Sidebar: Building Code Mandate?
(from Maine Townsman, May 2008)
Effective dates. Emergency legislation became effective on the date it was signed by the Governor. If the new law was an emergency measure, it is so-noted after the Public Law citation.
Non-emergency legislation becomes effective 90 days after adjournment of the legislative session in which it was enacted. There will be two effective dates this year because the Second Regular Session of the 123rd Legislature adjourned for technical reasons on March 31, 2008, then was called back in for a special session, which adjourned on April 18, 2008.
Accordingly, the effective date of non-emergency legislation that was enacted on or before March 31, 2008 will be June 30, 2008. If the new law was enacted on or before March 31, 2008, the June 30th effective date will be noted after the Public Law citation.
The effective date of non-emergency legislation enacted on or after April 1, 2008 will be July 18, 2008. In the legislation summaries provided below, these laws are identified only by their Public Law citation.
Enactment Date Effective Date
On or Before March 31, 2008 June 30, 2008
On or After April 1, 2008 July 18, 2008
Emergency Legislation Effective when signed by Governor
Mandate preamble. Legislation enacted with a "mandate preamble" contains the following language: "This measure requires one or more local units of government to expand or modify activities so as to necessitate additional expenditures from local revenues but does not provide funding for at least 90% of those expenditures. Pursuant to the Constitution of Maine, Article IX, Section 21, two-thirds of all of the members elected to each House have determined it necessary to enact this measure." If the new law was enacted with a mandate preamble, the fact that the Act is a mandate is noted along with its Public Law citation.
Agriculture, Conservation & Forestry
LD 1684 – An Act To Create the Maine Agriculture Protection Act. (Sponsored by Sen. Sherman of Aroostook County.) Emergency enacted; PL 2007, c. 649 (4/18/08)
This emergency Act moves the body of law governing the circumstances under which a farm or agricultural operation can and cannot be considered a "nuisance", as well as the degree to which municipal ordinances are enforceable with respect to agricultural operations, from the title of Maine law regarding crimes to the title of Maine law regarding agriculture. This Act also establishes an 11-member Commission to Study the Protection of Farms and Farmland and directs the Commission to develop farmland protection recommendations. The Commission includes one member representing municipal interests appointed by the Speaker of the House. The Commission must submit its findings and recommendations to the Legislature by November 5, 2008.
LD 2087 – Resolve, To Study the Feasibility of a Public Dock on Mooselookmeguntic Lake. (Sponsored by Rep. Carter of Bethel.) Finally passed; Resolves 2007, c. 184
This Resolve directs the Department of Conservation, in partnership with other associations and individuals, to study the feasibility of establishing a dock for public use on Mooselookmeguntic Lake in the Rangeley/Rangeley Plantations area.
LD 2171 – An Act To Amend the Animal Welfare Laws. (Sponsored by Rep. Pieh of Bremen.) Enacted; PL 2007. c. 702
This Act makes a number of changes to Maine's animal welfare laws. Among the changes that are most pertinent to the duties of municipal clerks, animal control officers and other municipal officials, this Act: (1) expands the definition of "breeding kennel" to include a location where more than 16 dogs or cats raised on the premises are sold to the public in a 12-month period; (2) clarifies that a "dangerous dog" does not include a dog that bites or threatens to assault an individual when that dog is on the dog owner's property, had no prior history of assault, and is provoked by the person who is the recipient of the bite or threatened assault; (3) defines the term "humanely clean conditions" as that term applies to the inspection of a kennel; (4) adds to the "cruelty to animals" list the circumstance where an animal is confined in an enclosure of any kind in such a way that extreme heat or cold will be harmful to the animal's health; and (5) authorizes a law enforcement officer, humane agent or animal control officer to take all steps reasonably necessary to remove an animal from a motor vehicle if the animal's health or safety is in immediate danger from heat, cold or lack of ventilation.
Appropriations & Financial Affairs
LD 305 – Resolve, To Investigate the Possibility of Expanding Cellular Telephone Service in Certain rural Areas. (Sponsored by Rep. Jackson of Allagash.) Finally passed; Resolves 2007, c. 212
This Resolve directs the Department of Administrative and Financial Services (DAFS) to investigate the possibility of negotiating with providers of cellular telephone service for use of the state-owned tower located in St. Francis, in Aroostook County, for the purpose of expanding cellular telephone services in northern Maine. DAFS is required to report the results of its investigation to the Appropriations Committee by January 15, 2009.
LD 2289 – An Act To Make Supplemental Appropriations and Allocations for the Expenditures of State Government and To Change Certain Provisions of the Law Necessary to the Proper Operations of State Government for the Fiscal Years Ending June 30, 2008 and June 30, 2009. (Sponsored by Rep. Fischer of Presque Isle.) Enacted; PL 2007, c. 539 (6/30/08)
This Act is the supplemental state budget for FY 08-09 designed to bridge a $200 million gap between projected state revenues and expenditures. The five elements of the supplemental state budget directly related to municipal government are: (1) a $34 million reduction in the amount of General Purpose Aid to Education for FY 09 relative to the amount scheduled for distribution (from $1.017 billion to $983.5 million); (2) a complete sweeping of the Local Government Efficiency Fund for both FY 08 and FY 09 so as to effectively shift $5 million of municipal revenue sharing resources into the state's General Fund; (3) eliminating comprehensive planning grants for FY 09 by deappropriating $150,000 from an account in the State Planning Office; (4) increasing certain benefit levels for certain households receiving benefits through the federal-state Temporary Assistance for Needy Families (TANF) program, which is projected to reduce state-local General Assistance costs by $1 million; and (5) amending the formula that determines an applicant's eligibility for "Circuit Breaker" property tax and rent rebate benefits by fixing the maximum amount of property taxes that the calculation will recognize at $3,000 for individuals and $4,000 for multi-person households. Previous law required those values to be annually indexed for inflation. [Note: this change to the Circuit Breaker program was subsequently repealed and replaced (see LD 2305, under Taxation).]
Business, Research & Economic Development
LD 1038 – Resolve, Directing the Department of Professional and Financial Regulation To Study the Issue of Residential Contractor Licensing. (Sponsored by Rep. Hinck of Portland.) Finally passed; Resolves 2007, c. 219
This Resolve directs the Department of Financial and Professional Regulation (DFPR) to study the issue of residential contractor licensing. DFPR is required to report its recommendations for residential contractor licensing to the Legislature by January 4, 2010.
LD 2124 – An Act To Prevent the Theft of Certain Metals. (Sponsored by Rep. Berry of Bowdoinham.) Emergency enacted; PL 2007, c. 549 (4/03/08)
This emergency Act establishes protocols for scrap metal processors to purchase scrap metal. The scrap metal processor is obligated, with some exceptions, to keep a record of each transaction of $50 or more in which the processor purchases scrap metal. The record must include the identity of the seller, a description of the metal, the amount paid by the processor and an affidavit from the seller that the seller owned the metal. The processor is required to retain this information for one year and make it available to a municipality or law enforcement official upon request.
LD 2186 – Resolve, Regarding the Operations of the Greater Portland Public Development Commission. (Sponsored by Rep. Cummings of Portland.) Finally passed; Resolves 2007, c. 224
This Resolve directs the Greater Portland Public Development Commission to prepare an audited financial statement regarding the commission and submit that audit to the Legislature by January 15, 2009. The Business, Research and Economic Development Committee is authorized to report out legislation during the 2009 legislative session regarding the further operations of the Commission in response to that audit.
LD 2250 – Resolve, Regarding Legislative Review of Portions of Chapter 220: Methodology for Identification of Regional Service Centers, a Major Substantive Rule of the Executive Department, State Planning Office. (Reported by Rep. Smith of Monmouth for the Executive Department, State Planning Office.) Emergency passed; Resolves 2007, c. 205 (4/15/08)
This emergency Resolve finally authorizes certain amendments to portions of Chapter 220, Methodology for Identification of Regional Service Centers as provisionally adopted by the State Planning Office. The amendments, which were not substantive in nature, nonetheless constituted a "major substantive" rule.
LD 2257 – An Act To Establish a Uniform Building and Energy Code. (Reported by Rep. Smith of Monmouth for the Joint Standing Committee on Business, Research & Economic Development.) (Mandate, but see sidebar) Enacted; PL 2007. c. 699
This Act presents sweeping changes to the regulation of building construction in Maine. The Act establishes the Maine Uniform Building and Energy Code (MUBEC). The MUBEC consists of the 2009 versions of codes published by the International Code Council including: the Commercial Building Code, the Existing Building Code, the Residential Building Code and the Energy Code. It also includes the Maine Model radon code and ASHRAE ventilation standards. All residential and commercial construction in the State must comply with the provisions of the MUBEC or a locally adopted building code beginning January 1, 2010. Beginning July 1, 2010, all locally adopted building codes are void and construction will be governed by MUBEC statewide.
The Act creates an 11-member Building Code Board (including two municipal code enforcement officers) to adopt and oversee the code. The Act funds three full-time state positions. The board and two new positions are created within the Department of Public Safety. The third position is an existing but unfilled position at the State Planning Office. The board will formally adopt the code and oversee the creation of training programs.
The Act mandates that all municipalities over 2,000 in population enforce MUBEC according to the following implementation schedule: (i) July 1, 2010 for municipalities over 2,000 currently enforcing a building code and (ii) January 1, 2012 for municipalities over 2,000 not currently enforcing a building code. However, the law provides that municipal "enforcement" includes the passive receipt of inspection reports filed by certified third-party inspectors paid for by the certificate applicant. The Act directs the Board to create a certification program for these third-party inspectors. Code enforcement officers in municipalities over 2,000 in population are required to be "certified" by the state in the MUBEC.
The funding for the Board and the three full-time positions is provided by revenue generated by a new 4-cent per square foot surcharge on the existing plan review fees charged by the Fire Marshal's Office.
The Act includes several provisions that would appear to be municipal mandates, but the issue is less than clear. Please see the sidebar article (on the next page) in this edition of the Townsman.
Criminal Justice & Public Safety
LD 1981 – An Act To Ensure Legislative Review of Fire Sprinkler Rules. (Sponsored by Sen. Martin of Aroostook County.) Enacted; PL 2007, c. 632
This Act establishes that any rules that may be adopted by the Commissioner of the Department of Public Safety on or after September 1, 2007 regarding the required installation of fire sprinklers be "major substantive" rules, thereby requiring legislative review and approval prior to final adoption.
