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Hutchinson v. Cary Plantation
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 129
Docket:	Aro-99-680
Argued:	June 12, 2000
Decided:	June 30, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.




LEON A. HUTCHINSON v. CARY PLANTATION


SAUFLEY, J.

	[¶1]  Leon A. Hutchinson appeals from the judgment of the Superior
Court (Aroostook County, Pierson, J.) affirming a denial by the Assessors of
Cary Plantation of Hutchinson's renewal application for a permit to operate a
septage disposal and land application facility.   Because we conclude that the
Assessors exceeded their authority in arriving at their decision, we vacate
the judgment and remand to the Superior Court for remand to the Assessors
for further consideration consistent with our opinion.
I. BACKGROUND
	[¶2]  Leon Hutchinson has operated a septage disposal facility in Cary
Plantation since 1994.  Along with a number of trucks that transport the
sewage, the facility includes a storage building, in which sewage was
temporarily stored, and a land application site, on which the sewage was
ultimately placed for final disposal.  Hutchinson's initial license was for a
five-year term beginning February 14, 1994.   As the expiration of his license
approached, Hutchinson sought a renewal on August 23, 1998. 
	[¶3]  In order to renew his license, Hutchinson was required to obtain
site approval from both the Department of Environmental Protection and
from the local municipality.  See 38 M.R.S.A. § 1305(6) (Supp. 1999).  The
statute does not require that the site approvals be obtained in any particular
order. See id.  Apparently at the instruction of the Assessors, Hutchinson
first sought approval from the Department.  The Department approved the
renewal on March 15, 1999, with several conditions.  
	[¶4]  Hutchinson then sought approval from the Assessors.  Because
the Cary Plantation has not adopted local zoning or land use controls that are
applicable to the septage site, the Assessors were required to base their
review upon the Department's septage management rules. See 38 M.R.S.A. §
1305(6). Whether the Assessors were authorized to require Hutchinson's
compliance with all or only particular sections of those rules is the issue
before us.
	[¶5]  The Assessors concluded that they were not limited to particular
sections of the rules in judging Hutchinson's application and, after hearing,
denied the application.  In a written decision, they found, in pertinent part,
that:  (1) Houlton Septic Service had operated after its license had expired
without approval by the municipality; (2) Leon Hutchinson had not
demonstrated that he had implemented a lime stabilization program; (3) the
facility contaminated the ambient air and created a nuisance to its
neighbors; (4) Hutchinson and Bruce Folsom, the owner of Houlton Septic
Service,{1} had previously failed to comply with Department regulations;
(5) Houlton Septic Service had not installed sewage screening as required
by Department regulations; and (6) neither Hutchinson nor Folsom had
demonstrated to the Assessors' satisfaction the financial or technical
capacity to operate the facility properly.  After his application was denied,
Hutchinson submitted a request for reconsideration.  The Assessors did not
act on the motion.
	[¶6]  Hutchinson then appealed to the Superior Court pursuant to
30-A M.R.S.A. § 7060(2)(E)(2) (1996) and M.R. Civ. P. 80B, contending that
the Assessors had exceeded their authority in applying the Department's
Septage Management Rules.{2}  Although the Superior Court found that the
Assessors had misapplied the law when they found that Houlton Septic
Service had operated without a license, it ultimately concluded, contrary to
Hutchinson's contentions, that the Assessors had not exceeded their
authority in determining whether to issue the renewal license.  The court
affirmed the decision of the Assessors, and this appeal followed.
II. DISCUSSION
	[¶7]  When the Superior Court acts as an intermediate appellate court,
we review the underlying decision directly for an abuse of discretion, error
of law, or findings unsupported by substantial evidence in the record.  See
Herrick v. Town of Mechanic Falls, 673 A.2d 1348, 1349 (Me. 1996).  Thus,
we review the decision of the Assessors of Cary Plantation directly.  
	[¶8]  We must determine whether the authorizing statute, 38 M.R.S.A.
§ 1305(6), permits a municipality to undertake the same review as that
performed by the Department of Environmental Protection or restricts the
scope of the municipality's review.
	[¶9]  The plain language of section 1305(6) answers the question. 
Section 1305(6) provides in pertinent part:
In the absence of applicable municipal ordinances and local
zoning and land use controls, the municipality shall base its
approval of the site on compliance with the siting and design
standards in the department's rules relating to septage
management.{3}
38 M.R.S.A. § 1305(6) (emphasis added).  By this language, the Legislature
has expressly limited municipalities to a review of compliance with the
siting and design standards set out in the rules of the Department when
considering the approval or reapproval of a site.
	[¶10]  Notwithstanding the plain language of section 1305(6), Cary
Plantation urges us to conclude that its review was not limited by section
1305(6) to siting and design standards.  We review the construction of a
statute de novo and determine its meaning as a matter of law.  See Estate of
Jacobs, 1998 ME 233, ¶ 4, 719 A.2d 523, 524.
In general, the starting point in interpreting a statute is the
statutory language itself.  Unless the statute itself reveals a
contrary legislative intent, the plain meaning of the language will
control its interpretation.  To that end, the particular words
used in the statute must be given their plain, common and
ordinary meaning.
Murphy v. Board of Envtl. Protection, 615 A.2d 255, 258 (Me. 1992) (citing
Perry v. Hartford Accident & Indem. Co., 481 A.2d 133, 138 (Me. 1984);
Keene v. Fairchild Co., 593 A.2d 655, 657 (Me. 1991); Phelps v. President &
Trustees of Colby College, 595 A.2d 403, 405 (Me. 1991)). 
	[11]  There is no ambiguity or contradictory intent in the language at
issue.  These words may be given their plain common and ordinary meaning. 
Applying that meaning to the dispute at bar, the Assessors are authorized to
undertake a review of Hutchinson's compliance only as it relates to the
Department's "siting and design standards."{4}  30 M.R.S.A.  1305(6).  
	[12]  We look then to the Department's rules to determine which
provisions do, in fact, set forth siting and design standards.  The
Department's Septage Management Rules may be divided into three
principle areas:  (1) licensing requirements, (2) septage land requirements,
and (3) septage storage requirements.  The land and storage related
portions of the rules include particular sections regulating the siting and
design of septage facilities.  See Code Me. R. ch. 420,  4, 5, 11, 12. 
Sections 4 and 5 address the siting of land application sites.  These sections
regulate such matters as construction materials, design requirements,
erosion controls, access and traffic controls, and soil pH and make certain
other requirements before septage may be applied on a given site.  Sections
11 and 12 address the design and siting, respectively, of storage facilities
and contain provisions that categorically exclude the placement of storage
facilities in certain areas, require certain buffer zones between a facility and
water sources, and address other matters such as soil drainage and slopes. 
	[13]  We conclude that the "siting and design standards in the
Department's rules relating to septage management,"  38 M.R.S.A.
 1305(6), are currently found in those four sections of the Department's
rules, see Code Me. R. ch. 420,  4, 5, 11, 12.  Accordingly, pursuant to
section 1305(6), the Assessors were limited to considering these sections
when deciding whether to approve Hutchinson's renewal application.{5}
	[14]  The Assessors, however, incorrectly understood that they were
authorized to consider matters beyond the siting and design of the facility. 
For example, the Assessors explicitly found that Hutchinson had violated
section 3(C) of the Septage Management Rules by creating a nuisance.  See
Code Me. R. ch. 420,  3(C)(1)(d).  Similarly, the Assessors considered the
financial capacity of the applicant, a factor also addressed in the "licensing
requirements" chapter, not in any of the siting and design provisions.  See
Code Me. R. ch. 420,  3(C)(1)(e).  Unless financial limitations have resulted
in the applicant's inability to meet its burden on siting and design
standards, the Assessors may not base a denial on financial concerns
generally because the municipality has no authority to undertake a general
review of financial issues.  That task has been delegated to the Department
alone.
	[15]  Although the Assessors also considered factors that were within
the scope of their review authority, it is not possible for us to determine
what they would have concluded had they limited themselves to a review of
siting and design as required by law.{6}  We therefore vacate the denial of
Hutchinson's license, and remand the matter to the Assessors for further
consideration.  The Assessors may, in their discretion, take additional
evidence before rendering a decision.
	The entry is:
Judgment vacated.  Remanded to the Superior
Court for remand to the Assessors of Cary
Plantation for action consistent with this
opinion.

