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.

Definition of Subdivision

Condominium and other multi-unit projects located within a single structure often pose challenges to municipal planning staff and developers alike, particularly as to whether a certain project should be reviewed under the municipal subdivision ordinance, municipal site plan ordinance, or both. Prior Legislative committee amendments to 30-A M.R.S.A. § 4401 and § 4402 were intended to broaden exemptions to municipal subdivision review by exempting projects reviewed under municipal site plan ordinances. After adoption, however, the Revisors Office included language in the printed bill that review must be in accordance with Title 38, section 488, subsection 19 or Title 38, section § 489-A; i.e., DEP Site Location of Development Act. 30-A M.R.S.A. § 4402, sub-§ 6. Instead of broadening the exemption for certain projects, as the Legislature had intended, the final printed language of the bill limited the exemption to only those projects reviewed under Site Law.

These two statutes where again amended on May 30, 2019, by Legislative Document 550, which will take effect on September 19, 2019, and will be applied retroactively to June 30, 2018. The 2019 amendments delete the reference to DEP Site Law and instead define municipal site plan review as “review under a municipal ordinance that sets forth a process for determining whether a development meets certain specified criteria, which must include criteria regarding stormwater management, sewage disposal, water supply, and vehicular access, and which may include criteria regarding other environmental effects, layout, scale, appearance, and safety” (30-A M.R.S.A. § 4402, sub-§ 6).

The new law also states that the municipality’s reviewing authority shall determine whether a municipal site plan review ordinance meets the requirements previously delineated. It also changes the dates for when definitions of “subdivision” in municipal ordinances must comply with the definition of “subdivision” in state law. The prior statute required municipal ordinances to comply with the state law’s definition of “subdivision” by January 1, 2019. 30-A M.R.S.A. § 4401, sub-§ 4, ¶ H–2. Legislative Document 550 changed this date to January 1, 2021 (S.P. 172, L.D. 550, 129th Leg., 1st Reg. Sess. [Me. 2019]). The prior statute also required municipalities to file their conflicting definitions at the country registry of deeds by June 30, 2018, in order for the definition to remain valid through the grace period ending on January 1, 2019 (30-A M.R.S.A. § 4401, sub-§ 4, ¶ H–2). A municipality now “must file its conflicting definition at the county registry of deeds by June 30, 2020, for the definition to remain valid for the grace period ending January 1, 2021” (S.P. 172, L.D. 550, 129th Leg., 1st Reg. Sess. [Me. 2019]).