Legislative Bulletin - September 10, 1999

All legislators have been notified that the deadline is 4:00 p.m. on October 1, 1999 to submit new legislative proposals for the consideration of the 119th Legislature during its second session. What the legislators will have to submit by that deadline is the title of the bill and a summary of the proposal.

Maine’s Constitution limits the legislation that may be considered during any second legislative session to "budgetary matters; legislation in the Governor’s call; legislation of an emergency nature admitted by the Legislature; legislation referred to committees for study and report by the Legislature in the first regular session; and legislation presented to the Legislature by written petition of the electors…".

A record number of 315 bills have already been carried over into the second session, which will make it a busy short session even if no new legislation is submitted. Separate articles in this edition of the Legislative Bulletin highlight two of those carry-over bills, in Education and Taxation, that are especially important to municipal government.

As far as new proposals go, the practical effect of this constitutional limitation is that all new legislation submitted for the second legislation will be screened by the Legislative Council to see if it meets the "emergency nature" standard. The Legislative Council is made up of the ten legislative leaders in the House and Senate. Bills that were already considered during the first legislative session and ultimately rejected cannot be resubmitted to the second session.

Presumably the Council will be looking to understand the immediacy of each new proposal, and if a majority of the Council believes the consideration of the proposal can be deferred until the year 2001, when the 120th Legislature first convenes, then the proposal will not be allowed into this second legislative session of the 119th.

MMA has asked Representative Richard Thompson (Naples), the House Chair of the Judiciary Committee, to submit one proposal before cloture on the municipalities’ behalf. This bill would re-create a process to deal with abandoned personal property (typically mattresses, junky furniture, etc.) that is found in the buildings and structures that a municipality may obtain through foreclosure or as a "dangerous building". There used to be a process detailed in the law, but it was inadvertently repealed with the 1997 enactment of the Uniform Unclaimed Property Act, and municipalities are now left without guidance. Rep. Thompson has agreed to put the legislation into the hopper, although nothing guarantees that it will get through the screen of the Legislative Council.

Taking into account the fact that the screen is tighter this time around than it is with an "anything goes" first legislative session, any municipal official who believes a legislative initiative of some kind should be submitted this session should discuss the matter with your area legislators or the State and Federal Relations staff at MMA. October 1st is fast approaching. (GH)

In early August the Department of Transportation (DOT) sent each municipality a letter describing the Minor Collector Road Program. As described in detail in the July edition of the Maine Townsman, this new voluntary program enables municipalities to match their rural road funds with additional state money in order to make improvements to the state’s minor collector road system. The formula requires the state to match $2 for each municipal dollar reserved for minor collector road improvements.

It is important to note that this change pertains only to improvements on minor collector roads and not to the maintenance. The state continues to be responsible for ongoing summer maintenance, while the municipalities will continue to provide the winter maintenance on minor collector roads. The matching formula pertains to capital improvements beyond annual maintenance.

The intent of DOT’s letter is to determine how much money the state will need to raise in order to meet municipal demand. If you think in the next 5 to 10 years your municipality will be interested in a minor collector road project, please inform DOT. This notification will set the program in motion, enabling the state to raise the correct amount of matching funds.

Also, please be aware that although you may have miles of minor collector roads in your municipality, the program is available for repairs to sections of roads. For example, if you have a minor collector road that is for the most part in good condition and only one-quarter mile is in need of improvements, inform DOT of this need. This program has been designed in order to meet the needs of municipalities without undertaking costly and needless construction.

As of September 8, 1999 the Department of Transportation had received information, regarding interest in participating in the Minor Collector Road Project, from 138 municipalities. Sixty-nine (69) municipalities have indicated an interest in investing $11.28 million on 488.82 miles of minor collector roads. Thirty-six (36%) will be administering the reconstruction projects locally.

If you haven’t responded to DOT’s request for information, it’s not too late. Please send any information you may have as soon as possible.

If you have any questions about the Minor Collector Road Program or any of the changes made to the Local Road Assistance Program, please contact Kate Dufour at 1-800-452-8786. (KD)

A central goal in MMA’s 1999-2000 legislative agenda was to increase what municipal officials describe as the "accountability" of the school budget development, adoption and implementation process.

The reasons for friction between the municipal and school officers is obvious. The largest single component by far of any municipal budget is the property tax commitment devoted to K-12 public education, and in most municipalities the line in the budget for education is much larger than all the other lines in the municipal budget combined. At the same time, the impact of high or unaffordable property taxes is borne by the selectmen, councilors and municipal officials, who must collect the taxes for the schools and deal directly with the human impact. It is the municipal officials that are often held up to criticism for the high property tax burden or sharp property tax increases by some citizens, taxpayer groups, legislators and administration officials in Augusta.

