Legal: Comprehensive Plans and Zoning Ordinances
(from Maine Townsman, March 1991)
by Ellerbe P. Cole


Maine law has provided for some years that a zoning ordinance must be pursuant to and consistent with a comprehensive plan adopted by the municipal legislative body. The current requirement is 30-A MRSA Section 4352(2).

"Zoning" means the division of a municipality into districts and the prescription of and reasonable application of different regulations in each district. 30-A MRSA Section 4301(15). "Comprehensive plan" (in this Note, a "complan") is currently defined at 30-A MRSA Section 4301(3), and is extensive (it incorporates other parts of the growth management law) and so is not restated here.

"Municipal legislative body" means the town meeting in a town, the city council in a city, and that part of a municipal government that exercises legislative powers under a law or charter. 30-A MRSA Section 2001(9).

The Maine Supreme Judicial Court (in this Note, "the Court") has held that "A primary precondition of any zoning ordinance is the adoption by the municipality of a comprehensive plan, with which that zoning ordinance must be consistent." Robinson v. Board of Appeals, Town of Kennebunk, 356 A.2d 196, 201 (Me. 1976) (citing former zoning statute and Wright v. Michaud, 160 Me.164, 200 A.2d 543 (1964)). The Court has said that "the requirement that zoning be consistent with a comprehensive plan was intended to avoid 'ad hoc, unplanned, and potentially arbitrary zoning." Robinson, at 200 (quoting

Issue and discussion

A common issue in litigation is whether a zoning ordinance is indeed pursuant to and consistent with a complan. This Legal Note reviews some of the pertinent cases.

Is it indeed a zoning ordinance? When a party to a lawsuit argues that a zoning ordinance (or amendment thereto, including a rezoning) is inconsistent with a complan, a fair question is whether the ordinance in question truly is a zoning ordinance. In two cases the Court has found that the ordinance in question was not a zoning ordinance. In a third, the court avoided the basic issue by assuming for the sake of argument that the ordinance was a zoning ordinance and then finding that it was indeed consistent with the complan.

In the first case, the Court found that a Boothbay ordinance regulating all off-premise billboards in the town and holding them to the same standard constituted an exercise of the municipal police power and, implicitly, not a zoning ordinance. Town of Boothbay v. National Advertising Co., 347 A.2d 419 (Me. 1975). "Police power" ordinances are those enacted in the interests of public health, safety, and welfare. The standard of review of such ordinances is usually the relatively easy constitutional test of whether the object they pursue is a legitimate governmental purpose and whether the means selected to serve that object are reasonably related to the goal. In Benjamin v. Houle, 431 A.2d 48 (Me.1981), the Auburn ordinance at issue prohibited the removal of gravel from any land in the city. The Court characterized that ordinance as "a general and uniform city-wide regulation" and not in any respect a zoning ordinance.

More recently, in Stewart v. Inhabitants of Town of Durham, 451 A.2d 308 (Me. 1982), it was argued that an ordinance forbidding (with certain grandfathering) any mobile homes except those located in mobile home parks—an ordinance unlawful today under 30-A MRSA Section 4358(2)—was a zoning ordinance rather than a uniform town-wide regulation. It was further argued that, as such, it had to be consistent with the complan, but in fact was not. It was argued that it was a zoning ordinance because it implicitly created a new division or zone (mobile home parks) in addition to the "rural" and "resource protection" zones which had already been created by the town's land use ordinance. The Court did not address this head-on but held that, assuming (without deciding that the mobile home ordinance was "truly" a zoning ordinance within the definition now appearing as 30-A MRSA Section 4301(15), the lower court's conclusion (that the ordinance was indeed pursuant to and consistent with the complan) was warranted by the evidence before it.

Sufficiency and validity. In a 1987 case it was argued that Woolwich's complan was not "sufficient and valid," that it was therefore invalid, and that in consequence a zoning ordinance enacted pursuant to it was also invalid. The Court, without accepting the argument, reviewed the plan to determine its sufficiency and validity, a determination which the lower court had already made. The Court said that "Although the Town's [complan] is far from being a model of elaborate detail, we cannot say that the legislature expected anything more from each and every town of the state, however small" and that "On its face the [plan] complies with the directions of [Title 30] section 4961." Baker v. Town of Woolwich, 517 A.2d 64, 68 (Me. 1987). The Court took pains to say "We should not be understood to accept Baker's argument as to the consequences of a [complan] that is not sufficient and valid." 517 A.2d at 68.

Thus the Court left open several questions, which remain open. Is an insufficient plan invalid as a matter of law, and, if so, is it invalid in its entirety or only in the particular respect in which it is insufficient? If invalid in part or entirely, does that invalidate a properly enacted zoning ordinance?