LD 2080 – An Act To Better Coordinate and Reduce the Cost of the Delivery of State and County Correctional Services. (Sponsored by Rep. Crockett of Augusta.) Emergency enacted; PL 2007, c. 653 (4/18/08)
This emergency Act is the state-county corrections system unification legislation, which is described in detail in this edition of the Maine Townsman.
LD 2187 – An Act To Allow Limited Charitable Solicitations by Law Enforcement Associations. (Sponsored by Rep. Tardy of Newport.) Enacted; PL 2007, c. 633
This Act creates a narrow exception to the general prohibition against solicitation of resources or property by law enforcement agencies. Under the terms of the Act, a law enforcement agency may solicit resources or property from the general public for the benefit of a law enforcement officer or the immediate family member of a law enforcement officer suffering from a catastrophic illness according to a highly prescribed system. The solicitation may only take the form of posted advertisements in public settings for a ticketed fundraising event or a public plea for donations through advertisements. In both cases, the purchase of tickets or revenue generated by the advertising must be entirely handled by a designated "public benefit corporation", which is defined as a charitable corporation organized under Section 501(c)(3) of the Internal Revenue Code that does not employ or have on its board of directors any certified law enforcement officer. In no circumstance may solicitations be sent directly to potential donors and all public notices or advertisements regarding the solicitations must provide information about the "public benefit corporation" involved in the solicitation and specify that questions regarding the solicitation be directed to the Office of the Attorney General. In no circumstances may the public benefit corporation involved in the solicitation provide the names of any donors to the law enforcement agency or any other person, except the Attorney General's Office. The collected funds must be held in escrow and paid entirely to the beneficiary of the solicitation or the beneficiary's heirs within 30 days of the conclusion of the solicitation event. The public benefit corporation may be reimbursed only for any solicitation advertising costs paid by the public benefit corporation.
LD 2267 – An Act To Increase the Number of Concealed Firearms Permit Reciprocity Agreements That Maine May Enter into with Other Eligible States. (Reported by the Majority from the Joint Standing Committee on Criminal Justice and Public Safety.) Enacted; PL 2007, c. 555
Under current law, the state, acting through the Chief of the Maine State Police, may enter into "reciprocity agreements" with no more than two other states so that persons with permission to carry concealed firearms in those other states can carry their concealed firearms in Maine. This Act allows those reciprocity agreements with any number of other states provided a review of the other state's law by the Commissioner of Public Safety reveals that the other state's laws meet or exceed Maine's requirements for carrying a concealed weapon.
Education & Cultural Affairs
LD 2026 – Resolve, To Reimburse School Administrative District No. 11 for the State Share of Retirement Contributions Paid in Error. (Sponsored by Rep. Treat of Hallowell.) Finally passed; Resolves 2007, c. 217
This Resolve directs the Governor to include in the next biennial state budget for FY 2010 and FY 2011 funding in the amount of $90,788 to reimburse SAD 11 for the state share of teacher retirement contributions paid by the school district in error. The Resolve requires that the funding be offset by a reduction in the FY 2010 appropriation for teacher retirement.
LD 2028 – An Act To Clarify the Authority of the Board of Directors of Regional School Unit No. 1. (Sponsored by Rep. Percy of Phippsburg.) Enacted; P & SL 2007, c. 42
This Act authorizes the board of directors of the Bath-area school district to enter into a school tuition contract with the school board of the Town of Georgetown so that students from the Town of Arrowsic can attend the Georgetown Elementary School.
LD 2062 – An Act Regarding Education Laws. (Sponsored by Rep. Norton of Bangor.) Enacted; PL 2007, c. 572
Among other changes to education law, this Act expands the existing requirement to provide transportation to school for public elementary school students. Under the Act, transportation is also required for public preschool students. The Act provides that any rules promulgated by the Department of Education related to transportation requirements for pre-school students must be "major substantive" rules and therefore subject to review by the Legislature before final adoption.
LD 2122 – Resolve, Regarding Legislative Review of Portions of Chapter 64: Maine School Facilities Program and School Revolving Renovation Fund, a Major Substantive Rule of the Department of Education. (Reported by Rep. Norton of Bangor for the Department of Education.) Emergency passed; Resolves 2007, c. 174 (3/31/08)
This emergency Resolve finally authorizes the amendments to Chapter 64, Maine School Facilities Program and School Revolving Renovation Fund, which were provisionally adopted by the Department of Education as a "major substantive" rule.
LD 2299 – An Act To Make Technical Corrections in the Laws Regarding Funding Adult Education Programs and the Closure of an Elementary School in a School District. (Reported by Rep. Norton of Bangor for the Joint Standing Committee on Education and Cultural Affairs.) Emergency enacted; PL 2007, c. 599 (4/11/08)
This emergency Act makes two technical changes to the 2007 school reorganization law: (1) the Act makes the procedures that must be followed to close an elementary school within a "Regional School Unit" that were established by the 2007 school reorganization law apply in an identical way to the closure of an elementary school within a School Administrative District or Community School District (SADs and CSDs); and (2) the Act clarifies the procedures to be followed to approve adult education budgets.
LD 2323 – An Act To Remove Barriers to the Reorganization of School Administrative Units. (Sponsored by Sen. Bowman of York County.) Enacted; PL 2007, c. 668
This Act is designed to "remove barriers" and otherwise fix or correct numerous problems of a technical, administrative and substantive nature associated with the school consolidation law enacted in 2007. A complete description of LD 2323 is provided in this edition of the Maine Townsman.
Health & Human Services
LD 2012 – An Act to Protect Children in Vehicles from Secondhand Smoke. (Sponsored by Rep. Duprey of Hampden.) Enacted; PL 2007, c. 591
This Act prohibits smoking in a motor vehicle when a person under the age of 16 is present in the vehicle. The effective date of the legislation is September 1, 2008, and the Act provides that during the first year the law is in effect, violators will be given a warning. After that transition period, violators will be subject to a $50.00 fine.
LD 2084 – An Act To Protect Vulnerable Children by Allowing the Use of Asthma Inhalers and Epinephrine Pens. (Sponsored by Rep. Miller of Somerville.) Emergency enacted; PL 2007, c. 588 (4/09/08)
This emergency Act authorizes municipal employees and volunteers that operate or assist in any municipal recreation programs to receive training on how to administer asthma inhalers and epinephrine pens, and further authorizes these employees and volunteers to possess and administer those prescribed medications in order to provide emergency aid.
LD 2166 – Resolve, Regarding Legislative Review of Portions of Chapter 294: Rules Governing the Qualifications for Local Health Officers, a Major Substantive Rule of the Department of Health and Human Services, Maine Center for Disease Control and Prevention. (Sponsored by Rep. Perry of Calais for the Dept. of Health and Human Services.) Emergency passed; Resolves 2007, c. 165 (3/25/08)
This emergency Resolve provides for legislative review of Chapter 294 of the Department of Health and Human Services' rules governing the required qualifications of Local Health Officers (LHO), as provisionally adopted by DHHS. The provisionally-adopted rules: 1) require LHOs to complete one Center for Disease Control (CDC) provided six-hour training course every three years; 2) require training sessions to be held annually in each of the DHHS's eight districts; 3) require the training sessions to be provided free of charge to participating LHOs; 4) authorize, on a case-by-case basis, the CDC to grant an exemption from the training standards to an individual that has education, training, experience or a familiarity with the responsibilities of LHOs; and 5) provide a 6-month period after appointment for a LHO to meet the training requirements.
LD 2294 – An Act To Modernize the Local Health Officer Statutes. (Reported by Sen. Brannigan of Cumberland County for the Joint Standing Committee on Health and Human Services.) Enacted; PL 2007, c. 598
This Act amends existing statutes to focus local health officer (LHO) responsibilities and duties on the prevention and suppression of communicable diseases. With respect to communicable diseases, this Act defines the general role of the LHO to act as a conduit of information between residents and the state. In a declared emergency situation, this Act allows the role of the LHO to be expanded, through rulemaking, to make LHOs available to assist the Maine Center for Disease Control (CDC) in its response to the declared emergency. Under the terms of this Act, LHOs continue to be responsible for their traditional roles regarding complaints of nuisance filth and dead animals, as well as for keeping a record of all proceedings, transactions, ordinances, orders and rules. In addition, the Act repeals several LHO duties that are either outdated or provided by other entities, including providing free vaccination clinics, destroying undomesticated animals suspected of having rabies, and managing and removing from the general population jail inmates with communicable diseases.
LD 2296 – An Act Regarding the Statewide Homeless Council. (Reported by Sen. Brannigan of Cumberland County for the Joint Standing Committee on Health & Human Services) Enacted; PL 2007, c. 600
This Act directs the Department of Health and Human Services to collect from each municipality the General Assistance emergency contact information and periodically forward that information to the statewide 211 telephone system that provides information to callers about social service programs that may be available to them.
Inland, Fisheries & Wildlife
LD 1979 – An Act To Amend the Provisions for All-terrain Vehicles. (Sponsored by Sen. Martin of Aroostook County.) Enacted; PL 2007, c. 509 (6/30/08)
This Act expressly allows a landowner to limit the use of a designated state-approved ATV trail on the landowner's property through agreements with the state or an ATV club to address environmental, public safety or management concerns.
LD 1982 – An Act To Amend Certain Provisions of the Fish and Wildlife Laws. (Sponsored by Sen. Bryant of Oxford County.) Emergency enacted; PL 2007, c, 651 (4/18/08)
This emergency Act amends the definition of a Maine "resident" for the purpose of obtaining resident hunting, fishing, and trapping licenses by removing a provision of current licensing law that allows a "resident" license to be issued to a person who has been domiciled in Maine for at least three months, provided that the applicant is a U.S. citizen and: if registered to vote, the applicant is registered in Maine; if licensed to drive, has a Maine driver's license; if owns a vehicle, registers the vehicle in Maine; and is in compliance with all state income tax laws. This Act also authorizes the Commissioner of the Department of Inland Fisheries and Wildlife to revoke a hunting, fishing or trapping license issued to any person who has failed to pay the license, permit or registration fee to any licensing agent or the department.
