Ordinance Authority - Planning Boards
(from MMA's Handbook for Local Planning Boards: A Legal Perspective, August 1982)
prepared by Rebecca Warren Seel, Senior Staff Attorney
This Maine Municipal Association publication is presented for "Classroom Use Only." Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.
Statutes and Ordinances Which Control Land Use and Which May Affect the Planning Board's Responsibilities
As was noted in the first section of this handbook, the powers and duties of planning boards are governed generally either by State statute or local ordinance provisions. There is no single list of duties which will apply to all boards. The following brief summary of State land use statutes and local ordinances which a municipality may adopt is intended to give board members an idea of the possible range of their authority and of the range of municipal authority to adopt ordinances regulating land use. A planning board will not have authority to administer and enforce these laws unless there is a specific grant of authority to the board contained in the statute or ordinance in question.
Home Rule. In 1969 the Maine Legislature adopted a statute (30 MRSA § 1917) which delegated broad "home rule" ordinance powers to towns and cities. This statute was revised and renumbered in 1989 (30-A MRSA §3001) to make it clear that the Legislature intended "home rule" to be a very broad grant of authority. In its present form, the "home rule" statute reads as follows:
A municipality may, by the adoption, amendment or repeal of ordinances or bylaws, 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, general law, or charter... The 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.
This statute provides a basis for the adoption of local land use ordinances which are not expressly authorized or expressly or impliedly prohibited by other statutes. Several Maine Supreme Court decisions have addressed the issue of whether an ordinance has been implicitly prohibited by the Legislature. In Central Maine Power v. Town of Lebanon, 571 A.2d 1189 (Me. 1990), the court found that a local ordinance relating to herbicide spraying was within the town's home rule authority because it did not frustrate the State's regulatory program. The court found no home rule authority to prohibit the disposal of out-of-town waste within the boundaries of the town in Midcoast Disposal, Inc. v. Town of Union, 537 A.2d 1149 (Me. 1988), holding that the authority to regulate solid waste disposal did not include the authority to totally prohibit certain activities. One type of ordinance commonly adopted under the authority of home rule is a "Site Plan Review Ordinance," which is an ordinance used to regulate developments which normally cannot be reviewed as subdivisions. Usually the planning board is authorized by the ordinance to review the projects which the ordinance regulates.
Subdivision. Title 30-A § 4401 (the Municipal Subdivision Law) requires the planning board to review subdivisions using the criteria set out in the statute. (If the municipality has not established a planning board, then the municipal officers must perform the review in the absence of some other locally-designated review authority.) It also authorizes the board to adopt additional reasonable regulations which are related to and supplement the statutory guidelines. Some municipalities have gone a step further and adopted a subdivision ordinance approved by the legislative body using home rule authority; in those municipalities, the planning board would not have the legal authority to adopt subdivision regulations. For a detailed discussion of how to review a subdivision plan, see the 1987 handbook prepared by the Penobscot Valley Council of Governments. An excellent outline summarizing the Subdivision Law prepared by Portland attorney Christopher Neagle appears in Appendix E of this handbook.
General Zoning Ordinance and Comprehensive Plan. In 1988 the Maine Legislature enacted a comprehensive Growth Management Act. 30-A M.R.S.A. § 4311 et seq. This new law requires every municipality to prepare and adopt (or revise) a comprehensive plan and a town-wide zoning ordinance by specific deadlines. The type of information which must be included in a comprehensive plan and the procedures which must be followed to prepare and adopt the plan and related ordinances, including public hearing requirements, are outlined in the law. Planning boards may be asked to play a role in the implementation of this new law, although the statute requires the municipal officers to appoint a "local planning committee" for the purposes of developing the plan and the zoning ordinance. 30-A M.R.S.A. § 4324. This committee may be the planning board, may include a few planning board members, or may be totally separate. The Office of Comprehensive Planning in the Maine Department of Economic and Community Development (OCP) is required by the law to provide municipalities with financial and technical assistance.
There is little case law in Maine regarding comprehensive plans and the amount of detail required in order to provide a sufficient legal basis for a zoning ordinance. So far the court seems to be giving towns and cities some latitude, but this attitude may change once courts are asked to review plans prepared under the Growth Management Act. Baker v. Town of Woolwich, 517 A.2d 64, 68 (Me. 1987) and LaBonta v. City of Waterville, 528 A.2d 1261, 1265 (Me. 1987).