Human beings can be fickle, though. They are capable of simultaneously demanding a service and complaining about its high cost. Similarly, the entire local electorate as a block can be of two minds, with one active group of voters paying a lot of attention to the school board in an effort to improve or expand the educational program and another group of voters paying a lot of attention to the municipal officers in an effort to control tax increases.

The growth of the educational demand on the property tax relative to the municipal demand is an obvious concern for municipal leaders who may have to sacrifice municipal programs they believe are important simply to accommodate the school budget. It is also the case that municipal officials would like school board members and school officials to be more sensitive to the property tax impacts of their decision-making. Some municipal officials are even calling for the school administration to be directly exposed to the taxpayers by sending out their own tax bills.

But beyond these concerns, it is not the relative size of the school budget that most bothers municipal officials. It is the taxpayers’ money, after all, and the voters’ decisions will be respected. What the municipal officials are seeking in their quest for "accountability" is a school budget development, adoption and implementation process that:

Furthermore, when the school budget is being implemented (if it is not otherwise controlled by line-item categories), the municipal officials would like to ensure that significant sums are not transferred from one functional category to another. From the voters’ perspective, such "line item transfers" are demeaning to the appropriations process.

In an effort to make some progress on this issue, MMA asked for two initiatives to be introduced to the 119th Legislature. One of these bills would have required a simple line-item format for school budgets unless the voters decided otherwise. This would invert current law which effectively requires a gross budget format as the norm and makes the voters petition for a line-item format, at least in the district systems. The other MMA bill, LD 1346, would disallow the SAD directors from overturning a decision of the voters to adopt their district budget by referendum. State law currently allows the directors to call an open budget meeting whenever the SAD budget fails to be enacted at the ballot box even when the electorate has voted to consider the SAD budget by the referendum method. From the municipal perspective, the restoration of the voters’ choice on the method of adopting a budget is a simple matter of voters’ rights.

The Legislature’s Education Committee carried over LD 1346 into the second legislative session and asked the State Board of Education, in the interim, to put together a working group for the purpose of reviewing many of the issues that underlie the municipal-school and school-voter frictions, particularly in the school district systems (SADs, CSDs). Jim Rier, the Chair of the State Board of Education, recently appointed that 10-member panel and the group’s first meeting was held on September 8 at MMA. Please refer to a sidebar for membership of the School Governance Committee.

The kick-off gathering of the School Governance panel was primarily an organizational meeting. Introductions were made, overviews of the law that applies to the SAD budget adoption process were provided, and an attempt was made to focus on the legislative charge given to the Committee. The laundry list of issues the Committee will be reviewing includes: the procedures for SAD and CSD budget approval; the voting procedures for other school structural issues (such as the within-district cost-sharing formula or the withdrawal process from a district or union); school-municipal collaboration opportunities; school board authority vs. voter authority with respect to non-budgetary school policy matters; inconsistencies in current school law; and how to develop good school-municipal-community dialogue. With approximately three months in which to develop a report, one conclusion of the September 8th meeting was that the Committee is going to avoid getting bogged down in some of the listed issues so that it can focus on the centerpiece concern which related to the rights the majority of the voters have in a school district to choose the method by which they will consider a proposed school budget, and what happens in the event the school budget is rejected in whole or in part by those voters. Related subjects of discussion will be how to improve the quality of communication that occurs prior to the actual budget adoption event and how to improve the level of trust between and among the municipal officials, the school officials, and the voting public.

The School Governance Committee’s next four meetings are scheduled for September 28, October 19, November 16, and December 7.

On a parallel track. In a separate effort, the Department of Education has organized an opportunity for some municipal officials and some school officials to enter into a facilitated discussion regarding the core frictions in the municipal-school relationship. There are similarities and differences between the Education Department’s effort and the work of the School Governance Committee. As discussed above, the State Board’s working group has a greater focus on the school district structure and the specific legislative proposals. The Department of Education’s facilitated process will more likely begin with a general review of the core differences in perspective between municipal and school officials and move from there to the identification of areas of common ground and specific solutions.

The Department of Education’s facilitated discussion is scheduled for Monday, September 20th. MMA Executive Committee members George Campbell (Portland City Councilor) and Gary Brown (Vassalboro Town Manager) will be at the table with MMA staff representing the municipal perspective. From the school side, Superintendent Stan Sawyer (SAD #52, Greene, Leeds and Turner) and Bangor School Board member Phyllis Shubert will join staff members from the Maine School Management Association. The Department of Education and the State Board of Education will also have representatives at the table. (GH)

"Sprawl" is the popular term for shifting patterns of land development characterized by reduced population in the cities and increases in areas that traditionally have been rural. It’s as if someone pulled the plug on the cities and the movement of population is flowing along the roadways, saturating open space and farms with new subdivisions to accommodate housing needs. Once installed in their new rural homes, the former "city folk" want the services they are used to receiving from municipal government, services that are not typically provided by rural municipalities.

