Maine State Supreme Judicial Court

Court hears oral arguments in Wawenock LLC v MDOT

Posted:  Tuesday, May 15, 2018 - 2:15pm

The Maine Supreme Judicial Court heard arguments Tuesday in Wawenock LLC et al vs. Maine Department of Transportation. The proceeding lasted less than a half hour and included the justices' probing questions, mostly for the plaintiffs' attorney Robert S. Hark. Nathanial Rosenblatt represented MDOT.

Hark argued neither MDOT, nor the lower courts, addressed the will of the framers of the Sensible Transportation Policy Act voters passed in 1991 and the Legislature revised in 2007. The act requires MDOT and the Turnpike Authority to minimize harmful effects of transportation projects, reduce the use of fossil fuels, consider the full range of options available, address the needs of urban, rural and disabled travelers, and, central to Hark’s argument, “incorporate a public participation process in which local governmental bodies and the public have timely notice and opportunity to identify and comment on concerns related to transportation planning decisions, capital investment decisions and project decisions," and that the two agencies be responsive to the comments and concerns.

Hark said due to the language, the framers and the voters intended MDOT to consider every resident’s concerns.

“Does this mean you believe the STPA confers a private right to redress," Justice Ellen Gorman asked. “If someone speaks to MDOT about a concern and he or she doesn’t like the response, he or she has a right to go to court and hold up the entire project?”

“Perhaps,” Hark said.

Rosenblatt cited residents' 2016 vote approving Option 2, which included removing on-street parking from Main Street. He said there have been multiple options for citizen participation and STPA only requires that MDOT be “responsive," not that it will always agree with a concern.

Hark referred to the June 2017 vote rejecting changes including the decision not to seek federal funding. The funding request would have triggered a Section 106 review for historic preservation.

Hark said he believed the trial court should have conducted an evidentiary hearing on voters' will with STPA.

“But the bill was framed, no doubt, by lobbyists,” Chief Justice Leigh Saufley said. “Are those the framers you want the court to talk to?”

Hark thought the MDOT commissioner could be asked. “But he is an opponent,” Saufley said. “He isn’t going to be able to be an expert in why people voted for this referendum.”

Likewise, she said, legislators, who opposed the measure, forcing it to go to voters, would be unlikely to be able to discuss it.

The court will decide the plaintiffs' appeal.