Title 30-A section 4352 requires all zoning ordinances to be pursuant to and consistent with a comprehensie plan adopted by the legislative body. "Zoning" is defined as a regulation which applies different requirements to different areas of a municipality. Cf., Benjamin v. Houle, 431 A.2d 48, 49 (Me. 1981). Until the adoption of the Growth Management Act, an ordinance such as a typical site plan review ordinance would not fit this definition and would not need to conform to a comprehensive plan. However, the Growth Management Act establishes deadlines by which existing land use ordinances must either conform to a new comprehensive plan or become void. The statutory schedule is as follows: 1) an existing comprehensive plan becomes void 12 months after the date for submission of a new comprehensive plan to OCP if it doesn't comply with the requirements of the Growth Management Act; 2) an existing zoning ordinance not consistent with a plan which conforms to the Act is void 18 months after the date for submission of a new plan unless an extension is granted by OCP; 3) existing subdivision, site review or impact fee ordinances not consistent with a plan conforming to the Act become void 2 years after the date for submission of a new plan; 4) all other land use ordinances or regulations not consistent with a plan conforming to the Act are void after January 1, 1998.
Another important issue related to the adoption and enforcement of a zoning ordinance is the statutory requirement that a map be prepared and adopted as part of the ordinance. 30-A M.R.S.A. § 4352. Failure to adopt a map will render the zoning ordinance unenforceable. Inhabitants of Town of Camden v. Miller, No. CV-89-LU-1 (Me. Dist. Ct. 6, Knox, Nov. 20, 1989).
Shoreland Zoning. During the early 1970s, most towns and cities in Maine either voluntarily adopted shoreland zoning ordinances or had an ordinance imposed on them by the State Legislature through the Shoreland Zoning Task Force under Title 12 § 4811 et seq (now 38 MRSA § 435 et seq). Shoreland zoning ordinances must regulate lands within 250 feet of normal high water of certain water bodies and wetlands but they may also regulate land use activities below the normal high water mark if the municipality adopts appropriate amendments. As a general rule, the planning board has authority to review and act upon at least some of the projects covered by shoreland zoning. (See discussion in Section III.) The shoreland zoning statute states that the planning board may also be designated to enforce the shoreland zoning ordinance.
Title 38, section 438-A(2) requires shoreland zoning ordinances to be pursuant to a comprehensive plan. At least one court has held that for the purposes of shoreland zoning, the ordinance itself constitutes a comprehensive plan. Kunzel v. Inhabitants of Town of Swan's Island, No. CV-84-98 (Me. Super. Ct., Han. Cty, May 17, 1985). However, in light of the compliance schedule established by the Growth Management Act (see earlier discussion), shoreland zoning ordinances eventually will have to be consistent with a comprehensive plan prepared and adopted in accordance with the Growth Management Act.
Any new shoreland zoning ordinance, an amendment to a new or existing ordinance, or the repeal of any shoreland zoning provision must be submitted to the Department of Environmental Protection for approval before it becomes effective. The DEP has 45 days within which to act; if it fails to act, the ordinance/amendment is deemed approved. Once approved by DEP, the new ordinance/amendment is effective as of its date of adoption by the municipality. 38 M.R.S.A. § 438-A(3).
DEP periodically publishes "Shoreland Zoning News," a newsletter devoted to shoreland zoning issues such as expansions of nonconforming structures, changes in the State Shoreland Zoning laws, and other shoreland zoning matters. To receive back issues as well as future issues, contact DEP's Shoreland Zoning unit. Appendix F of this handbook (not included in this "electronic" version) contains excerpts of the newsletters relating to expansions in the Shoreland Zone.
Flood Plain Development. In addition to the regulation of flood plains under a minimum shoreland zoning ordinance, Title 38, section 440 of the Shoreland Zoning Act authorizes municipalities to extend their shoreland zoning ordinances and maps to areas beyond 250 feet of the normal high water mark in order to control problems associated with flood plain development. These ordinances also must be based on a comprehensive plan, but they do not have to be part of a general zoning ordinance. The board may have some role to play in the permit system, if authorized by the ordinance. Some municipalities also have adopted flood hazard building ordinances and federal flood hazard maps under the federal Flood Disaster Protection Act of 1973 in order to enable local residents to participate in the Federal Flood Insurance Program. Again, planning boards may be authorized to administer and enforce these ordinances and generally are involved in reviewing the maps to determine their accuracy.
Typically, shoreland zoning ordinances zone the 100-year flood plain as a resource protection district. The shoreland zoning performance standards governing structures in the flood plain generally require them to be elevated a certain number of feet above flood level. Generally, new principal structures are not allowed at all. Flood hazard building permit ordinances also tend to impose severe restrictions or prohibitions on new and replacement construction in designated flood areas.