LD 2088 – (New title) Resolve, To Direct the Department of Inland Fisheries and Wildlife To Allow Maine Residents To Renew Their Watercraft Registrations Online and to Direct the State Controller to Make Certain Transfers. (Sponsored by Rep. Driscoll of Westbrook.) Finally passed; Resolves 2007, c. 227
This Resolve directs the Department of Inland Fisheries and Wildlife to provide an option on its website of on-line registration of watercraft. The Resolve further provides that IF&W shall structure the on-line registration process so that a fee is charged in addition to the regular registration fee to cover both the Department's administrative costs for providing the on-line registration and, to the extent possible, the merchant fees that are charged for processing credit card transactions, all for the purpose of ensuring that municipalities do not lose revenue because of the online registrations.
Insurance & Financial Services
LD 2092 – An Act To Amend the Public Workers Contractors' Surety Bond Law of 1971. (Sponsored by Rep. Haskell of Portland.) Enacted; PL 2007, c. 500 (6/30/08)
This Act amends the Public Works Contractors' Surety Bond Law by: (1) increasing from $100,000 to $125,000 the threshold limit for a contract for the construction, alteration or repair of any public building or other public improvement or public work for which a person must provide a performance bond and a payment bond; and (2) allowing, at the discretion of the state or other contracting authority, the contractor to provide an irrevocable letter of credit instead of either or both the performance bond and the payment bond. The letter of credit must be issued by a federally insured financial institution and the financial institution or its parent company must meet certain financial standards to qualify.
LD 1881 – An Act To Improve Transparency and Accountability in Government. (Sponsored by Sen. Weston of Waldo County.) Enacted; PL 2007, c. 501 (6/30/08)
This Act makes two amendments to the section of the Right to Know law regarding the right of any person to inspect and copy a "public record". The Act: (1) permits a governmental agency or official to request clarification concerning which public records are being requested; and (2) requires the governmental agency or official to acknowledge receipt of the request to inspect the public record within a reasonable period of time.
LD 1923 – An Act To Implement the Recommendations of the Right To Know Advisory Committee Creating the Public Access Ombudsman. Presented by Rep. Simpson of Auburn for the Joint Standing Committee on Judiciary.) Enacted; PL 2007, c. 603
This Act appropriates $41,000 for the purpose of funding the creation of a "public access" division within the Attorney General's Office and hiring a "Public Access Ombudsman" as a pilot project to occur during FY 09. The ombudsman would be charged with responding to inquiries and complaints, providing educational materials, providing nonbinding advisory opinions, and preparing reports and recommendations for the Legislature with respect to Maine's Freedom of Access (or "Right to Know") law. The Act authorizes the ombudsman to access records that may otherwise be considered confidential for the purpose of making nonbinding recommendations concerning whether a public agency or official may release the records.
LD 2198 – An Act To Implement the Recommendations of the Right To Know Advisory Committee Concerning Training for Elected Officials. (Reported by Rep. Simpson of Auburn for the Joint Standing Committee on Judiciary.) Emergency enacted; PL 2007, c. 576 (4/07/08)
This emergency Act amends a law enacted in 2007 that requires all elected governmental officials in Maine to meet certain training requirements regarding Maine's "Right to Know" law. Specifically, the Act establishes that the training requirement is met if the official conducts a review of information on the Right to Know topic made specially available on the state's website (www.maine.gov/foaa/index.htm) and makes a written or electronic record attesting to the fact the review was conducted. That record must be kept by the individual or filed with the public entity to which the official was elected. The Act also clarifies the elected local officials to which the requirement applies, including on the municipal level all selectmen and councilors, clerks, treasurers and budget committee members. The elected official shall complete the training not later than the 120th day after the date the elected official takes the oath of office to assume the person's duties as an elected official. For elected officials subject to this section serving in office on July 1, 2008, the training required by this section must be completed by November 1, 2008.
LD 1697 – An Act To Ensure Fair Wages. (Sponsored by Sen. Strimling of Cumberland County.) Enacted; PL 2007, c. 640
This Act increases the current state minimum wage of $7.00 per hour to $7.25 per hour beginning on October 1, 2008 and to $7.50 per hour beginning on October 1, 2009.
LD 1931 – An Act To Protect Employee Choice of Collective Bargaining Agents in the Educational Unit Consolidation Process. (Sponsored by Sen. Martin of Aroostook County.) Enacted; PL 2007, c. 566
This Act extends the deadline for the merger of the bargaining units represented by different collective bargaining agents that may exist within a reorganized school system pursuant to the school consolidation law until August 31, 2012.
LD 1996 – An Act to Allow Changes of Beneficiaries under the Maine Public Employees Retirement System.(Sponsored by Sen. Benoit of Sagadahoc County.) Emergency enacted; PL 2007, c. 523 (3/27/08)
This emergency Act creates a one-time exception to the general rule under the Maine Public Employees Retirement System whereby a retiree is allowed to make only one change of designated beneficiary without the permission of the beneficiary if the beneficiary is not the spouse or former spouse of the retiree. As an exception to that general rule, this Act would allow a retiree to change the retiree's previously chosen new beneficiary back to the original beneficiary.
LD 2132 – An Act To Amend the Family Medical Leave Laws To Include Siblings. (Sponsored by Rep. Tuttle of Sanford.) Enacted; PL 2007, c. 519 (6/30/08)
This Act expands Maine's "Family Medical Leave" law to allow an employee to take a family medical leave for a sibling with a serious health condition or who dies while on active military duty only if the sibling is jointly responsible with the employee for each other's common welfare as evidenced by joint living and other joint financial arrangements.
LD 2150 – An Act To Clarify Retirement Programs for Participating Local Districts. (Sponsored by Rep. Clark of Millinocket.) Emergency enacted; PL 2007, c. 490 (3/07/08)
This emergency Act creates consistency in the standards for optional retirement system membership for employees of participating local districts that also have Social Security or another qualifying Internal Revenue Service plan. The Act also replaces the once-per-year option for a local district to join the Maine system with a twice per year option.
LD 2177 – An Act To Correct the Law Regarding Portability of Pension Benefits for Law Enforcement Officers and Firefighters. (Sponsored by Sen. Edmonds of Cumberland County.) Enacted; PL 2007, c. 542
This Act allows law enforcement officers and firefighters to carry service credit and compensation from a prior retirement plan to a new retirement plan within the Maine Public Employees Retirement System provided they pay the additional cost of doing so.
LD 2205 – An Act To Further Clarify Worker Payments for Clothing and Equipment. (Sponsored by Rep. Smith of Monmouth.) Enacted; PL 2007, c. 524 (6/30/08)
This Act prohibits an employer from charging an employee for uniforms (including shirts or other items with a company logo), personal protective equipment and other tools of the trade. The Act also prohibits an employer from mandating that the employee pay for cleaning or maintenance of a uniform unless pursuant to a written agreement with the employee or the employee's bargaining agent.
LD 2285 – An Act To Implement the Recommendations of a Task Force Convened to Evaluate and Recommend Revisions Regarding the Statutory Definition of "Service Dog". (Reported by Rep. Smith of Monmouth for the Joint Standing Committee on Business, Research and Economic Development.) Enacted; PL 2007, c. 664
This Act implements the recommendations of the Commissioner of Labor's task force to evaluate and recommend, among other matters, revisions to the definition of a "service animal". Of municipal interest is the section of the Act that prevents municipal clerks from registering dogs or issuing licenses and tags identifying a dog as a 'service dog', unless the applicant presents "written evidence" that meets the proposed definition of a service animal. To meet the written-evidence standard, an applicant must provide a service dog certification form approved by the Department of Agriculture in consultation with the Maine Human Rights Commission. Certified service dogs owned or kept by a person with a physical or mental disability are exempted from the licensing fees. As proposed, the Act defines a "service animal" as: 1) an animal determined necessary by a physician, psychologist, physician's assistant, nurse practitioner or licensed social worker for a person with a physical or mental disability; or 2) any animal individually trained to work or perform tasks for the benefit of a person with a physical or mental disability, including, but not limited to, guiding persons with impaired vision, alerting individuals who are deaf or hard of hearing to intruders or sounds, providing reasonable protection or rescue work, pulling a wheelchair or fetching dropped items.
Legal & Veterans Affairs
LD 2110 – An Act To Amend the Election Laws. (Sponsored by Rep. Patrick of Rumford.) Enacted; PL 2007, c. 515 (6/30/08)
This Act makes a number of changes to Maine's election laws. Among the changes relevant to the duties of municipal election clerks, the Act: (1) clarifies the extent of voter information that must be included on the current voter list; (2) reduces the time incoming voter lists must be sealed after an election from 10 days to 5 days; (3) allows municipal election clerks to accept absentee ballot applications by e-mail and establishes the procedures that must be followed when the municipal clerk provides that option; and (4) decreases the time for the municipal clerk to make a final update to the list of absentee voters in the central voter registration system from 10 to 5 business days after the election.
LD 2130 – Resolve, Directing the Secretary of State to Work with the Legislative Youth Advisory Council To Establish a Program Regarding Educating Youth About Voting. (Reported by Rep. Farrington of Gorham for the Legislative Youth Advisory Council) Finally passed; Resolves 2007, c. 164 (6/30/08)
This Resolve directs the Secretary of State to develop a program to produce youth civic education materials to be provided for public dissemination at branches of the Bureau of Motor Vehicles and at public high schools throughout the state.
LD 2293 – Resolve, To Improve the Absentee Voting System on November 3, 2008. (Sponsored by Sen. Diamond of Cumberland County.) Finally passed; Resolves 2007, c. 215
This Resolve authorizes a municipal clerk to prohibit voting by absentee ballot in the presence of the municipal clerk on November 3, 2008, provided that the clerk gives written notice of the municipality's intent at least 30 days before election day (November 4, 2008) to the Secretary of State and to the chairs of each political party. All other methods of absentee voting authorized by law must be made available to voters on November 3, 2008. The Resolve also authorizes a municipal clerk to process absentee ballots prior to election day, provided the clerk gives written notice of the municipality's intent at least 30 days before election day to the Secretary of State and to the chairs of each political party. The notice must state the specific time the municipal clerk intends to being processing absentee ballots.