Sprawl and its proposed countermeasures, growth management, land use planning and "smart growth", are currently receiving a tremendous amount of attention from all levels of government, as well as planners and citizens. Shifting development patterns impact or involve many issues, including: transportation; tax policy; municipal ordinances; historic preservation; capital investment and incentives; education; environmental quality and regulation; comprehensive planning; business assistance; intergovernmental coordination; public land acquisition; state funding formulas; urban design; and right to farm law. SFR staff hopes to stay informed on as many of the anti-sprawl efforts as possible and to convey the essence of these efforts to interested municipal officials.

The listing below describes the Maine sprawl efforts currently in SFR’s awareness, though there likely are and will be many others.

Group Name	Lead Organization	Last/Next Meeting	Efforts
Maine Smart Growth Forum	Eco-Eco Forum on Sprawl	8/27/99	Most recently has established subcommittees for "Rural Places" (keeping rural lands active and healthy), "Fast-Growing Suburbs" (comprehensive plans, services, tax pressure on residents), "Consumer Demand" (housing market and housing choices), and "Service Centers" (investment in services centers and state funding formulas that favor sprawl).
Development Tracking Project	State Planning Office (SPO)	8/27/99	In order to evaluate the ten years of the Growth Management Program, SPO hopes to develop a geographical information system to be used at the municipal, regional and state levels to record, monitor and analyze development trends. The first meeting (8/27) focused on brainstorming uses for and sources of the data.
LD 1457, An Act to Decrease Restrictions on the Sale of Land	SPO/MMA	TBA	The Legislature’s Natural Resources Committee held this bill over and asked SPO and MMA to look at subdivision laws and make recommendations for allowing small parcel sales without contributing to sprawl. SPO and MMA anticipate holding regional meetings to gather information.
New England Municipal League Partnership for Smart Growth	Connecticut Conference of Municipalities, and MMA	NA	EPA’s Livable Communities Grant Program application. Goals: gather smart growth and environmental information from local officials and community residents and incorporate it into MMA web site; develop municipal web site templates; train municipal officials in use of smart growth information provided through templates.
Community Sustainable Development Where it Counts in Maine Communities	Maine Development Foundation	NA	EPA’s Livable Communities Grant Program application. Goals: to build capacity for community sustainable development among volunteer community leaders: selectmen, planning board members, chamber board members, school board members, church leaders, and environmental leaders through a series of four workshops clustered around service centers.
Governor’s Cabinet Subcommittee for Sprawl	Commissioner John Melrose, Maine Department of Transportation	9/22/99	?
Maine Brownfields Initiative	SPO (Eric Carson)		EPA program aimed at reclamation and redevelopment of previously developed property.
Land for Maine’s Future Board	SPO (Mark DesMeules)		Acquires lands of statewide significance for recreation and conservation.
New Neighbors Program	Maine State Housing Authority (Lisa Lavigne)		Program currently restricted to Portland, Lewiston and Bangor. Assists in acquisition and repair of property in economically distressed areas. Contributes to downtown revitalization.
LD 449, An Act Requiring Disclosures to be Made to Purchasers of Land Abutting Agricultural Land.	Department of Agriculture	8/27/99 10/13/99	Report due to Legislature 1/14/2000. Originally, this bill would have required real estate disclosure to purchasers of land abutting farms. The bill was held over as a vehicle to examine: 1) current Right to Farm law and how it might be strengthened; 2) existing farmland adjacency law; real estate disclosure mechanisms; 4) potential links with tax law, zoning, and sludge spreading licenses; and 5) coordination of state and local land use regulatory authorities.
Res. 63, Establishing the Task Force on State Office Building Location, Other State Growth-related Capital Investments and Patterns of Development	Legislative Task Force staffed by the Office of Policy and Legal Analysis (OPLA)	9/17/99	Report to Legislature due 12/15/99 dealing with: 1) the role of state office buildings in viability of service centers (LDs 1080 and 1414); 2) fiscal policies driving sprawl (LD 544); 3) transportation planning and regulations; and 4) productive use of farms and woodlands and preservation of open space (LD 449).
Res. 81, Establishing a Task Force to Study the Need for an Agricultural Vitality Zone Program.	Staffed by OPLA, the Department of Agriculture, and SPO		Report to Legislature by 12/1/99 recommendations for strategies or measures that will benefit and expand the State’s small-scale agricultural enterprises.