Manufactured Housing and Mobile Homes. A number of Maine statutes authorize municipal ordinances regulating mobile homes, mobile home parks, and manufactured housing but place certain restrictions on the nature and extent of those local regulations: Title 30-A § § 3001 ("home rule"), 4401 (subdivision law), 4352 (zoning), and 4358 (manufactured housing); Title 22 § 2499 (licensing and inspection of mobile home parks); and Title 10 § 9001 et seq (Manufactured Housing Act). Title 30-A, section 4358 was originally enacted in response to a series of Supreme Court cases regarding local zoning restrictions on mobile homes. It was amended in 1988 by the Maine Legislature in an effort to deal with Maine's affordable housing shortage. It outlines the basic requirements for ordinance provisions dealing with mobile homes and manufactured housing. Several articles discussing the law appear in Appendix H. The planning board should consult its regional planning commission or council of governments for assistance in determining the best way to comply with this law. Several publications containing sample ordinances are available from the Office of Comprehensive Planning.
Condominium Projects. Generally, condominium projects now must be reviewed as subdivisions under the Municipal Subdivision Law (30-A MRSA §4401). Any local ordinance regulating condominiums must not conflict with the Maine Condominium Act (Title 33, Chapter 31). (That statute deals primarily with how condominiums are created and managed, provides certain protections for purchasers, and establishes rules for the conversion of existing buildings to condominiums.) Local ordinances may not prohibit the condominium form of ownership.
Farmland. Title 7, section 51 et seq. (originally enacted by the Legislature in 1988) prohibits a municipal official from issuing a building or use permit which would allow "inconsistent development" on land of more than one acre if the development will be within 100 feet of "farmland" which is registered with the municipality. The law which defines "inconsistent development" and "farmland" and describes the registration process.
Another statute, 17 MRSA § 2805, protects a commercial farm from being prosecuted by a municipality as a public nuisance if it is operated in conformity with generally accepted agricultural practices as defined by the Maine Department of Agriculture. It also cannot be considered a nuisance if it existed before a change in land use within one mile of the farm and was not a nuisance before the change in land use.
Junkyards/Automobile Graveyards. Title 30-A, sections 3751-3760 impose an obligation on municipalities to license "junkyards" and "automobile graveyards" and to enforce the law against people who are in violation. For the purposes of this law a "junkyard" is defined as follows:
Junkyard. "Junkyard" as used in this subchapter shall mean a yard, field or other area used as a place of storage for:
A. Discarded, worn-out or junked plumbing, heating supplies, household appliances and furniture;
B. Discarded, scrap and junked lumber;
C. Old or scrap copper, brass, rope, rags, batteries, paper trash, rubber debris, waste and all scrap iron, steel and other scrap ferrous or nonferrous material; and,
D. Garbage dumps, waste dumps and sanitary fills.
Automobile graveyard. "Automobile graveyard" means
"a yard, field or other area used as a place of storage, other than temporary storage by an establishment or place of business which is engaged primarily in doing auto body repair work for the purpose of making repairs to render a motor vehicle serviceable, for 3 or more unserviceable, discarded, worn-out or junked motor vehicles as defined in Title 29, section 1, subsection 7, or parts thereof."
Junked motor vehicles are also addressed in another State law which can be enforced locally, Title 17, section 2802, dealing with miscellaneous nuisances.
Automobile graveyards and junkyards also are regulated by the DEP under the Site Location of Development Act (38 MRSA § 481 et seq.) and to a lesser extent by the Secretary of State (29 MRSA § 2448-2461).
Title 30-A section 3754 authorizes municipal ordinances which impose additional environmental standards on proposed "junkyards" and "automobile graveyards." Without such an ordinance, the municipal officers can consider only where the junkyard is located in relation to the road and certain other uses and whether it will be screened from view. Spain v. City of Brewer, 474 A.2d 496 (Me. 1984).
Seasonal Conversion. Title 30-A section 4215(2) requires a permit from the local plumbing inspector before a seasonal dwelling can be converted to a year-round dwelling in the shoreland zone if the disposal system is located within the shoreland zone. A "seasonal dwelling" is defined as "a dwelling which has not been utilized as a principal or year-round dwelling during the period from 1977 to 1981." Listing that dwelling as the occupant's legal residence for the purposes of voting, payment of income tax, or automobile registration or living there for more than 7 months in any calendar year is evidence of use as a principal or year-round dwelling. Before issuing a conversion permit, the LPI must find that the applicant has met one of four conditions.
Access by Handicapped Persons. Title 5, section 4594-B establishes standards for "public accommodations constructed, remodeled or enlarged after January 1, 1988" which are designed to ensure access by handicapped persons. "Public accommodations" means "any establishment which in fact caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from, the general public."