LD 2006 – An Act To Give Municipalities Control of Mussels Located in Intertidal Zones. (Sponsored by Sen. Raye of Washington County.) Enacted; PL 2007, c. 494 (6/30/08)
This Act expressly authorizes a municipality, through its shellfish conservation ordinance, to specify areas of the intertidal zone in which the dragging of mussels may be limited to the degree necessary to support the municipality's shellfish conservation program. The Act also authorizes the Commissioner of the Department of Marine Resources to issue a permit to an individual to take mussels from the areas in which dragging has been limited by the municipality provided the Commissioner's action is done after seeking advice from the municipality. The Act authorizes the Commissioner to place additional limitations on those permits if necessary to obtain consistency with the shellfish conservation program.
LD 2038 – An Act To Facilitate the Timely Reopening of Closed Clam Flats. (Sponsored by Rep. Gerzofsky of Brunswick.) Emergency enacted; PL 2007, c. 606 (4/14/08)
This emergency Act creates a 13-member Shellfish Advisory Council that is charged with the responsibilities of advising the Commissioner of the Department of Marine Resources (DMR) and the Legislature's Marine Resources Committee about how to best utilize state agencies, municipal governments, the shellfish industry and citizen groups to make improvements to the quality of coastal waters and expedite the opening of closed shellfish flats. One member of the Advisory Council must represent the interests of municipalities with wastewater treatment systems and two members of the Advisory Council must be municipal shellfish wardens. The Act also requires DMR to undertake two pilot projects within the next 18 months where a municipality contracts with a private laboratory to conduct the water quality tests that pertain to closed clam flats in order to ascertain if private sector testing might expedite the clam flat reopening process. DMR must submit a report by May 1, 2009 to the Legislature on the progress of the pilot water quality test projects.
LD 2129 – An Act To Make Clam Flat Status Notification More Efficient, Cost Effective and Economically Beneficial to the Shellfish Industry. (Sponsored by Rep. Webster of Freeport.) Enacted; PL 2007. c. 692
This Act makes the shellfish sanitation hotline and the Department of Marine Resources' website the means by which the Department notifies shellfish harvesters of the opening and closing of clam flats. The Act also directs the Department to change its policy and as a general rule no longer use newspaper publication as the method of notification except in an emergency.
LD 810 – An Act To Improve Solid Waste Management. (Sponsored by Rep. Duchesne of Hudson.) Enacted; PL 2007, c. 583
This Act amends the laws governing the state's management of solid waste in a number of ways, including: (1) establishing licensing standards for new or expanded solid waste disposal facilities (with some exception) that require all accepted waste to be subject to recycling and source reduction programs; (2) establishing licensing standards for solid waste processing facilities that generate residue requiring disposal (with some exception) that require the facility to recycle or process into fuel for combustion all waste accepted at the facility to the maximum extent possible but in no case at a rate less than 50%; (3) directs the State Planning Office (SPO) to include analyses of marketplace consolidation and solid waste landfill fill rates in the SPO's annual solid waste reports; (4) directs the Department of Environmental Protection (DEP) to prepare a report on solid waste odor management; (5) directs SPO and DEP to develop a system by which solid waste management activities are performed by the two agencies; and (6) directs the DEP to prepare a report detailing a method of setting mandatory recycling standards for all solid waste disposal facilities.
LD 1933 – An Act To Extend the Deadline for Application for Loans Associated with the Remediation of a Waste Oil Site in Plymouth. (Sponsored by Sen. Martin of Aroostook County.) Emergency enacted; PL 2007, c. 479 (2/14/08)
This emergency Act extends the deadline to apply to borrow funds from the Finance Authority of Maine to assist with the remediation of the Plymouth waste oil site. The original deadline was 180 days from June 4, 2007. The deadline established by this Act is 365 days from June 4, 2007.
LD 1947 – An Act To Clarify the Waste Motor Oil Disposal Site Remediation Program. (Sponsored by Rep. Koffman of Bar Harbor.) Enacted; PL 2007, c. 618
This Act repeals as of August 1, 2008 the $1-$3 "premium" charged for each motor oil change at commercial oil change facilities and by the owners of fleets of vehicles. The premium charged on each oil change is replaced with a premium charged on the first sale or distribution of bulk motor vehicle oil in the state.
LD 1952 – An Act To Streamline the Administration of Significant Vernal Pool Habitat Protection. (Sponsored by Rep. Koffman of Bar Harbor.) Emergency enacted; PL 2007, c. 533 (3/31/08)
This emergency Act amends the process by which the Department of Inland Fisheries and Wildlife identify certain protected habitats in the following way. Under current law, municipalities and their legislators must be notified by the Department of Inland Fisheries and Wildlife if a new area in the municipality is designated as either "significant vernal pool habitat" or "high and moderate value waterfowl and wading bird habitat" or a "shorebird nesting, feeding and staging area". This Act would repeal that notification requirement with respect to "significant vernal pool habitat" and "high and moderate value waterfowl and wading bird habitat". The Act also: (1) specifically limits the list of rare species the Department of Environmental Protection must consider when determining if a vernal pool is a "significant vernal pool habitat"; (2) provides that a "significant vernal pool habitat" may not have a permanent flowing inlet or outlet; and (3) incorporates certain additional specific standards in the Department's rules governing the determination of a significant vernal pool habitat.
LD 1964 – Resolve, To Require Rulemaking Concerning Landfill Gas and Odor Management. (Sponsored by Sen. Schneider of Penobscot County.) Finally passed; Resolves 2007, c. 170 (6/30/08)
This Resolve directs the Department of Environmental Protection to adopt rules governing landfill gas and odor management that incorporate quantitative standards that can be used to measure compliance. Although no deadline is provided for the promulgation of those rules, the status of those rules is to be reported back to the Legislature by January 15, 2009.
LD 2009 – Resolve, Regarding Legislative Review of Portions of Chapter 150: Control of Emissions from Outdoor Wood Boilers, a Major Substantive Rule of the Department of Environmental Protection, Bureau of Air Quality Control. (Reported by Rep. Koffman of Bar Harbor for the Department of Environmental Protection.) Emergency passed; Resolves 2007, c. 190 (4/09/08)
This emergency Resolve requires that the rules promulgated by the Department of Environmental Protection (DEP) regarding outdoor wood boilers be amended before final adoption to: (1) more specifically establish the wood boiler setbacks from both property lines and residential dwelling units according to specific guidelines; and (2) direct the DEP to promulgate a new set of rules governing the use of outdoor wood boilers fueled by pelletized wood.
LD 2046 – An Act Concerning Certain Excavations. (Sponsored by Rep. Flood of Winthrop.) Enacted; PL 2007, c. 616
This Act amends the Natural Resources Protection Act as it relates to gravel pits, mineral excavation activities and quarries to clarify that those activities that were permitted pursuant to state regulation before June 8, 2006 do not have to obtain an additional permit for excavation within the upland portion of a high and moderate value inland waterfowl and wading bird habitat that may fall within the permitted excavation area unless subsequent permitting is required due to the presence of a protected natural resource other than a high and moderate value inland waterfowl and wading bird habitat.
LD 2056 – An Act To Conserve Gasoline and Preserve Clean Air. (Sponsored by Rep. Hinck of Portland.) Enacted; PL 2007, c. 582
This Act establishes limits on motor vehicle idling times for all motor vehicles that transport property or passengers on highways that weigh more than 10,000 lbs or transport more than 8 passengers for hire or transport more than 15 passengers without compensation or that transport hazardous materials. The idling-time limits established by this Act also apply to all gasoline-powered motor vehicles that are not private passenger vehicles. The general idling time limit established by this Act is no more than 5 minutes in any 60-minute period, with 14 listed exceptions. The exceptions include: (1) idling while stalled in traffic; (2) police, fire, ambulance, public safety or other emergency vehicles when idling is required to perform the public safety purposes; (3) a passenger bus may idle up to 15 minutes within the 60-minute period to maintain passenger comfort while passengers are on board; and (4) idling for the purpose of providing heat when the ambient air temperature is below 0 degrees Fahrenheit. The Act provides that to the maximum extent practicable, the person who owns the location where a commercial motor vehicle loads or unloads is responsible for minimizing delays in loading and unloading operations to reduce idling times.
LD 2072 – An Act To Conform the Laws Governing Underground Oil Storage Tanks to the Requirements of the Federal Energy Policy Act. (Sponsored by Rep. Koffman of Bar Harbor.) Enacted; PL 2007, c. 534 (6/30/08)
This Act amends the current inspection requirements for owners of underground and above ground oil storage tanks. Under current law, the owners must submit annual inspection reports to the Department of Environmental Protection (DEP) regarding the tank's quality and compliance with leak detection and prevention devices. This Act requires that at least every three years the annual inspection must be performed by a qualified inspector who is not the tank owner, an employee of the tank owner, or otherwise interested in the operations where the oil tank is located. The Act also provides the DEP with the authority to shut down the use of non-compliant oil storage tanks after providing the owner with notice.
LD 2073 – An Act To Prevent Contamination of Drinking Water Supplies. (Sponsored by Rep. Duchesne of Hudson.) Enacted; PL 2007, c. 569
This Act generally prohibits in a going-forward manner the location of underground or above ground oil storage tanks; automobile graveyards; automobile body shops, maintenance or repair facilities; dry cleaning facilities; metal finishing or metal plating facilities; and commercial hazardous waste facilities in a "wellhead protection zone". A "wellhead protection zone" is defined as: (1) a "source water protection area" as mapped by the Department of Health and Human Services; (2) an area within 300 feet of a private drinking water well; or (3) an area within 1,000 feet of a public drinking water well. The Act "grandfathers" existing facilities and allows for the replacement or conversion of existing underground and above ground oil storage tanks provided certain construction standards are met. This Act authorizes municipal code enforcement officers to enforce the wellhead protection standards, but locates both variance authority and significant enforcement authority with the Commissioner of the Department of Environmental Protection.
LD 2119 – An Act To Amend Certain Laws Related to Environmental Protection. (Sponsored by Sen. Martin of Aroostook County.) Enacted; PL 2007, c. 655
This Act makes several amendments to Maine's environmental laws. Among the amendments pertinent to municipal activities, this Act: (1) increases the fee for owning or operating an underground oil storage facility from $35 to $100 but changes the duration of the fee from 1 year to 3 years; and (2) clarifies that municipalities that close landfills are obligated to inspect, monitor and maintain the closure according to statutory closure cap specifications.