Attorney for plaintiff: Roger L. Huber, Esq., (orally) Eaton Peadbody Bradford & Veague, P.A. P O Box 1210 Bangor, ME 04402-1210 Attorney for defendant: Richard C. Cleary, Esq., (orally) Cleary & Gordon, P.A. 21 Military Street Houlton, ME 04730
FOOTNOTES******************************** {1} . There was some controversy over exactly who was operating the disposal facility. Apparently, Hutchinson operated the disposal site itself, and Bruce Folsom operated Houlton Septic Service-thus, it was Folsom who collected the waste and transported it to Hutchinson's facility. For the purposes of this case, the parties do not appear to distinguish between Hutchinson's and Folsom's activities, and we do not distinguish between them here. {2} . Title 30-A, section 7060(2)(E)(2) authorizes an appeal, as provided in 30-A M.R.S.A. § 2692(3)(G) (1996), from a denial of a permit under an ordinance enacted by a plantation. Here, although the decision of the Assessors was not made under its own ordinance, it was made under the statutory provision applicable in the absence of such an ordinance, and the decision was properly reviewable by the Superior Court. {3} . When the municipality has promulgated ordinance provisions regarding septage management, the statute provides: "The municipal officers shall approve, after hearing, any such private [septage] site if they find that the site complies with municipal ordinances and with local zoning and land use controls." 38 M.R.S.A. § 1305(6). Cary Plantation has not promulgated a septage management ordinance. {4} . Cary Plantation does not challenge the Legislature's authority to designate specific areas of review by the municipality. See Me. Const. art VIII, pt. 2, § 1; 30-A M.R.S.A. § 3001 (1996). {5} . Because the Department may amend its rules from time to time, the sections implicating siting and design standards may change. {6} . Because we remand for further consideration by the Assessors, we do not reach any other errors asserted by the parties.