Law court again rejects appeal on MDI pier

Posted Aug. 18, 2009, at 11 p.m.
Last modified Jan. 30, 2011, at 11:58 a.m.

BAR HARBOR, Maine — It has been more than eight years since Anthony and Erin Uliano first proposed building a 95-foot pier off their property in the village of Salisbury Cove.

After initially being approved by Maine Department of Environmental Protection, the pier proposal has been reviewed twice by the state Board of Environmental Protection, which each time rejected the application on the grounds that the pier would have an adverse impact on the scenic and aesthetic qualities of Eastern Bay, which separates Mount Desert Island from Lamoine and Trenton.

Each time, the Ulianos appealed the BEP decision to the courts. For each legal appeal, the denial has been upheld first in Hancock County Superior Court before proceeding to the Maine Supreme Judicial Court. In 2005, the supreme court voided BEP’s previous decision and remanded the case back to the board for its reconsideration.

The most recent rejection of the Ulianos’ proposal was last Thursday, when the Law Court upheld BEP’s second denial in a 4-1 ruling.

“I’m disappointed,” Anthony Uliano said Tuesday. “The supreme court agreed with us once. I’m really surprised they changed their decision.”

The Ulianos had argued that BEP’s decision was so vague that it was unconstitutional. To deny the pier on aesthetic grounds, they asserted, was too subjective a justification for denying their application for state permits.

Uliano said the case has come to be a symbolic one for waterfront owners throughout Maine.

“I think it’s unfair for waterfront owners,” he said. “I think there are more [development] restrictions to come.”

Uliano said he is not sure whether he has further legal options but indicated he would find out whether there are more avenues to be pursued.

Attempts Tuesday to contact the Ulianos’ attorney, Edmond Bearor of Bangor, were unsuccessful.

Mary Opdyke, a neighbor of the Ulianos’ who is part of a group of neighborhood residents opposed to the Ulianos’ pier plans, said Tuesday the appeals have taken up a lot of time and effort for people on both sides of the issue. She said she hopes the Ulianos do not pursue any more appeals.

“We’re very happy,” Opdyke said of the court decision. “It’s good to see [that] the state of Maine protects its natural beauty.”

The court’s majority decision, written by Associate Justice Jon Levy, indicates that the BEP’s reasons for denying the pier were not unconstitutionally vague.

“Although scenic and aesthetic uses are not readily susceptible to quantitative analysis, the Constitution does not demand such an analysis in order to subject those uses to legal protection,” Levy wrote.

In his dissenting opinion, Associate Justice Donald Alexander described BEP’s rejection of the Ulianos’ pier application as using “rambling and obscure reasoning.” By citing the aesthetic impact the pier would have on undefined “viewshed” in the area, Alexander wrote, BEP has established an insurmountable standard for any waterfront development in Maine.

“If this proposal can be rejected on this basis, then any alteration of any existing shorefront, lakefront or riverfront can be similarly rejected,” Alexander wrote.

The Ulianos also own the Criterion Theater building in downtown Bar Harbor. The theater itself is operated by a local nonprofit group.

Anthony Uliano is president and chief technology officer of AMC Technology LLC, a firm based in Richmond, Va., that specializes in communications integration software that companies use at customer relations contact centers.

btrotter@bangordailynews.net

460-6318

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