LD 2160 – An Act To Protect Shellfish Waters and Shellfish Resources from Coastal Pollution. (Sponsored by Rep. Webster of Freeport.) (Mandate) Enacted; PL 2007, c. 568
This Act, which is identified as a state mandate, develops a system supported by both state and coastal municipal governments to further investigate and implement improvements to malfunctioning septic systems. Specifically, the Act: (1) requires all persons selling property located within a coastal or inland shoreland zoning area that has a subsurface waste disposal system to provide the buyer with a written statement as to whether the system has malfunctioned within the last 180 days; (2) requires with respect to coastal shoreland areas that the buyer of any property that includes a subsurface waste disposal system must have the system inspected by certified inspector prior to purchase unless inclement weather prevents such an inspection, in which case the inspection must occur within 9 months after the purchase; (3) creates three exceptions to the requirement for a pre-purchase inspection: (a) if the septic system is less than three years old; (b) if the seller of the property has a written inspection report certifying the that system is not malfunctioning and that certification is less than three years old; and (c) if the buyer certifies that the system will be replaced within one year of the property purchase; (4) authorizes the Department of Environmental Protection (DEP) or the Department of Marine Resources (DMR) to notify the appropriate municipality or municipalities if either department identifies a relevant bacteria or toxins standard affecting a shellfish area that should trigger a review of potentially malfunctioning septic systems in a certain affected area; (5) establishes a system after notification by either DEP or DMR whereby one of two possible investigation procedures are followed. One of those investigation systems obligates the municipality to have the local plumbing inspector assist state officials if the state is going to use state resources to investigate the septic systems within the area identified as potentially contributing to the shellfish area pollution. The alternative investigation system only kicks-in if the state and the municipality do not mutually agree not to investigate the area together. This alternative system requires the municipality to provide DEP with a list of all the property owners and associated contact information and further requires DEP to notify each property owner that the property owner's septic system needs to be inspected by a certified inspector. If the property owner is unwilling or unable to provide the required inspection, the municipality must contract with an independent certified inspector to ensure that the inspection is provided, and the municipality is authorized to recover its costs by assessing a fee or special tax against the land on which the septic system is located, in line with the existing law regarding the abatement of malfunctioning septic systems.
To be clear about the mandate, the alternative system of forcing the homeowner to have a third-party conduct an inspection does not kick-in unless the municipality agrees to it; the municipality is empowered to insist on the first investigation method which involves a joint state-local investigation. If the state cannot commit resources to an on-the-ground investigation, with the assistance of the local plumbing inspector, the municipality is not obligated to agree to the alternative system.
LD 2169 – An Act To Authorize a General Fund Bond Issue for Drinking Water Management and Wastewater Management. (Sponsored by Sen. Bartlett of Cumberland County.) Enacted; PL 2007, c. 673
This Act sends out to the voters on November 4, 2008 a proposed $3.4 million bond that provides $1.7 million for the drinking water revolving loan fund and $1.7 million for a wastewater treatment facility revolving loan fund. If the bond issue is approved by the voters, the combined state funding is expected to leverage $17 million in federal and other funds.
LD 2235 – An Act To Sustain Maine's Core Wastewater Licensing Program and Adjust Related Provisions. (Sponsored by Rep. Koffman of Bar Harbor.) Enacted; PL 2007, c. 558
This Act moves certain fees associated with storm water management law from the statutes governing storm water management into the Department of Environmental Protection's (DEP's) fee schedule and restructures those fees into "processing" and "certification" fees to fit that format. The Act also restructures and expands the wastewater licensing fees to add an "annualized license renewal service fee". The Act also provides that when a wastewater discharge licensee continues to discharge wastewater following expiration of a license, the license fee must continue to be paid. According to the Act's fiscal note, this Act will increase the revenues accruing to the Maine Environmental Protection Fund within the Department of Environmental Protection by approximately $90,000 a year.
LD 2249 – An Act To Protect Lake Water Quality. (Reported by Rep. Koffman of Bar Harbor for the Joint Standing Committee on Natural Resources.) Enacted; PL 2007, c. 593
This Act requires any excavation contractor conducting excavation activity in a shoreland area to ensure that a person certified in erosion control practices is made responsible for the management of erosion and sediment control practices at the site and is present on the site each day earth moving activity occurs to ensure that proper erosion and sedimentation control practices are followed. This certification requirement is effective beginning January 1, 2013. The Act also increases the maximum amount of the phosphorous-loading compensation fee from $10,000 per pound of available phosphorous to $25,000 per pound of available phosphorous, and provides that as an alternative to paying the compensation fee, the Department of Environmental Protection (DEP) may allow an applicant to meet a municipally-required mitigation option if the DEP determines that the local mitigation option will provide at least as much long-term reduction in phosphorous loading to the lake as likely would be provided by paying the compensation fee. Finally, this Act directs the DEP to develop a report that evaluates strategies to diminish the impact of private roads, driveways and boat ramps on lake water quality. The report is supposed to provide municipalities with appropriate road standards to protect lake water quality, a sample model ordinance that municipalities might use to govern the quality of private roads in lake watershed areas, and include consultations with the Attorney General's Office regarding any constitutional issues associated with municipalities assessing impact fees against private landowners in order to maintain their private roads according to certain design standards.
LD 2263 – An Act Establishing an Outdoor Wood Boiler Fund. (Reported by Sen. Martin of Aroostook County for the Joint Standing Committee on Natural Resources.) Enacted; PL 2007, c. 680
This Act authorizes the Commissioner of the Department of Environmental Protection to order any person operating an outdoor wood boiler that is creating a nuisance condition or a danger to public health or safety to cease or prevent that operation. This Act also creates a fund made up of future state appropriations, if any, private contributions, if any, and certain financial civil penalties for the purpose of purchasing, upgrading and/or replacing outdoor wood boilers from or for people who have outdoor wood boilers that have been determined by the Department of Environmental Protection to constitute a nuisance condition or threat to public health or safety.
State & Local Government
LD 1965 – An Act To Amend the Lucerne-in-Maine Village Corporation Charter. (Sponsored by Sen. Rosen of Hancock County.) (Mandate) Enacted; P & SL 2007, c. 33 (6/30/08)
This Act amends the Lucerne-in-Maine Village corporation charter by including a segment of a certain road in the territory of the Village.
LD 1968 – An Act To Clarify the Election of Municipal Charter Commission Members. (Sponsored by Sen. Brannigan of Cumberland County.) Emergency enacted; PL 2007, c. 495 (3/14/08)
This emergency Act creates an additional option to elect the elected members of a charter commission. Previous law required all elected members of a charter commission to be elected either at large or by voting ward. This Act allows the charter commission members to be elected both at large and by voting ward in the same proportion as the council members in that municipality are elected both at large and according to voting ward. This Act also allows the election of the charter commission to be held at the same time as the vote to create a charter commission or at the next regularly or specially scheduled election held within 200 days thereafter.
LD 2188 – Resolve, To Establish a Moratorium on Development in Saco Bay. (Sponsored by Rep. Hogan of Old Orchard Beach.) Finally passed; Resolves 2007, c. 204
This Resolve establishes a moratorium for 18 months on the processing or issuance of new submerged land leases for commercial projects and aquaculture leases by the Department of Conservation or Department of Marine Resources in any part of Saco Bay. The Resolve also authorizes the convening of a working group made up of representative from Saco, Old Orchard Beach, Scarborough, Biddeford and various state agencies for the purpose of reviewing municipal boundaries, regulatory jurisdictions, and the parameters for future development in Saco Bay.
LD 2234 – An Act To Validate Certain Proceedings Authorizing the Issuance of Bonds and Notes by the City of Brewer High School District. (Sponsored by Sen. Rosen of Hancock County.) Emergency enacted; P & SL 2007, c. 39 (3/28/08)
For the purpose of ensuring the full marketability of certain city-issued bonds or notes, this emergency Act validates the City of Brewer High School District construction referendum conducted on December 4, 2007 even though specimen ballots for the referendum were not published in any newspapers required by the City's charter.
LD 2302 – An Act To Remove Impediments to Changing County Government Fiscal Years. (Sponsored by Rep. Millett of Waterford.) Enacted; PL 2007, c. 663
This Act converts the hard deadlines within the calendar year that currently apply to the county budget development and adoption process to alternative deadlines that are based on a certain number of days before the first day of the county's fiscal year, all for the purpose of allowing the counties more flexibility to change their fiscal years from the historical calendar year to the July 1 - June 30 state fiscal year. For counties that change from a calendar-year basis to a state fiscal year basis, the Act requires the county officials to provide the municipalities within the county an estimate of the county assessment no later than April 15. With respect to time periods to create the county budget committees, the Act establishes as a general rule that the caucusing procedures must be initiated no later than 100 days before the start of the county's fiscal year. The Act does not change the time of the calendar year when the county assessment must be paid, which under current law is no earlier than September 1 of each year.
LD 543 – Resolve, To Direct a Review of Issues Concerning the Maine Tree Growth Tax Law. (Sponsored by Rep. Saviello of Wilton.) Finally passed; Resolves 2007, c. 197
This Resolve directs Maine Forest Service (MFS) within the Department of Conservation to convene a task force of no more than seven members to review issues associated with the Tree Growth tax law, including: (1) the advisability of using more up-to-date data regarding timber growth rates in the determination of Tree Growth acreage rates; (2) the advisability of establishing Tree Growth acreage rates for differently organized or larger regions rather than on a county-by-county basis, which is current practice; (3) determining whether data supports the perception that some land is being classified under the Tree Growth program that does not meet the statutory requirements or the purpose of the Tree Growth tax law, utilizing information collected by MFS, Maine Revenue Services, municipal assessors, and others; and (4) determining the best methods for ensuring that municipalities and landowners are aware of the requirements of the Tree Growth tax law. A report on the findings of this task force must be submitted to the Taxation Committee by January 15, 2009.
LD 885 – An Act To Implement the Recommendations of the Commission to Study the Costs of Providing Certain Services in the Unorganized Territories. (Reported by Rep. Duchesne of Hudson for the Commission to Study the Costs of Providing Certain Services in the Unorganized Territories.) Enacted; PL 2007, c. 541
This Act implements the recommendations of a Commission to Study the Cost of Providing Certain Services in the Unorganized Territories. The Act has seven parts:
Part A of the Act provides authority for county commissioners to impose service fees for certain types of services provided in the unorganized territory. Service fees must be based on the actual cost of providing the service, imposed only on persons actually receiving the service and imposed on all similarly situated persons receiving the service. Revenues must be used to reduce property taxes.
