Wyer v. Board of Environmental Protection

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 45
Docket:	Cum-99-362
Argued:	February 8, 2000	
Decided:	March 10, 2000	

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

WILLIAM W. WYER

v.

BOARD OF ENVIRONMENTAL PROTECTION
and
STATE OF MAINE

WATHEN, C.J.

	[¶1]  William W. Wyer appeals from a judgment entered in the
Superior Court (Cumberland County, Cole, J.), following a non-jury trial,
finding that the denial of a variance under the State's Sand Dune laws did
not constitute a taking of Wyer's property in violation of the United States
and Maine Constitutions. "The proper procedure for analyzing taking
questions is to determine the value of the property at the time of the
governmental restriction and compare that with its value afterwards, to
determine whether the diminution, if any, is so substantial as to strip the
property of all practical value."  Seven Islands Land Co. v. Maine Land Use
Regulation Comm'n, 450 A.2d 475, 482 (Me. 1982).   Contrary to Wyer's
arguments, we conclude that Wyer failed to meet his burden of proof that
the denial of the variance rendered the property substantially useless and
stripped it of all practical value. See Hall v. Board of Envtl. Protection, 528
A.2d 453, 455 (Me. 1987).  Because of the property's close proximity to
Higgins Beach in Scarborough, the court properly considered the uses of the
property for parking, picnics, barbecues and other recreational uses as
beneficial uses available to Wyer despite the restrictive regulation.  See id.
(stating that the inquiry into diminution of value in part involves "whether
beneficial uses of the property remain available to the landowner despite the
restrictive regulation or ordinance").  The court also properly applied the
fair market value analysis and considered the value of the property to
abutters as an additional factor in determining the value of the property. See
Shawmut Inn v. Town of Kennebunkport, 428 A.2d 384, 394 (Me. 1981);
Frank v. Assessors of Skowhegan, 329 A.2d 167, 173 (Me. 1974); Marchi v.
Town of Scarborough, 511 A.2d 1071, 1073 (Me. 1986).  Further, the court
had competent evidence to support its findings that the property had a value
of $100,000 before the Department of Environmental Protection denied the
variance and $50,000 after it denied the variance.  See Hall v. Board of Envtl.
Protection, 528 A.2d at 455.  Finally, we decline to adopt Wyer's partial
taking theory.  Neither we nor the United States Supreme Court have
allowed recovery for a partial taking and we find no reason to do so here.
	The entry is:
					Judgment affirmed.

Attorneys for plaintiff:

Kurt E. Olafsen, Esq., (orally)
Olafsen & Butterfield
P O Box 130
Portland, ME 04112
	and
Hans Stoeckler, Esq.
P O Box 434
North Dighton, MA 02764

Attorneys for defendants:

Andrew Ketterer, Attorney General
Margaret Bensinger McCloskey, Asst. Atty. Gen., (orally)
6 State House Station
Augusta, ME 04333-0006

Attorneys for amicus curiae Maine Audubon Society:

Jennifer Burns Cost, Esq.
Maine Audubon Society
20 Gilsland Farm Road
Portland, ME 04112
	and
Alison Rieser, Esq.
Marine Law Institute
University of Maine School of Law
246 Deering Avenue
Falmouth, ME 04105
	and
John Echeverria, Esq.
The Environmental Policy Project
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001