For the past 20 years Maine law has required the Taxation Committee to perform a periodic review of the law governing property tax exemptions. The first reviews were scheduled to be completed by January 1, 1979 and January 1, 1984. After 1984, the review was to have been conducted on a 4 year rotation. In addition to merely reviewing the law at the Committee level, the full Legislature is charged with issuing a detailed report regarding the state’s policy on tax exempt property, including:

Apparently, this charge to perform a review of these statutory provisions fell by the wayside during the 1990’s because the last report filed with the Legislature was written in December 1987. The upshot of that report is a recommendation, in the form of legislation, that the state pay to the host municipalities 50% of the tax obligation that would be required of state property if it were not made completely exempt from taxation by statute. At the time, the total value of state property was recorded as $514 million and the average mill rate was 17.16, yielding a fiscal note on the bill (at the 50% reimbursement rate) of $4.5 million a year. Plugging in the most recent numbers ($758 million of state property, full-value mill rate of 17.34), and using the same method of calculating the fiscal note (which is probably flawed because much of the state property is located in higher-than-average mill rate communities), the fiscal note today would be $6.57 million. This legislative initiative was never enacted into law.

If the 1992 and 1996 opportunities to review exemption policy have been lost, the Taxation Committee has no intention of shirking its responsibility this time around. On the contrary, the Committee met on August 25 for the purpose of organizing at least four meetings between now and late November to undertake its charge of thoroughly reviewing the exemption statutes.

At the start-up meeting, the Committee’s analyst, Julie Jones, oriented the panel as to its statutory responsibility and provided it with copies of the 1987 Committee report, a listing of the most recently recorded "costs" of the various exemptions, the executive summary of a 1996 Commission to Study the Growth of Tax Exempt Property, and the report of the 1998 "Reviving Service Center" Task Force, which includes a number of recommendations to alleviate the impact of concentrated exemption in the state’s regional hub communities.

Maine Revenue Service’s Larry Record provided the Committee with the most recent 1998 Municipal Valuation Return Statistical Survey which provides the panelists with a full accounting of the exempt property by separate category in each municipal jurisdiction. MMA also made an introductory presentation to the Committee, outlining some of the municipal issues with the state’s policy on property tax exemptions and some of the recently introduced legislative initiatives designed to provide solutions.

One bill on the subject that the Committee carried over into the second legislative session is LD 1940, An Act to Create Standards of Eligibility Governing Certain Tax-exempt Organizations and to Phase in a Reduction of the Rate of Exemption to Reflect the Cost of Providing Essential Municipal Services. Sponsored by Senator Beverly Daggett (Kennebec Cty.), this bill was developed by MMA’s Legislative Policy Committee to address the two most frustrating elements of the state’s policy on property exemptions from the municipal perspective: (1) the fundamental lack of standards governing the eligibility of "charitable" organizations for the exemption; and (2) the financial implications on the local level that occur when 15%, 20%, 25% or even higher amounts of property in a community is forgiven any obligation to contribute to the public trust.

Although the organizational meeting was not designed to provide for deliberation or decision-making on the part of the panelists, after the presentations several Committee members characterized the state’s policy on property exemptions as "dormant", as though it had been developed "in a vacuum" or "unconsciously". Senate Chair Dick Ruhlin (Penobscot Cty.) expressed an interest in formulating a coherent state policy on the subject, however that might come out and even if only to affirm the current body of law, because the policy of tax exemption and its impacts is too serious to be allowed to develop without oversight.

To complete its task, the Committee has scheduled afternoon meetings on September 15, October 6 and 20, and November 3 and 17. (GH)

Maine’s solid waste laws require the State Planning Office to establish a broad-based task force, at least every five years, to review state solid waste management policy. Last spring the Legislature revisited and reinvigorated that law by adding more specifics to the charge given to the task force, including:

In accordance with the legislative direction, the State Planning Office has organized a task force of nearly 40 participants who are directly responsible for, or interested in, solid waste disposal, transportation, recycling and management.

From the municipal perspective, one of the major issues to be taken up by this working group is the proper role of municipal home rule authority with respect to the siting of solid waste disposal facilities. Municipalities are already significantly preempted with respect to the technical standards of review that a municipality may employ when a solid waste facility applies for a permit. On the other hand, a municipality’s authority to create land use zones within its boundaries where landfills may and may not be constructed is not impaired by state law.