Part B of the Act changes the method of assessing areas under the jurisdiction of the Maine Land Use Regulation Commission for the cost of providing land use regulatory services. The unorganized territory will be assessed a fee equal to .013% of state valuation. Towns and plantations under the jurisdiction of the Maine Land Use Regulation Commission will be assessed a fee equal to .015% of state valuation.
Part C of the Act provides that the Commissioner of Education may not provide or reimburse parents within the unorganized territory for providing transportation for students over roads that have not been accepted by the county as public roads or that do not meet Department of Transportation standards. Part C also provides that beginning with FY 2010, the Commissioner may not reimburse parents in the unorganized territory for the transportation of a student.
Part D of the Act requires the State Controller to establish an Unorganized Territory Education and Services Fund that is in accordance with the standards of a governmental accounting standards board as they apply to financial statements.
Part E of the Act increases the fee paid to agents collecting motor vehicle and watercraft excise taxes in the unorganized territory from $4 to $6.
Part G of the Act authorizes the county commissioners to enact an ordinance related to road construction, repair and maintenance on roads in the unorganized territory in which the county has a property interest.
LD 1413 – Resolve, To Review the Law Governing Municipal Service Charges for Tax-exempt Property. (Sponsored by Rep. Blanchette of Bangor.) Finally Passed; Resolves 2007, c. 146 (6/30/08)
This Resolve directs Maine Revenue Services to assemble a working group made up of municipal officials and representatives of tax exempt corporations to study and make recommendations regarding the "service charge" statute that currently exists in Maine law and allows certain service fees to be applied to a limited class of tax exempt institutions. The working group is charged with:
1. Studying how the statute is designed to be implemented under current law;
2. Developing alternative methods of calculating the direct cost of municipal services that are provided to tax exempt institutions.
3. Identifying any institutions that should not be subject to service charges, either by category, size, assessed value or other circumstance;
4. Recommending whether service charges should be applied through the enactment of local ordinances or uniformly across municipal jurisdictions as a matter of state law; and
5. Determining all the administrative issues that should be addressed, such the process of appeal, assessment and collection procedures, assessment limitations and the municipal use of service fee revenue.
The working group is scheduled to submit its report along with any recommendations to the Taxation Committee no later than December 15, 2008, and the Taxation Committee is authorized to report out legislation to implement any recommended changes to the current law.
LD 2008 – An Act To Provide Ongoing Funding for the Historic Preservation Tax Credit. (Sponsored by Sen. Courtney of York County.) Enacted; PL 2007, c. 614
This Act establishes an accounting procedure by requiring the State Controller to identify and capture any sales tax revenue and real estate transfer tax revenue that would accrue to the state's General Fund because of construction or sales related to the rehabilitation and/or sale of historic properties that has been funded through the Historic Preservation income tax credit and transfer those funds to a special account. Those funds are then to be transferred back to the state's General Fund within the same fiscal year to help defray the negative impacts to the General Fund associated with the income tax credit when those impacts have been identified by the State Tax Assessor.
LD 2140 – An Act To Protect Parties to Real Estate Transactions. (Sponsored by Rep. Sirois of Turner.) Enacted; PL 2007. c. 687
This Act directs Maine Revenue Services to prepare and distribute a guidance document that may be made available to both the buyers and sellers in any real estate transaction to make sure that both parties are aware of their respective rights and responsibilities regarding the payment of the property taxes for that tax year, including the possibility that the filing of a tax lien can impair a person's credit rating and the potential of avoiding further problems by escrowing the property tax obligation at the time of closing. This Act also authorizes a party in a real estate transaction that includes as part of the closing contract a proration of the property tax obligation between buyer and seller to sue the other party if there is a failure to honor that contract and, if prevailing in that lawsuit, to collect attorney's fees as well as unpaid taxes and direct costs. Finally, this Act allows a successful plaintiff in such a lawsuit to have the description "inaccurate information" filed in any credit report that may impair that person's credit rating on the basis of a property tax lien that was filed because of the other party's failure to honor the proration agreement.
LD 2151 – An Act To Make Minor Substantive Changes to the Tax Laws. (Sponsored by Rep. Piotti of Unity.) Enacted; PL 2007. c. 693
This Act makes a number of "minor substantive" changes to Maine's tax laws. Among the changes that pertain tangentially to municipal government, the Act; (1) establishes mandatory requirements for the owners of so-called "two-way" personal telecommunications property to report their specific ownerships to the state by April 20th; (2) clarifies the penalties that apply when the owners of two-way telecommunications property fail to pay their personal property taxes to the state; (3) authorizes the State Tax Assessor to set off against revenues received credit card fees incurred by the Assessor in connection with the collection of excise taxes in the unorganized territories; and (4) clarifies two elements of a local-option farmland support program that was enacted in 2007, including the clarification that the limitations on the amount of land that may be entered into the support program without first obtaining a special two-thirds vote of the municipality's legislative body is an amount of land equal to 3% or more (in total) and 1% or more (in any one year) of the municipality's valuation rather than 3% or 1% of the municipality's total acreage.
LD 2154 – An Act Concerning Technical Changes to the Tax Laws. (Sponsored by Sen. Perry of Penobscot County.) Enacted; PL 2007, c. 627
This Act makes a number of technical, housekeeping, grammar-correcting and reorganizational changes to the state's tax code. Among the substantive amendments of municipal interest, the Act expands the definition of "municipal cost component", which is the term used to define the appropriations to be funded by property taxes to provide services to the unorganized territories, to expressly include the cost of funding obligations of an unorganized territory under the terms of a tax increment financing agreement (TIF) approved by the Department of Economic and Community Development prior to January 1, 2008. The Act also directs the State Treasurer to specially manage dedicated components of the property tax revenue generated from the unorganized territories, such as the property tax revenue generated pursuant to TIF agreements.
LD 2202 – An Act To Allow a Municipality To Adopt a Program To Provide Property Tax Benefits to Senior Citizens. (Sponsored by Rep. Wheeler of Kittery.) Enacted; PL 2007, c. 635
This Act authorizes any municipality to adopt an ordinance that would create a so-called "volunteer property tax assistance program", which is a program that permits people owning homestead property in the municipality who are at least 60 years of age to volunteer their services to the town or city in order to earn a benefit up to a maximum $750 in value. The Act expressly allows the municipal ordinance to include additional programmatic or eligibility standards; for example, the municipal ordinance might include an income-test for eligibility, reduce the maximum benefit level or apply more specificity with respect to what type of volunteer services may be provided, identify who within the municipality administers the program, and how the actual "benefit" is delivered, etc. Because of the open nature of this enabling legislation, municipalities interested in moving forward with this local-option "volunteer property tax assistance" program would be well advised to consult with the municipal attorney before presenting an ordinance to the voters in order to be absolutely clear about all the issues associated with implementing this volunteer program that are not expressly addressed in the Act, such as the employment status of the volunteers with respect to workers' compensation and unemployment insurance, the degree to which the municipality's insurance program provides liability coverage for their activities, the administration of tax-related documentation, and whether the volunteers' benefits are provided directly in the form of remuneration or in the form of a set-off against their property tax obligation.
LD 2251 – An Act To Establish Municipal Cost Components for Unorganized Territory Services To Be Rendered in Fiscal Year 2008-09 and To Require Notation of Tax Enhancement Programs Approved by the County Commissioners. (Reported by Rep. Piotti of Unity for the Department of Audit) Emergency enacted; PL 2007, c. 636 (4/16/08)
This emergency Act establishes the so-called "municipal cost components" for the services provided to the Unorganized Territories (UT) in FY 09, which forms the basis of the property tax assessment that is levied against the UT landowners. According to this Act, the net municipal cost components for services rendered in FY 09 to the UT is $13.5 million, the county reimbursements for services is $5.6 million, the total deductions from the combined appropriations of $19 million is $4 million, and so the net property tax commitment for the UT is $15.1 million. The Act also directs the fiscal administrator of the UT to include information about Tax Increment Financing (TIF) economic development districts in the UT in the administrator's annual report, including details regarding costs and tax shifts resulting from, or anticipated to result from, the TIF districts.
LD 2274 – An Act To Amend the Municipal Tree Growth Reimbursement Formula. (Reported by Rep. Piotti of Unity for the Joint Standing Committee on Taxation.) Enacted; PL 2007, c. 639
This Act amends the municipal Tree Growth reimbursement formula for the purpose of improving its stability and predictability. The Act does not change the overall amount of reimbursement that would be annually appropriated for that purpose by the Legislature, but it smoothes out the distribution system by amending the reimbursement formula to: (1) utilize each affected municipality's full value (or "equalized") mill rate instead of the town or city's municipal mill rate; and (2) remove the town-by-town adjustment in the current formula that purports to subtract from the reimbursement that would otherwise be distributed the alleged value of the extra General Purpose Aid to Education school subsidy that the municipality receives because of the land that is enrolled in the Tree Growth program.
LD 2276 – An Act To Improve the Administration of State-Municipal Revenue Sharing. (Reported by Rep. Piotti of Unity for the Joint Standing Committee on Taxation.) Enacted; PL 2007, c. 662
This Act includes several recommendations of a working group made up of municipal officials by implementing technical amendments with respect to the administration (but not the distribution) of the municipal revenue sharing program, as well as amendments to the way municipal revenue sharing affects the municipal "LD 1" spending limit calculations. Specifically, this Act makes technical amendments to the revenue sharing law so that the State Treasurer can post on the state's website the projected revenue sharing distribution for each town and city no later than April 15 each year, and expressly directs the State Treasurer to make that posting by that deadline. This Act also limits the amount of the Local Government Efficiency Fund resources that are available for planning purposes to 10% of the Fund's annual capitalization, thereby providing 90% of the Fund for the direct implementation of actual efficiency projects, and further requires that those planning grants be matched on a dollar-for-dollar basis with local funds. This Act also clarifies that all LD 1 calculations of "net new state funding" be based on actual rather than projected revenue sharing receipts. Finally, if the revenue sharing distribution is reduced from the previous year rather than increased, this Act allows the municipality's property tax levy limit to be adjusted upwards to reflect that loss in state-based financial support.
