BEP reviews shorefront standards

ELLSWORTH – State standards used to regulate shorefront development – the constitutionality of which are being contested in two cases scheduled to be argued before the state Supreme Judicial Court – are being reviewed and could be changed to help clarify how those standards are applied, according to officials.

The state Board of Environmental Protection has scheduled a public hearing for 2 p.m. April 3, at the Holiday Inn in Augusta to consider assessing and mitigating the impacts on existing scenic and aesthetic issues, according to Richard Wardwell, the board’s chairman. Wardwell said Monday that the changes under consideration include “numerical guidance” that would help clarify how to quantify scenic and aesthetic standards.

The lack of such measurable standards, such as sight lines and distances, in the board’s current rules have resulted in legal challenges to those rules.

Two Bar Harbor residents, Anthony Uliano and Anne Hannum, appealed to Hancock County Superior Court after each applied to the state for approval to construct piers off their properties and each had their applications denied by the BEP. Hannum had applied to build a 90-foot-long pier in Long Cove near Indian Point, and Uliano had applied to construct a 95-foot-long pier in Salisbury Cove.

Justice Joseph Jabar upheld in November the state’s denial of Hannum’s application. The denial of Uliano’s proposal was upheld by Justice Andrew Mead in February. In each case, the BEP had determined the structures would unreasonably interfere with the existing scenic, aesthetic, recreational or navigational uses in their respective areas.

Bangor lawyer Ed Bearor, who represents Uliano and Hannum, has argued that the wording of the rule cited by the board in denying the appeals is unconstitutionally vague. Bearor said Monday that the board is considering changes to the law that would include the adoption of measurable standards for determining the scenic and aesthetic impact of proposed waterfront projects.

The adoption of precise measurable standards, Bearor said Monday, would support his argument that the words “scenic” and “aesthetic” are too vague for an applicant to know how those uses could be “unreasonably” affected by a proposed structure.

“Unless you define those terms for me, I can’t define the term ‘unreasonable’ in any quantifiable way,” Bearor said. “If [the law] is vague, then it’s unconstitutional and it should be declared void.”

Wardwell said members of the board occasionally have had difficulty with applying the rule to submitted development applications, but said the proposed changes are not the result of Hannum’s and Uliano’s appeals.

“I wouldn’t say it has anything to do with court cases,” Wardwell said. “It’s more of a result of the fact that we’ve all struggled how to best deal with the issue.”

Bearor said that it would be interesting to compare the proposed numerical standards to the measurements included in his clients’ denied applications.

“If Hannum and Uliano don’t meet those standards, they probably could [be amended to meet the standards],” Bearor said. “If Hannum and Uliano do, well, there you go.”