MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 201 6 ME 7 Docket: Ken

- 15

- 15 Argued : December 8, 2015 Decided: January 1 4 , 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 t he 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 , an d to develop a lawn and walkway on the property

. Reece’s property is currently undevelo ped, 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 ] T he Board reach ed a de novo decision in March 2014 after abutting landowner Day and others appeal ed from the ini tial August 2013 grant of the permit by the Department of Environmental Protection

. S ee 38 M.R.S. § § 341

- D(4) , 480

- D, 480

- E (2015 )

. T he Board was asked to interpret the Coastal Sand Dune Rules , 2 C.M.R. 06 096 355

- 1 to

- 10 (2014), that it had promulgated2 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 ] T he Board was called upon to interpret s ection 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 p roject because th e term “severe damage” is defined in the Rules as damage exceeding “50% of a building’s value,” and no buil ding was proposed. 2 C.M.R. 06 096 355

- 2,

- 3,

- 5 § § 3 (F), (G), (GG), 5(C)

. The Board further determined that t he proposed sand and gravel access wa y 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 dune s ,

s ee 2 C.M.R. 06 096 355

- 5 § 6(B)(1) ; and that the proposed permeable lawn area is not a prohibited “parking are a” 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, s ee 38 M.R.S. § 346(1) (2015 ) , M.R. Civ. P. 80C , the Superior C ourt vacated the Board’s decision

. [¶ 4 ] R eview ing 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 t he Board’s interpretation s of its own ambiguous R ules do not conflict with the3 relevant statute s or with the Rules , and that the Rules do not co mpel 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. P ub. Utils. Comm’n , 2014 ME 56, ¶ ¶ 18

- 19, 24

- 25 , 90 A.3d 451; Friends of Boundary Mountain s v. Land Use Regulati on 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 ; Reard on v. Dep’ t of Human Servs. , 2003 ME 65, ¶ 5, 822 A.2d 1120

. A lthough the Superior Court’s interpretation of section 5(C) highlights the ambigu ity 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 L LP v. State Tax Assessor , 2014 ME 6, ¶ 17, 86 A.3d 30.4 On the briefs: Chris Neagle, Esq., Troub h 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 At torney 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 F OR C LERK R EFERENCE O NLY