S. § 480-AA (2015) of the Natural Resources Protection Act,

38 M.R.S. §§ 480-A to 480-JJ (2015). We affirm the decision of the Board and

therefore vacate the Superior Court’s December 2014 judgment.

      [¶3] The Board was called upon to interpret section 5(C), which prohibits

certain projects if they are “likely to be severely damaged” when allowing for a

two-foot rise in sea level over 100 years. 2 C.M.R. 06 096 355-5 § 5(C). The

Board interpreted this provision not to apply to the proposed project because the

term “severe damage” is defined in the Rules as damage exceeding “50% of a

building’s value,” and no building was proposed. 2 C.M.R. 06 096 355-2, -3, -5

§§ 3(F), (G), (GG), 5(C). The Board further determined that the proposed sand

and gravel access way to Reece’s lot is a driveway, not a road, and is therefore

allowed as an exception to a prohibition against new construction in frontal dunes,

see 2 C.M.R. 06 096 355-5 § 6(B)(1); and that the proposed permeable lawn area is

not a prohibited “parking area” despite Reece’s plans to park a camper there on a

seasonal basis, 2 C.M.R. 06 096 355-3, -5 §§ 3(AA), 6(B). On appeal by Day, see

38 M.R.S. § 346(1) (2015), M.R. Civ. P. 80C, the Superior Court vacated the

Board’s decision.

      [¶4] Reviewing the Board’s decision directly, see Mallinckrodt US LLC v.

Dep’t of Envtl. Prot., 2014 ME 52, ¶ 17, 90 A.3d 428, we conclude that the

Board’s interpretations of its own ambiguous Rules do not conflict with the
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relevant statutes or with the Rules, and that the Rules do not compel a contrary

interpretation. See 38 M.R.S. §§ 480-D, 480-AA; 2 C.M.R. 06 096 355-1 § 1;

Cent. Me. Power Co. v. Pub. Utils. Comm’n, 2014 ME 56, ¶¶ 18-19, 24-25, 90

A.3d 451; Friends of Boundary Mountains v. Land Use Regulation Comm’n, 2012

ME 53, ¶ 6, 40 A.3d 947; Kroeger v. Dep’t of Envtl. Prot., 2005 ME 50, ¶ 16, 870

A.2d 566; Reardon v. Dep’t of Human Servs., 2003 ME 65, ¶ 5, 822 A.2d 1120.

Although the Superior Court’s interpretation of section 5(C) highlights the

ambiguity of that provision,1 the Rules do not compel the interpretation reached by

the court, and the Board’s interpretation, relying on the definition of “severe

damage” as damage to buildings, is not arbitrary or unreasonable. See Cent. Me.

Power Co., 2014 ME 56, ¶¶ 18-19, 90 A.3d 451; Kroeger, 2005 ME 50, ¶ 16, 870

A.2d 566. Because we affirm the Board’s interpretations of its own Rules, we

must vacate the Superior Court’s judgment and remand for the entry of a judgment

affirming the Board’s decision to grant Reece the permit.

        The entry is:

                        Judgment vacated. Remanded for the Superior
                        Court to affirm the decision of the Board.


   1
      The court reasoned that an exclusion contained in section 5(C) for beach nourishment and dune
restoration projects would be mere surplusage if section 5(C) did not apply to projects that did not involve
buildings. See Preti Flaherty Beliveau & Pachios LLP v. State Tax Assessor, 2014 ME 6, ¶ 17, 86 A.3d
30.
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On the briefs:

        Chris Neagle, Esq., Troubh Heisler, PA, Portland, for appellant
        Carol Reece

        James D. Poliquin, Esq., Norman, Hanson & DeTroy, LLC,
        Portland, for cross-appellant Jonathan R. Day

        Janet T. Mills, Attorney General, Mary M. Sauer, Asst. Atty.
        Gen., and Margaret A. Bensinger, Asst. Atty. Gen., Office of
        the Attorney General, Augusta, for appellee Board of
        Environmental Protection


At oral argument:

        Chris Neagle, Esq., for appellant Carol Reece

        James D. Poliquin, Esq., for cross-appellant Jonathan R. Day

        Mary M. Sauer, Asst. Atty. Gen., for appellee Board of
        Environmental Protection



Kennebec County Superior Court docket number AP-2014-23
FOR CLERK REFERENCE ONLY