Any one building such a facility is required to obtain certification from a design professional that the construction complies with this law. Before beginning construction, the builder must submit this certification to the municipal official who normally reviews construction plans. If there is no such official, then the municipal officers must review the certification. If construction is normally inspected by a municipal official for compliance with construction standards, then the inspection must include a determination that the proposed construction also conforms to 5 MRSA § 4594-B.
Title 25, sections 2701-2704 also require municipalities to inspect certain buildings for compliance with certain standards of accessibility for handicapped persons and to deny permit applications for buildings that do not conform. A "building" governed by this law is defined as:
a structure to which the public customarily has access and utilizes and which is constructed using State or municipal money; or
a structure specifically intended as a place where 5 persons or more will be employed or as public housing which is constructed using either State or federal money.
Overboard Discharges. Title 38, section 464 generally prohibits the issuance of new overboard discharge licenses. It also establishes stricter standards for the renewal or expansion of existing licenses by DEP. Title 38, section 413 authorizes municipalities to assume DEP's responsibility for licensing, inspecting, and enforcing overboard discharges if certain requirements are met. A model ordinance is available from DEP's Water Quality Bureau.
Driveway Permits. Title 23, section 704 requires a permit from the Department of Transportation or from the municipal officers for new entrances on a State or State-aid highway. The permit is issued by the municipal officers if the driveway will be in the "compact" area, which means an area where structures adjoining the highway are less than 150 feet apart for at least 1/4 mile. 29 MRSA § 252.
Road Setback. Title 23, section 1401 requires structures on land adjoining a State or State-aid highway to meet certain setback requirements from the centerline or edge of the right-of-way.
Swimming Pools. Title 22, section 1631 and 1632 establish a fencing requirement for swimming pools. The law does not clearly state who is responsible for its enforcement.
Minimum Lot Size. Title 12, section 4807 et seq establishes a statewide minimum lot size for land use activities which will dispose of waste by means of a subsurface disposal system. The minimum lot size for new single family residential units (including mobile homes and seasonal homes) is 20,000 square feet. For multi-unit housing and other land use activities, a proportionately greater lot size is required based on a statutory formula. Municipalities may establish larger minimum lot sizes by ordinance under home rule (30-A MRSA § 3001). This law is administered and enforced by the Maine Department of Human Services. An article discussing this law appears in Appendix J (not included in this "electronic" version).
Energy Building Standards. Title 10, sections 1415-C to 1415-E require any new space within certain residential buildings which is actively heated or cooled by a heating, ventilating or air conditioning system and which is built after January 1, 1989 to meet certain minimum thermal performance standards. Any person constructing a single-family residence for his or her own use is exempt, whether that person actually does the work, supervises the work, or hires a general contractor to do the work. Log homes are also exempt. New commercial and institutional buildings constructed after January 1, 1989 also must meet certain standards of energy efficiency.
Signs. Municipalities which want to regulate off-premise signs must comply with minimum guidelines administered by the Department of Transportation under 23 MRSA § 1901 et. seq.
Noise. Title 38, section 482-A (3) authorizes municipalities to adopt noise regulations which are stricter than those adopted by DEP under the Site Location Act.
Solid Waste. Municipalities are prohibited from enacting stricter standards than those contained in Title 38 and in the DEP solid waste management rules "governing the hydrogeological criteria for siting or designing solid waste disposal facilities or governing the engineering criteria related to waste handling and disposal areas of a solid waste disposal facility." Local ordinances regulating solid waste facilities may include reasonable standards regarding other issues such as: "conformance with state and federal rules; fire safety; traffic safety; levels of noise that can be heard outside the facility; distance from existing residential, commercial or institutional uses; ground water protection; and compatibility of the facility with local zoning and land use controls, provided the standards are not more strict than those contained in [Title 38, chapter 13 (solid waste law) and Title 38, chapter 3, subchapter I, articles 5-A and 6 (Natural Resources Protection Act and Site Location Act)] and the rules adopted thereunder." Local ordinances must use definitions consistent with those adopted by DEP. Municipal authority to regulate State-and regionally-owned solid waste facilities is also restricted. Any ordinance adopted by a municipality regulating solid waste facilities must be filed with the DEP within 30 days. 38 M.R.S.A. § 1310-U. As noted earlier, a municipal ordinance may not totally prohibit privately-operated solid waste facilities or the disposal of out-of-town waste. Midcoast Disposal, Inc. v. Town of Union, supra.