LD 2305 – An Act To Restore Benefits under the Circuitbreaker Program. (Sponsored by Sen. Strimling of Cumberland County.) Emergency Enacted; PL 2007. c. 700 (4/24/08)
This emergency Act changes the limitations on the Circuit Breaker property tax and rent rebate program just enacted as part of the supplemental state budget (see LD 2289 under Appropriations and Financial Affairs) so that instead of repealing the indexing of the value of the property taxes that are recognized in the determination of eligibility, a maximum household income limit is created of $60,000 for a single-person household and $80,000 for a multi-person household. The Act provides that those income-based eligibility limits must be annually indexed for inflation.
LD 599 – An Act To Create an Airport Authority. (Sponsored by Sen. Marraché of Kennebec County.) Enacted; PL 2007, c. 563
This Act authorizes the creation of an Airport Authority for the purpose of enabling the creation of regional airports that both serve and are supported by multiple municipalities. The enabling legislation describes the necessary elements of an airport authority's charter, the general manner by which the airport authority's board of directors is elected or appointed, the airport authority's capacity to issue bonds the procedures to follow in order to ascertaining the airport authority's debt limits, the airport authority's capacity to acquire property and the procedures that must be followed if the airport authority exercises its right to use the process of eminent domain, and the airport authority's tax status. The express purpose of the Act is to provide a streamlined process for the creation of airport authorities without in any way precluding the operation of airports that may be created or operated pursuant to any other law or authority.
LD 1948 – An Act To Establish a Minimum Suspension for Negligent Operation When a Fatality Results from a Motor Vehicle Accident. (Sponsored by Rep. Wheeler of Kittery.) Enacted; PL 2007, c. 486 (6/30/08)
This Act requires the Secretary of State to suspend for three years the drivers license of a person who the Secretary determines has recklessly or negligently operated a motor vehicle so as to cause the death of another person.
LD 2101 – Resolve, To Change the Name of the South Bridge between Lewiston and Auburn. (Sponsored by Rep. Wagner of Lewiston.) Finally passed; Resolves 2007, c. 147 (6/30/08)
This Resolve renames the South Bridge crossing the Androscoggin River between the cities of Lewiston and Auburn the Bernard Lown Peace Bridge.
LD 2102 – An Act To Allow Road Associations To Determine Assessments According to Majority Vote Cast at a Duly Held Meeting. (Sponsored by Rep. Knight of Livermore Falls.) Enacted; PL 2007, c. 625
This Act provides more procedural detail and substantively amends the assessing methodology that may be used by the abutters on private roads or private ways to provide repair and maintenance services to those roadways pursuant to the "private road association" statute. Specifically, the Act: (1) removes the current requirement that the costs of road repair and maintenance must be apportioned among the abutters to the private road or private way on the basis of the assessed value of the owner's property and allows other assessment methodologies as long as they are "fair and equitable"; (2) defines road maintenance to include road plowing; (3) allows the notification of the road association budget meeting to be accomplished by e-mail; (4) establishes that the vote on the establishment of the assessment shall be based on a one-parcel-one-vote standard unless the association's by-laws allow each parcel to have two votes; and (5) authorizes but does not require that the notice to call a road association meeting may allow for one abutter to give his or her proxy vote to another abutter.
LD 2165 – Resolve, Regarding Legislative Review of Portions of Chapter 103: Sensible Transportation Policy Act, a Major Substantive Rule of the Department of Transportation. (Reported by Rep. Marley of Portland for the Department of Transportation) Finally passed; Resolves 2007, c. 159 (6/30/08)
This Resolve provides for the legislative review of Chapter 103 of the Department of Transportation's (DOT) rules regarding the Sensible Transportation Policy Act, as provisionally adopted by DOT. In 2002, the Legislature directed DOT to work with the State Planning Office to develop this rule in an effort to more closely link land use planning and transportation planning. The municipal portion of the law is Subchapter III. This subchapter is in similar form to the SPO's comprehensive planning rule in that it lays out the DOT's expectations with respect to various land use and transportation planning "policies", "goals" and "strategies" that municipalities will need to adopt in order to: (i) receive a consistency finding with respect to the transportation portion of a comprehensive plan; and (ii) receive either bonus points when applying for various transportation funds or be authorized to access certain incentive funds. In addition to the rule, the DOT has developed a handbook to assist municipal officials as they attempt to navigate the requirements of the rule.
LD 2176 – An Act Relating To Studded Tires. (Sponsored by Sen. Diamond of Cumberland County.) Enacted; PL 2007, c. 525 (6/30/08)
This Act allows the use of tires on the roadways between May 1 and September 30 that feature embedded blocks, studs, flanges, cleats or spikes provided those protuberances are fully retracted and not engaged during the May 1- September 30 no-stud time period.
LD 2196 – An Act To Make Supplemental Allocations for the Expenditures of State Government, Highway Fund and Other Funds, and To Change Certain Provisions of State Law Necessary to the Proper Operations of State Government for the Fiscal Years Ending June 30, 2008 and June 30, 2009. (Sponsored by Rep. Marley of Portland.) Emergency enacted; PL 2007, c. 538 (3/31/08)
This emergency Act is the supplemental budget designed to balance the Highway Fund budget for FY 08 and FY 09. Of interest to municipalities, this Act identifies the projected reductions in the Highway Fund allocation for the local road assistance Urban and Rural Initiatives Program (URIP) relative to previous projections of $620,000 for FY08 (from $25.9 million to $25.2 million) and $494,000 for FY 09 (from $26.1 million to $25.6 million). Under the terms of this legislation, the biennial reduction of $1.1 million would be aggregated and applied in FY 09 so as not to disrupt the anticipated FY08 distribution.
LD 2239 – Resolve, To Name a Road in Dexter after Harold Alfond. (Sponsored by Sen. Plowman of Penobscot County.) Emergency passed; Resolves 2007, c. 176 (3/31/08)
This emergency Resolve names a part of Route 7 that runs through the Town of Dexter the Harold Alfond Memorial Highway.
LD 2313 – An Act To Keep Bridges Safe and Roads Passable. (Sponsored by Rep. Marley of Portland.) Enacted; PL 2007, c. 647
This Act initiates a $160 million revenue bond to be issued over the next four years for the exclusive purpose of making improvements to bridges and minor spans. The debt service on the bonds is to be paid out of the TransCap Trust Fund. The TransCap Trust Fund is capitalized by dedicating the revenue generated by three motor vehicle fees: (1) a $10 increase in the registration fee for passenger cars, pick up trucks, sport utility vehicles, and commercial vehicles under 6,000 lbs. in gross vehicle weight (from $25 per registration to $35); (2) a $10 increase in the additional fee for obtaining a vanity license place (from $15 to $25); and (3) a $10 increase in the fee for filing an application for certificate of motor vehicle title (from $23 to $33). The effective date of the Act, and therefore the registration and title fee increases, begins on September 1, 2008.
Utilities & Energy
LD 1221 – An Act To Amend the Charter of the Kennebunk Light and Power District. (Sponsored by Sen. Sullivan of York County.) Enacted; P & SL 2007, c. 35 (6/30/08)
This Act amends the Kennebunk Light and Power District (the "District") charter to allow the District to provide retail electric service throughout the entire town of Kennebunk provided the District acquires by purchase the plants, properties, rights, privileges and franchises of any other public utility furnishing electric service to the public in the areas of Kennebunk that are not presently served by the District.
LD 1936 – An Act To Include the Town of Nobleboro within the Service Area of the Great Salt Bay Sanitary District. (Sponsored by Sen. Dow of Lincoln County.) Enacted; P & SL 2007, c. 38 (6/30/08)
This Act amends the charter of the Great Salt Bay Sanitary District to allow the district to supply wastewater services to the Town of Nobleboro, provided that service is approved by the voters of the expanded sanitary district at referendum.
LD 2041 – An Act To Decrease Energy Costs on Swans Island and Frenchboro. (Sponsored by Rep. Pingree of North Haven.) Enacted; P & SL 2007, c. 36 (6/30/08)
This Act allows an island electric cooperative on Swans Island and the Town of Frenchboro's islands to sell wholesale generation service to reduce the cooperative's cost of providing retail service provided the total power production capacity does not exceed 3 megawatts.
LD 2076 – An Act To Amend the Charter of the Norway Water District. (Sponsored by Rep. Millett of Waterford.) Emergency enacted; P & SL 2007, c. 32 (2/14/08)
This emergency Act amends the charter of the Norway Water District.
LD 2117 – An Act To Create the Starboard Water District. (Sponsored by Sen. Raye of Washington County.) Emergency enacted; P & SL 2007, c. 34 (2/20/08)
This emergency Act creates the Starboard Water District in the town of Machiasport.
LD 2133 – An Act To Amend the Cable Television Laws and Establish a Model Cable Franchise Agreement. (Sponsored by Rep. Bliss of South Portland.) Enacted; PL 2007, c. 548
This Act makes several changes to the laws regarding cable TV services. The Act: (1) uses various definitions in federal law of "cable television service", "cable television system" and "cable system operator" in order to clarify that the state laws apply to the provision of video services offered by any entity, not just traditional cable companies; (2) directs the Office of Information Technology within the Department of Administrative and Financial Services to adopt a model cable television franchise agreement for use by municipalities, and further directs that the model ordinance include at a minimum provisions regarding franchise fees, build-out requirements, "PEG" channels (public, educational and governmental access channels), and customer service standards; (3) directs the Office to file its report regarding that model agreement with the Legislature's Utilities Committee by December 15, 2008; (4) makes clarifying changes to the statutes governing required notices to subscribers regarding changes in billing practices and service options; (5) expands the privacy rights of subscribers; and (6) requires all cable/video providers to provide a copy of their franchise agreement on their website.
LD 2255 – An Act To Protect Maine's Energy Sovereignty through the Designation of Energy Infrastructure Corridors and Energy Plan Development. (Sponsored by Sen. Bartlett of Cumberland County.) Enacted; PL 2007, c. 656
This Act authorizes the Public Utilities Commission (PUC), if petitioned by the federal government, the Office of the Public Advocate, the Governor's Office of Energy Independence and Security, or a qualified developer, to initiate a "major substantive" rule making process to designate energy infrastructure corridors within the state for the purposes of siting energy transmission property, including electric transmission and distribution facilities, natural gas pipelines and other energy or carbon dioxide transport pipelines or conduits. Prior to designating such an energy infrastructure corridor, the PUC must notify, consult and accept comments from all municipalities in which the corridor would be located.