We can see from Baker that the Court will look to the statutory definition of a complan and to the plan itself to determine sufficiency and validity, at least if by doing so (and finding sufficiency and validity) it can avoid deciding a Baker-like argument. It should be borne in mind that former Title 30 MRSA Section 4961's definition of a complan contained many fewer specifics than the present 30-A MRSA Section 4301(3).

Thus, if a court were to undertake a sufficiency and validity determination under the present statute, its review might well take more of the form of a checklist, and be a bit more exacting than the review under the former statute was in Baker. Unquestionably a court will not make the review a simple matter of arithmetic and checkmarks, but will make an overall determination on the plan as a whole; still, the checkmarks will very likely have cumulative weight in the determination. However, it should be noted that the growth management law permits but does not require a "local growth management program" to be submitted for review by the Office of Comprehensive Planning (OCP), which can issue a certificate that the program is consistent with the goals and guidelines established by the growth management law. 30-A MRSA Section 4343(5). It seems reasonable to believe that courts will give great deference to such determinations by the administrative state agency. Thus a certificate may be a good line of defense against attack on the ground of legal insufficiency of a plan. (See further comment, below.)

Burden of proof. The party challenging a zoning ordinance or a complan has the burden of showing an inconsistency between the plan and a zoning ordinance. LaBonta v. City of Waterville, 528 A.2d 1261,1265 (Me. 1987) (rezoning of portion of city by city council).

Test for consistency. The test for the court's review has been whether the legislative body that enacts a zoning ordinance or amendment thereto, from the evidence before the legislative body at the time of its action, could have determined that the ordinance or amendment was "in basic harmony" with the complan. LaBonta, at 1265. This appears to be a rather low and easy standard, but with growing sophistication over time courts might elevate it a bit.

Focus. In reviewing the record before the 29 legislative body, courts will not substitute their judgment for that of the legislative LaBonta, at 1265.I.e., courts will not weigh or determine the wisdom of the complan or any of its detail, but will look solely at consistency, as being the dispositive issue.

Inconsistency in part or in entirety? Will courts entertain arguments that a zoning ordinance is inconsistent with particular parts of a complan (rather than with all of the plan, or with the plan taken as a whole), and, if so, how will it answer them?

In LaBonta v. City of Waterville (cited above) the plaintiffs argued that a zoning amendment which rezoned a part of the city from residential to commercial was invalid because it was inconsistent with the complan's stated goal of protecting residential neighborhoods. The Court determined that such protection was but one of the plan's goals, and that the plan emphasized the need to expand economic opportunity and to provide adequate space for commercial development. The Court quoted a portion of the plan that seemed to reason that by allowing commercial development in certain areas of the city other parts might entirely be spared pressure for commercial uses. The Court concluded that, faced with multiple goals, the City Council was "not required to refrain from permitting any intrusion whatever upon an area previously zoned residential." 528 A.2d, at 1265. On the evidence before it, the Court concluded that the City Council could justifiably have concluded that the zoning change was in basic harmony with the complan "because the change struck a reasonable balance" among the city's various zoning goals. 528 A.2d, at 1265.

Thus, it appears courts will listen to an "inconsistent in part" argument, but in addressing it will look to the complan in its entirety.

Other comments. Plans adopted pursuant to the new law should be reviewed under the new law. The growth management law provides that "No [complan] or amendment to a [complan] adopted by a municipality between August 4, 1988 and the applicable date established [for the town by the law] may be found to be void before the date established...for failure to comply with this subchapter [with one exception concerning public hearings]." 30-A MRSA Section 4343(1-A). Presumably, plans adopted under earlier law will be reviewed for sufficiency under that law.

We can infer from LaBonta that a town's zoning maps will not be required strictly to conform to the land use area maps shown in a complan. The latter are a plan or guide, while the former are the specification of the implementation of the plan. Implementation can change over time as long as it is consistent with the underlying goals.

Note that an OCP decision on certification of consistency of a growth management program (which includes the complan) constitutes a final agency action. 30-A MRSA Section 4343(5)(H). For that reason, a municipality should not lightly apply for a certificate. Once an adverse decision is rendered, a municipality should make a prompt determination whether to accept the decision and remedy the plan (and reapply for certification) or whether to appeal the adverse decision. A failure to appeal coupled with a failure to remedy any defects may result later in a holding that the town is barred from arguing that its plan is sufficient. See, Crosby v. Town of Belgrade, 562 A.2d 1228 (Me. 1989) (a final adjudication in an administrative proceeding has the same preclusive effect as final adjudication in a former court proceeding).

It may be helpful to anticipate attacks on the ground of insufficiency by inserting in complans a final clause akin to the "severability" clause found in many local ordinances. Such a clause would state that the Town's intent in adopting the plan is that should any part of the plan be held by a court of competent jurisdiction to be insufficient to meet the requirements of the growth management law, the remainder of the plan shall not be affected thereby but shall continue in full force and effect.