Hazardous Waste. Title 38, section 1319-P authorizes municipal ordinances regulating hazardous waste disposal, storage and generation as long as those ordinances are not less restrictive than State law. However, provisions governing "commercial hazardous waste facilities" cannot be more restrictive than or duplicative of State law. 38 MRSA § 1319-R. "Commercial" facilities are defined as "a waste facility for hazardous waste which handles wastes generated off the site of the facility; or a facility which in the handling of a waste generated off the site, generates hazardous waste." See also 38 MRSA §§ 1497 and 1464 relating to radioactive waste disposal.
Coastal Management Policies. According to 38 MRSA § 1801, all coastal municipalities on tidal waters, in regulating, planning, developing, or managing coastal resources, are required to "conduct their activities affecting the coastal area consistent with the following policies to:
1) Port and harbor development. Promote the maintenance, development and revitalization of the State's ports and harbors for fishing, transportation and recreation;
2) Marine resource management. Manage the marine environment and its related resources to preserve and improve the ecological integrity and diversity of marine communities and habitats, to expand our understanding of the productivity of the Gulf of Maine and coastal waters and to enhance the economic value of the State's renewable marine resources;
3) Shoreline management and access. Support shoreline management that gives preference to water-dependent uses over other uses, that promotes public access to the shoreline and that considers the cumulative effects of development on coastal resources;
4) Hazard area development. Discourage growth and new development in coastal areas where, because of coastal storms, flooding, landslides or sea-level rise, it is hazardous to human health and safety;
5) State and local cooperative management. Encourage and support cooperative state and municipal management of coastal resources;
6) Scenic and natural areas protection. Protect and manage critical habitat and natural areas of state and national significance and maintain the scenic beauty and character of the coast even in areas where development occurs;
7) Recreation and tourism. Expand the opportunities for outdoor recreation and encourage appropriate coastal tourists activities and development;
8) Water quality. Restore and maintain the quality of our fresh, marine and estuarine waters to allow for the broadest possible diversity of public and private uses; and
9) Air quality. Restore and maintain coastal air quality to protect the health of citizens and visitors and to protect enjoyment of the natural beauty and maritime characteristics of the Maine coast.
This means that local ordinances affecting land use in coastal areas must contain review standards which will promote these coastal policies.
Small Gravel Pits. Title 30-A, section 3105 requires municipalities to enforce certain minimum standards against "small borrow pits" which do not fall within DEP's jurisdiction. It specifically designates the municipal officers as the enforcers. It also establishes minimum standards which a municipality must incorporate into a local ordinance which attempts to regulate these pits.
Dangerous Buildings. Title 17, sections 2851-2859 authorize the municipal officers to determine that a building or structure is "dangerous" and to order appropriate corrective action either by the owner or by the town in the event that the owner does nothing. Buildings or structures which can be dealt with under this statute must fit within one of the following categories:
- structurally unsafe;
- constitutes a fire hazard;
- is unsuitable or improper for the use or occupancy to which it is put;
-constitutes a hazardous to health or safety because of inadequate maintenance, dilapidation, obsolescence or abandonment or is otherwise dangerous to life or property.
PesticideUse. Title 22, section 1571-U requires a municipality to give notice and a copy of the proposed ordinance to the State Board of Pesticide Control at least 7 days prior to the date of the meeting at which the adoption of an ordinance regulating pesticide storage, use or distribution will be considered. Once adopted, the clerk has 30 days to notify the Board of that fact. Ordinances already in existence also must be filed with the Board. Failure to file and/or comply with the notice requirements makes the ordinance invalid to the extent that it regulates the storage, distribution and use of pesticides.
Forest Harvesting. Any municipality attempting to regulate forest harvesting activities must use definitions of forestry terms in their ordinances which are consistent with those adopted by the Commissioner of the Department of Conservation. Also, when a municipality adopts such an ordinance on or after September 30, 1989, the clerk must file a copy with the Maine Forest Service. At least 30 days prior to the meeting at which adoption of the ordinance will be considered, the clerk must notify the Forest Service and file a copy of the proposed ordinance. After its adoption, the clerk has 30 days to notify the Forest Service of that fact. 12 M.R.S.A. § 8869.
Federal Fair Housing Act. Title 42, sections 3600-3620 of the United States Code arguably preempt State and local land use regulations which discriminate on the basis of handicap or family status. Local ordinances which attempt to regulate group homes for people with physical or other handicaps or shelters for homeless people in a manner different from single family homes may be in violation of this federal law, even though 30-A M.R.S.A. § 4357 appears to authorize different treatment.
Groundwater Protection. Title 38, section 401 expressly acknowledges municipal home rule authority to "enact ordinances ... to protect and conserve the quality and quantity of groundwater."