Once an energy infrastructure corridor has been designated, the PUC is authorized to issue certificates to entities interested in the actual construction of energy infrastructure.
The existing PUC authority to exempt utility construction from municipal land use ordinances on a case-by-case basis is expanded to include the construction of energy infrastructure within these utility corridors. The PUC's authority to exempt projects from local land use ordinances may not be exercised until it has adopted rules to establish a process and conditions for the exercise of this preemption authority.
The Act also authorizes the PUC to expand options for transmission and distribution utilities to enter into long-term contracts.
The Act creates the Governor's Office of Energy Independence and Security.
LD 2265 – An Act To Reduce the Amount Collected for the Purpose of the E-9-1-1 System. (Sponsored by Rep. Rines of Wiscasset.) Emergency enacted; PL 2007, c. 637 (4/16/08)
This emergency Act reduces the E-911 telephone surcharge from $.50 per line per month to $.30 cents per line per month. The Act directs the Emergency Services Communication Bureau within the Public Utilities Commission to conduct a review of the E-911 fund, including the fund's revenue and expenditure history and projections, and make a recommendation regarding the E-911 surcharge fund going forward. The Bureau's report must be submitted to the Legislature by February 1, 2009.
LD 2266 – An Act To Promote Municipal Wind Generation Development. (Sponsored by Sen. Martin of Aroostook County.) Enacted; PL 2007, c. 671
This Act amends Maine law in several areas all for the purpose of encouraging and enabling the development and ownership of wind energy projects by local governments, state agencies and rural electrical cooperatives. Among other changes, the Act: (1) expands the scope of the life-cycle cost analysis under the Energy Conservation in Buildings Act to include a review of any incorporation of wind and solar electricity generating equipment into public buildings; (2) amends the laws governing revenue-producing municipal facilities to include certain qualified energy-related projects under the Internal Revenue Code and ensures that municipalities may take advantage of favorable treatment in financing those revenue-producing project; and, (3) expands the duties of the Governor's Office of Energy Independence and Security to (i) monitor developments in technology, (ii) monitor developments in state and federal law, and, (iii) develop information resources, in an effort to assist municipalities and others in developing wind projects and other energy projects.
LD 2279 – An Act To Ensure Equitable Payment for E-9-1-1 Services. (Sponsored by Sen. Mitchell of Kennebec County.) (Mandate) Emergency enacted; PL 2007, c. 622 (4/15/08)
This emergency Act requires every municipality to contract with a qualified entity to provide public safety answering point (PSAP) services, and if any municipality fails to contract for those services, this Act requires the Department of Public Safety to provide those PSAP services and requires that municipality to pay the Department for those services.
The Act also requires the Public Utilities Commission (PUC), on its own initiative or at the request of the Department of Public Safety (DPS) or a municipality, to undertake a formal proceeding to establish the fees that must be paid by the municipalities for PSAP and dispatch services provided by DPS. In establishing these fees, the PUC must determine the revenue requirement for DPS's relevant dispatch and public safety answering point services and design the fee structure necessary to generate that revenue and ensure the fees reasonably reflect services provided.
LD 2283 – An Act To Implement Recommendations of the Governor's Task Force on Wind Power Development. (Governor's Act, sponsored by Sen. Bartlett of Cumberland County.) Emergency enacted; PL 2007, c. 661 (4/18/08)
This emergency Act implements the recommendations of Governor's Task Force on Wind Power Development in Maine. The primary focus of the Act is on streamlining the state-level regulatory review process for "grid scale" wind energy development projects by identifying the "expedited permitting areas" within the state, and providing more specificity with respect to the areas of the state that represent "scenic resources of state or national significance". The primary focus appears to be the administration of the "undue adverse impact on scenic resources" standard in the state's Site Location of Development law.
Although the Act does not appear to preempt municipal regulatory enforcement authority with respect to "grid scale" wind energy development, the elements of the Act affecting municipal government are: (1) a declared legislative policy that municipal regulators should "take every reasonable action to encourage the attraction of appropriately sited development related to wind energy consistent with all state environmental standards; the permitting and financing of wind energy projects; and the siting, permitting, financing and construction of wind energy research and manufacturing facilities"; (2) the definition of the "expedited permitting area" for "grid scale" wind energy projects to include all the organized portion of the state and specifically-identified areas of the unorganized and deorganized areas of the state; (3) an express renunciation by the state of its responsibility to enforce the construction and operation requirements for wind energy projects that are smaller than "grid scale"; municipalities are authorized but not mandated to enforce these requirements; and (4) a declared legislative intention that residents of a community that hosts wind energy facilities should be provided "significant tangible benefits".
Building Code Mandate?
The Legislature enacted LD 2257, An Act to Establish a Uniform Building and Energy Code (PL 2007, c. 699). By its terms, this legislation would appear to contain a number of mandates for municipalities over 2,000 in population. However, whether municipalities are actually bound by these mandates remains to be seen.
First, the Legislature did not enact an unfunded mandate. The law establishing protection for municipalities against unfunded state mandates is clear that the Legislature may only enact an unfunded mandate impacting municipalities if the Legislature declares the bill to be an unfunded mandate and the legislation then passes each chamber by a 2/3 vote. That did not happen with LD 2257.
Second, when the Legislature enacted LD 2257, it did so with a fiscal note attached declaring the bill to be a municipal mandate. Mandate law is also clear that the Legislature may enact a municipal mandate by a simple majority vote as long as the state reimburses municipalities for 90% of the municipalities' costs in complying with the mandate.
Some legislators have argued that LD 2257 is not a municipal mandate because the towns can increase their building permit fees to cover any additional costs associated with the new required activities. This view is incorrect. For obvious reasons, given the stated purpose of the unfunded state mandate law and the clear statute governing mandate law, options available to municipalities to cover their costs by means of additional municipal permit fees or other municipal revenue sources does not negate the obligation on the state to provide reimbursement to municipalities.
In the final days of the session, the mandatory building code bill, like all bills with fiscal notes requiring funding, was referred to the Appropriations Committee. It is at this point that the effectiveness of the mandates in LD 2257 becomes murky.
The new building code law includes language that on its face would lead one to believe that municipalities over 2,000 in population are mandated to enforce the state building code. However, the law also provides for a 'menu' of inspection options from which municipalities may choose. One of these options is for third-party inspections. This third-party inspection option entails forcing the citizen doing the construction to hire a "certified third-party inspector" to write an inspection report detailing that the construction project satisfies the code. This report must then be presented to the municipality in order to receive a municipal certificate of occupancy. All the other options on the menu include the more traditional municipal inspections by municipal or regional code enforcement officers.
The Legislature's non-partisan Office of Fiscal and Program Review, which is responsible for crafting fiscal notes, indicated on the fiscal note for LD 2257 that the municipal cost associated with enforcement was "insignificant". In the course of the Appropriations Committee's review of the fiscal note, it became apparent that OFPR is of the opinion that the state is only obliged to fund 90% of the costs of the least costly enforcement option on the menu, regardless of the menu option actually chosen by a municipality. Clearly, the passive receipt of a third-party inspection report is the least costly option to the municipality. OFPR sketched a draft fiscal note assuming that the state would only reimburse municipalities for passive receipt of third-party inspections. This draft fiscal note suggested $2 per transaction as reimbursement to municipalities.
According to both OFPR and lobbyists in support of the bill, all other options on the menu including municipal inspections are voluntary and the state does not intend on providing reimbursement to municipalities.
In an effort to emphasize this interpretation of the bill, Senator Peggy Rotundo (Androscoggin Cty.), Senate Chair of the Appropriations Committee, read the "legislative intent" with respect to the scope of the mandate into the record on the floor of the Senate on the final day of the session:
"Men and women of the Senate, I do want to read in the legislative intent on LD 2257. I want to read this into the record, my comments deal with the issue of enforcement and the role of municipalities.
The Legislature recognizes that enforcement of building codes at the local level is the most efficient and effective means to yielding the public benefits that these codes can provide.
It is the intention of this legislature to increase compliance with the Maine Uniform Code in towns over 2,000 by maximizing options for local inspection.
The Legislature intends for inspection by third-party certified inspectors to be an option available for all towns which will lay the responsibility for inspection on private parties rather than on the municipalities. Should municipalities elect to use this third-party option, it is not the intent of this law to hold municipalities responsible for any act except for the receipt and filing of the report of a certified inspector prior to the issuance of a certificate of occupancy. It is not our intent for example that municipalities shall be liable for the accuracy of the inspection report.
Should municipalities elect to use more direct or intensive enforcement options such as use of code enforcement officers on payroll it is our intent that those towns do so at their own cost which the law allows to be recovered in building permit fees.
Whether the state should provide reimbursement for all the options on the menu is an interesting subject for further discussion. However, it is quite clear that if no reimbursement is provided for any of the other menu options, then these options are not mandatory. In other words, the "shalls" in the bill relating to municipalities are only effective to the extent the Legislature is willing to provide reimbursement funding. If the Legislature chooses not to reimburse the costs associated with an otherwise mandated activity, municipalities are not bound to undertake the activity. If the Legislature is only going to provide reimbursement of $2 for the costs associated with the passive receipt of third-party inspection reports, then this is the entire scope of the mandate. In other words, everything else in the bill that appears to be a municipal mandate but for which no reimbursement is going to be provided is in fact optional and not mandatory as a matter of law.
Lastly, regardless of its scope the mandate does not become effective until July 1, 2010 -- the next biennium. Specifically, all municipalities that currently enforce a "building code" will be mandated to enforce the state building/energy/ventilation/radon code beginning June 1, 2010. All other municipalities over 2,000 in population will have to begin enforcing the mandatory state building/energy/ventilation/radon code by January 1, 2012. Accordingly, the state did not actually have to fund anything in the current state budget.
In towns under 2,000 in population, the Legislature is mandating that all construction projects comply with the state building/energy/ventilation/radon code beginning July 1, 2010. However, there is no obligation on the municipalities to enforce the state building/energy/ventilation/radon code.
The true effectiveness of all the mandate-sounding language in this Act will not be known until the Legislature makes decisions with respect to reimbursement funding next year. Furthermore, the exact scope of the building code law in its entirety won't be known until the building code board begins its work next year.
In the final analysis, did the Legislature pass a mandate that municipalities over 2,000 enforce the new state building/energy/ventilation/radon code? Answer: Kinda.