Document Type

Case Note


In Kroeger v. Department of Environmental Protection, the Maine Supreme Judicial Court, sitting as the Law Court, held that the Department of Environmental Protection (DEP) had appropriately denied a private landowner a permit to build a dock. Out of nine permitting criteria enforced by the DEP, the court held that the structure would violate one criterion: the unreasonable interference with the scenic uses of Somes Sound. The majority cited the enjoyment of the Sound by boaters and recreationalists, as well as the nearby tourist attraction of Acadia National Park as factors supporting the area’s scenic use. The majority found that the DEP had not arbitrarily denied the permit and that the plaintiff had practicable alternatives to building the proposed dock, including utilizing a local marina and making boat launches from the shore. The dissenting opinion, however, argued the plaintiff’s application satisfied the DEP’s wetland permitting criteria and that no perceptible visual impairment would occur by constructing the plaintiff’s proposed dock. The dissent maintained that the plaintiff had no practicable alternatives by which to reasonably access and utilize the waterfront. In addition, the dissent criticized the majority for overlooking the plaintiff’s property rights as a landowner and instead deferring too readily to the DEP’s decision regarding scenic uses. The Kroeger decision highlights the ongoing debate over the use of aesthetics as a legitimate basis for regulations protecting visual resources. The subject of aesthetics is by its nature controversial: at its heart are questions and subjective assessments pertaining to beauty - its value, importance, and whether it should or should not be afforded protection in particular situations. Nonetheless, aesthetic regulations have existed throughout this country’s history, gaining traction in the early 20th century. The United States Supreme Court has addressed the issue of aesthetic regulations, first via zoning cases, and then by way of dicta forceful enough to inspire the growth of aesthetic regulations by state governments. Aesthetic regulations have been and continue to be utilized in Maine, as demonstrated by Kroeger. Indeed, much of the case law surrounding aesthetics in Maine involves the DEP’s scenic uses provision, and often focuses on coastal locales. However, Kroeger offers a new dimension because it involves the issue of tourism along Maine’s coast. The question now arises: given the important role tourism plays in this state’s economy, how should the Law Court weigh the competing interests of preserving both aesthetic value and land owners’ rights when the protected area is near a coastal tourist destination? This Note considers where Maine generally stands in the national debate regarding aesthetic regulation after Kroeger, and where it may be headed in terms of coastal aesthetic regulation. First, this Note chronicles how aesthetic regulations slowly developed from the general laws of nuisance into the legitimate exercise of the police powers. It then describes the two different approaches taken by various jurisdictions in this country for validating aesthetic regulations. The first approach is premised on the belief that aesthetic regulations on their face fit securely within the general welfare prong of the police powers. The other approach relegates aesthetics to a secondary role, not allowing them to stand alone, but rather to play an ancillary role in the government interests of health, safety, moral, or general welfare. This Note then chronicles how Maine specifically has interpreted aesthetic regulations, analyzing the approaches in Kroeger that the Law Court’s majority and dissent utilized, and criticizing both sides for not more fully explaining their rationales. In conclusion, this Note contends that in its next relevant case the Law Court should more fully detail the preferred basis for aesthetic regulations in Maine, potentially creating a litmus test for cases involving popular coastal scenic areas. In addition, this Note suggests that the Maine Legislature could include the promotion of the economy, which would encompass tourism, as a legitimate category within the state’s police powers. Such a specific governmental directive would decidedly aid the Law Court in future coastal aesthetic regulations cases.



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