Marjorie J. Getz v. Janis Walsh David M. Torangeau v. Janis Walsh

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 103
Docket: Cum-13-467 & Cum-14-4
Submitted
On Briefs: July 1, 2014
Decided: August 7, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, and GORMAN, JJ.
MARJORIE J. GETZ et al.
v.
JANIS WALSH et al.
and
DAVID M. TOURANGEAU et al.
v.
JANIS WALSH et al.
SILVER, J.
[¶1] In these consolidated appeals, Marjorie J. Getz and David M.
Tourangeau appeal from judgments entered in the Superior Court (Cumberland
County, Wheeler, J.) dismissing their petitions for judicial review pursuant to M.R.
Civ. P. 80C and 5 M.R.S. §§ 11001-11008 (2013) of two related administrative
decisions: (1) an order of the Board of Environmental Protection (Board)
summarily dismissing as untimely Getz and Tourangeau’s appeal from a decision
of the Commissioner of the Department of Environmental Protection
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(Commissioner) granting Janis and Paul Walsh a permit to construct a pier on their
property pursuant to the Natural Resources Protection Act, 38 M.R.S. §§ 480-A to
480-HH (2013); and (2) a decision of the Commissioner dismissing Getz and
Tourangeau’s petition to revoke the Walshes’ permit.
[¶2] Contrary to Getz and Tourangeau’s arguments on appeal, the Board did
not err in concluding that Getz and Tourangeau were not “abutters” entitled to
notice of the Walshes’ permit application pursuant to 2 C.M.R. 06 096 002
§§ 1(A), 14 (effective April 1, 2003). See Forest Ecology Network v. Land Use
Regulation Comm’n, 2012 ME 36, ¶ 28, 39 A.3d 74 (“In reviewing an agency’s
interpretation of its own rules, regulations, or procedures, we give considerable
deference to the agency and will not set aside the agency’s interpretation unless the
regulation or rule compels a contrary interpretation.” (quotation marks omitted)).
Nor did the Superior Court abuse its discretion in declining to apply the good cause
exception we recognized in Keating v. Zoning Board of Appeals of Saco, 325 A.2d
521, 524 (Me. 1974), to extend the time for appeal from the Commissioner’s
decision granting the Walshes’ permit application. See Viles v. Town of Embden,
2006 ME 107, ¶¶ 8-11, 13, 905 A.2d 298 (noting that we review a court’s
application of the good cause exception for an abuse of discretion and identifying
factors to be considered). To the extent that Getz and Tourangeau challenge the
Walshes’ title and the authority of the Walshes’ agent, they did not raise those
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arguments before the Board and therefore failed to properly preserve those issues
for appeal. See Clark v. Hancock Cnty. Comm’rs, 2014 ME 33, ¶ 22, 87 A.3d 712
(noting that issues not raised at the agency level are not preserved for appeal).
[¶3] With respect to Getz and Tourangeau’s appeal from the
Commissioner’s dismissal of their petition for revocation, the Legislature has given
the Commissioner sole discretion to decide whether to revoke permits. See
1 M.R.S. § 71(9-A) (2013); 38 M.R.S. § 342(11-B) (2013); Friedman v. Bd. of
Envtl. Prot., 2008 ME 156, ¶¶ 13-16, 956 A.2d 97. The court thus properly
analogized this case to Friedman and did not err in dismissing Getz and
Tourangeau’s appeal. See 2008 ME 156, ¶¶ 13-16, 956 A.2d 97. We need not
reach Getz and Tourangeau’s other arguments with respect to their petition for
revocation.
The entry is:
Judgments affirmed.
On the briefs:
Marjorie J. Getz, pro se appellant
David M. Tourangeau, pro se appellant
Mary E. Costigan, Esq., Bernstein Shur, Portland, for appellees Janis and
Paul Walsh
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Janet T. Mills, Attorney General, Thomas A. Harnett, Asst. Atty. Gen., and
Margaret A. Bensinger, Asst. Atty. Gen., Office of the Attorney General,
Augusta, for appellee Department of Environmental Protection
Cumberland County Superior Court docket numbers AP-13-27 and AP-13-37
FOR CLERK REFERENCE ONLY