January 2001, pg. 12. Securing Local Land Use Permits: An Ounce of Prevention is Worth a Pound of Cure.

Maine Bar Journal


January 2001, pg. 12.

Securing Local Land Use Permits: An Ounce of Prevention is Worth a Pound of Cure

Maine Bar JournalJanuary 2001Securing Local Land Use Permits: An Ounce of Prevention is Worth a Pound of CureHOPE CREAL JACOBSENI. Introduction

In light of the current political and environmental pressures on local land use permitting, presenting an application for a land use permit to a local land use board is no longer a simple affair. Whereas developers in the past may have presented skeletal information and received the desired permits, developers today, faced with issues of sprawl, local opposition to development, and greater community awareness of environmental impacts of development, must be prepared to present a thorough and detailed application that demonstrates full compliance with each provision of the ordinance in question. When assisting a developer in applying for a local land use permit and presenting that application before a local land use board,(Fn1) lawyers should be mindful that presenting a comprehensive, well-supported application at the outset of the permitting process can mean the difference between succeeding or failing to obtain the permit with conditions the developer can tolerate in a time frame that meets the developer's construction schedule. Worse still, failing to present adequate information can result in an outright denial of a project permit, an outcome sure to disappoint developers who thought they were smoothly sailing through the permitting process, headed straight for project approval. In advising developers, attorneys can provide a valuable service by ensuring that adequate technical information is provided at the beginning of the permitting process to facilitate the issuance of the needed permit in a timely manner. Presenting an application this way can be complicated and expensive, but will pay off in spades when it results in the timely issuance of a much-needed land use permit. In addition, presenting a solid application at the outset sends a message to local land use boards that the applicant respects the value of the permitting process and the land use board's time, which is almost always volunteered by citizens.

In addition to the problem of anticipating the usual variables at the local level, the recent upward trend in the housing market and increase in demand for new homes, particularly in southern and coastal Maine, has caused many municipalities in those areas to rethink their local permitting processes in order to manage growth in a manner that is economically and environmentally feasible, resulting in further uncertainty for project approval. In an effort to manage sprawl, towns have enacted building permit caps, moratoria on new construction, and impact fees for new development. With a greater awareness of the environmental and political consequences of permitting projects and with political pressure from developers and citizen groups, many municipalities are paying greater attention to their ordinances than they perhaps have in the past.

The importance of local permitting has been bolstered by the increasingly broad authority of Maine municipalities to regulate a variety of land uses. The source of that regulatory authority may be municipal "home rule," state statutes mandating the adoption by municipalities of land use ordinances such as those regulating the shoreland zone, or the increased delegation by the Maine Department of Environmental Protection ("DEP") to municipalities of environmental review and permitting of larger scale projects under the Site Location of Development Act.(Fn2) This jurisdiction over local land use matters gives municipalities tremendous power to determine whether a certain project will succeed. Given the vagaries of local politics, the experience and knowledge of board members, and the resources that municipalities may or may not have or be willing to use to review a project, the local permitting process may be fraught with uncertainty for the unprepared (or even the prepared) developer. Having adequately prepared the application can make a big difference in how the process, with all its variables, proceeds.

Once a local permitting authority has rendered its decision, that decision is usually very difficult to overturn on appeal, barring a glaring error in the ordinance or its implementation by the board. It is therefore imperative that attorneys review the ordinance in detail and insist that the developer or its consultant provide technical or other substantive data for each standard of the ordinance in support of an application, rather than merely submitting conclusory statements that the relevant criterion has been satisfied. The developer should be prepared to not only meet the requirements of the ordinance, but to also respond to challenges to his application made by members of the board and the public. After reviewing the basis for municipal authority over local land use permitting, this article discusses the importance of presenting a comprehensive application supported by adequate data and the difficulty that a developer may face in seeking to reverse a decision by local officials who have denied a permit application.

"Home Rule" and the Role of Towns in Local Land Use Permitting

Prior to 1969, municipal authority to regulate land use was limited in scope to those specific powers and duties that the Legislature chose to grant. In November of 1969, however, a statewide citizen referendum resulted in a "home rule" amendment to the Maine State Constitution,(Fn3) which reads:

The inhabitants of any municipality shall have the power to alter and amend their charters on all matters, not prohibited by Constitution or general law, which are local and municipal in character. The Legislature shall prescribe the procedure by which the municipality may so act.

This constitutional amendment and the accompanying procedural enabling legislation(Fn4) changed the longstanding rule that municipalities, being creatures of state statute, only had those specific powers conferred by the Legislature(Fn5) and gave rise to a proliferation of land use municipal ordinances.

The enabling legislation to the amendment further increased municipal power by omitting the language of the amendment that limited municipal power to matters "local and municipal in character:"

Any municipality, by the adoption, amendment or repeal of ordinances or bylaws, may exercise any power or function which the Legislature has power to confer upon it, which is not denied either expressly or by clear implication, and exercise any power or function granted to the municipality by the Constitution of Maine, general law or charter.(Fn6)

The enabling legislation also states that the section should be "liberally construed," and that "[t]here is a rebuttable presumption that any ordinance enacted under this section is a valid exercise of a municipality's home rule authority."(Fn7) Further, the statute sets forth a standard of preemption which requires that "[t]he Legislature shall not be held to have implicitly denied any power granted to municipalities under this section unless the municipal ordinance in question would frustrate the purpose of any state law."(Fn8)

Despite this broad grant of power, early cases construing the extent of municipal authority under the recently enacted home rule scheme failed to recognize it.(Fn9) In those early cases, the Law Court narrowly focused on the principle that municipalities have only those powers granted to them by the Legislature, failing to acknowledge the broad sweep of the amendment. It therefore tended to strike down local ordinances unless it found specific state statutes supporting their creation.(Fn10)

Eventually, in School Committee of Town of York v. Town of York,(Fn11) the Law Court held that the enabling statute granted broad power to municipalities, unlimited by the constitutional amendment's narrower home rule provision restricting the power to all matters which are "local and municipal in character."(Fn12) The Law Court stated that "it is clear that the Legislature intended to convey a plenary grant of the state's police power to municipalities, subject only to express or implied limitations."(Fn13) Further, the Court held that the local statutory scheme was not preempted by state law. Although this case did not explicitly overrule prior cases that had limited municipal power, the underlying reasoning of those earlier cases was implicitly undermined by the decision.

The Law Court has continued to employ a preemption analysis in determining whether municipalities have exceeded their home rule authority. In International Paper Co. v. Town of Jay,(Fn14) the Law Court upheld a local land use ordinance in Jay which contained stricter air omissions regulations than those found under state statute. The question the Court focused on was whether the Legislature had expressly prohibited any local regulation of air quality or whether the Legislature had intended to occupy the field and, therefore, whether the municipal legislation in question would frustrate the purpose of state law. After reviewing the state regulatory statute,(Fn15) the Court determined that the Legislature clearly intended not to occupy the field of air pollution control, that the...

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