At the first meeting of the task force on August 4, an attorney for the Pierce Atwood law firm that represents a number of businesses in the solid waste industry went on the record to say that municipal zoning authority should be completely pre-empted so that existing solid waste landfills can expand into local land use districts that do not allow them. The law firm wants to make sure that a zoning preemption is considered by the task force. The Pierce Atwood position is apparently in response to the decision of the voters of Hampden not to expand a land use zone to accommodate the interests of the commercial landfill there.

Another major issue facing the task force is analysis of the "trigger" for development of the state-owned Carpenter Ridge landfill site. The site is permitted and licensed but the timing of the two-year construction project will be examined in light of remaining capacity at other sites. A related topic is how the construction would be financed given that use of the facility may be sporadic and not likely to provide a steady revenue stream.

The task force will also consider the development of commercial solid waste facilities and the economic competitiveness of commercial facilities. The current ban on development of commercial disposal facilities has helped minimize the transport of out-of-state wastes into Maine, but that protection may have come at a cost to the consumers in Maine who need to dispose of their trash. With only two commercial landfill operating, the relationship between price and competition becomes worthy of review.

The original charge to the Waste Management Agency was to establish regional landfills, but siting problems narrowed the field to just one facility. With increasing transportation costs, the possibilities for siting regional facilities will be reexamined, along with the roles of regional associations.

Even the solid waste management hierarchy (Reduce, Reuse, Recycle, Compost, Incinerate, Landfill) will be scrutinized against today’s realities.

During the second task force meeting in late August, DEP’s David Linnett articulated the core issue around which the whole discussion necessarily revolves: do we believe that control of solid waste is a proper governmental function? Or, as refined by the group: What should the State’s role be in movement of solid waste into, out of, and within its jurisdiction? The task force will need to restructure the debate to resolve this question before it can determine the appropriateness of any state policy concerning solid waste. (LL)

Several bills have been introduced to the Legislature over the past few years that would change existing law as it pertains to the retention of a public easement when local roads are discontinued, either formally or by abandonment. Two bills were introduced to the Legislature this year. One bill, LD 1014, An Act to Allow Private Maintenance of Public Easements, was voted "ought not to pass" by the State and Local Government Committee, while LD 1849, An Act to Amend the Laws Governing Public Easements and the Discontinuance of Town Ways, was carried over by the Committee to the second legislative session.

The Committee carried over LD 1849 in order to obtain the information necessary to determine what aspects of the public easement laws are of concern to different interest groups. At the request of the Committee, MMA organized a working group consisting of a variety of interested parties. The charge to the working group was to generate a list of concerns and potential solutions.

The first meeting of the Public Easement Working Group was held on August 26th at MMA. Those participating in the meeting included representatives from the State and Local Government Committee, paper industry, Central Maine Power Co., Department of Transportation, Small Woodlot Owners Association of Maine (SWOAM) as well as interested citizens. The meeting began with introductions and concluded with a draft list of concerns and potential solutions.

Although some of the participants have historically been at odds with each other, the meeting progressed smoothly with all parties having the opportunity to express their concerns and frustrations. Some of the concerns raised included liability issues for private maintenance of public easements and whether municipalities should be responsible for maintaining public easements on discontinued or abandoned roads. Some solutions that were suggested includeating a road class system with varying maintenance standards and posting public easements as limited access roads.

The working group’s next meeting will be on October 4 from 9-12 at MMA. The group will continue to work through its list of concerns and solutions and begin to take position on each issue. (KD)

All municipal officials should have received a memorandum from DEP’s Ted Wolfe, dated August 31, 1999, concerning changes to Maine landfill law. The changes to solid waste law are focused on the state-local cost sharing system when remediation efforts are necessary to correct a closed, but polluting landfill. Typically, remediation includes drilling a well or a community well and piping system to replace private polluted wells. The law changes may have a significant impact on municipalities involved in the remediation cost share program because the State’s share of those costs will drop at least from 90% to 50% for "eligible" municipalities with respect to the remediation of any structure (e.g. well) that is constructed after January 1, 2000. The existing, 90% state cost share system will continue to apply to structures built before January 1, 2000. "Eligible" municipalities will be those that take steps to forestall development after December 31, 1999 that could be adversely affected by landfill contamination. Municipalities that fail to take these steps will receive no reimbursement for remediation costs associated with post January 1, 2000 property.

Steps that will satisfy the requirements for cost share eligibility will be defined by rulemaking later this year. The draft rule is likely to describe requirements that include such things as monitoring for off-site migration of contaminants, adoption of limiting ordinances, planning and permit processes that consider landfill impacts on proposed development, and notification of abutters of the potential for contamination. DEP will mail a copy of the draft rule to municipal officials for review and comment later this year. (LL)