Development Projects and the Limits of Moratoria

I am always struck at how vigorously some property owners oppose development projects, despite their having previously, and successfully, pursued identical projects. Do they not remember that they did the exact same thing? Is there some definition of fairness I am not aware of? Whatever the cause, it can be exasperating for the developer and detrimental to sound zoning and planning.

A recent case in my small town has really shined a light on just how absurd this can all be.

A landowner, in compliance with state law and as is her right, created a number of lots under the so-called 2 in 5 rule. Subject to a number of exemptions and exclusions, the general rule is that a landowner can create 2 lots in any 5-year period without needing municipal (i.e., planning board) approval. 30-A MRSA section 4401(4):

4. Subdivision. "Subdivision" means the division of a tract or parcel of land into 3 or more lots within any 5-year period that begins on or after September 23, 1971. This definition applies whether the division is accomplished by sale, lease, development, buildings or otherwise. The term "subdivision" also includes the division of a new structure or structures on a tract or parcel of land into 3 or more dwelling units within a 5-year period, the construction or placement of 3 or more dwelling units on a single tract or parcel of land and the division of an existing structure or structures previously used for commercial or industrial use into 3 or more dwelling units within a 5-year period.

For the landowner the benefits of this approach are numerous, but for the most part all revolve around not having to build infrastructure such as roads, sidewalks, electric utilities, water, sanitary sewer, and stormwater infrastructure, as well as not having to set aside or otherwise provide open or common space. For Maine’s relatively “cash poor, land rich” population, the 2 in 5 rule has been a way to monetize their land over time without a lot of upfront development costs or risks.

But back to my town where the land adjacent to this landowner’s 2 in 5 development was bought by a developer “from away,” who applied to the planning board for a residential subdivision approval. Almost a year later, the project is still languishing in front of planning board. The 2 in 5 landowner is now on the planning board and is circulating a citizens petition to enact a 24-month moratorium on any subdivision needing planning board approval. Putting aside the potential conflict of interest issues at play here, a 24-month moratorium is laughably illegal.

State law limits moratoria to a definite term of not more than 180 days. In certain circumstances, a moratoria may be extended for an additional term of not more than 180 days. Moratoria are not intended to simply stop development, but are instead intended to provide a municipality breathing room to thoughtfully look at issues and impacts around development and make evidenced-based policies to guide development.

In order to adopt a moratorium, the municipality must first have evidence that additional development is likely to overburden existing facilities or that there is a shortage of such facilities. What form this evidence takes is subject to some debate, ranging from mere statements from public facilities managers (e.g., school district, water district, sewer district, public works, and so on) to glossy consultant’s reports concluding that existing public facilities are or may be insufficient to adequately address additional development.

The second criteria is that the municipality’s comprehensive plan or ordinances are inadequate to protect resources from serious harm. I find this criteria sort of odd in that municipalities, if they have a zoning ordinance, must enact a zoning ordinance that is in compliance with a comprehensive plan, that, as its principal function is supposed to protect resources from serious harm and guide development in a responsibly and thoughtful way. It might be said that a moratorium allows a municipality to correct an otherwise deficient comprehensive plan.

Anytime a municipality considers a moratorium, it should do so carefully and thoughtfully.

Municipal Officers Can Pass Certain Ordinances

Even in towns where all legislative authority rests with town meeting, the Selectmen or Town Council have authority to pass certain kinds of ordinances. Following is a list of those topics: 

Traffic Control Ordinances – Title 30-A M.R.S. § 3009 allows the municipal officers to enact ordinances governing: 

• Pedestrian traffic, including the use and maintenance of sidewalks and crosswalks. (Yes, the municipal officers can pass an ordinance requiring property owners to clear snow from sidewalks.)
• The operation of vehicles in the public ways and on publicly owned property. (Towns have used this to pass Jake brake ordinances, motorcycle noise ordinances, and various other issues that aren’t covered by state law).
• Parking in public ways or public parking areas.

Extension of Moratoria – While town meeting must enact the original moratorium, the municipal officers may act to extend the moratorium for additional 180-day periods upon a finding that the conditions which called for the moratorium still exist. (30-A M.R.S. § 4356)

Cable TV Ordinances – The municipal officers may enact ordinances governing the franchising and regulation of cable TV within the municipal boundaries. (30-A M.R.S. § 3008)

General Assistance Ordinances – These ordinances govern the processing and application requirements for receiving general assistance from the municipality. Each year, the municipal officers must also amend the local maximum levels of assistance. (22 M.R.S. § 2305) (Note that Maine Municipal Association provides a model ordinance as well as annual suggested maximums.)

Local Snowmobile and ATV Access Routes – Under state law, snowmobiles and ATVs may not travel within the public way. However, 12 M.R.S. 13106-A(5)(G) gives the municipal officers authority to pass ordinances allowing for such travel if they determine that it can be done safely.