It’s Not All About the Budget….

(from Maine Townsman, April 2010)
By Kate Dufour, Legislative Advocate, MMA

If you asked any five people who hang around the State House to describe the centerpiece of the 2010 session, the most likely response would be “money,” or better yet, the lack thereof. Clearly, most of the chatter in the halls of the Capitol Building centered on the efforts of the Appropriations Committee to bridge the $310 million revenue shortfall in its development of the FY 2010-11 supplemental General Fund budget. While the Appropriations Committee undertook that task, other legislative committees quietly sorted through the details of several non-budget related bills of significance.

What follows is a brief description of the most relevant municipal issues addressed by the Legislature in the last three months. More detailed descriptions of these bills can be found in the New Laws article in this edition of the Maine Townsman.

Culverts (LD 1725). Despite the fact that Maine’s towns and cities were getting hammered through the budget process, the Natural Resources Committee seriously debated enacting the Department of Environmental Protection’s (DEP) proposed permit-by-rule standard for achieving “natural stream flow” in what came to be known as the “culvert bill”. As originally developed, the rules would have increased the cost of local road repair and maintenance projects by mandating communities to install much larger culverts at stream crossings, or even bridges where culverts used to suffice. Due to the efforts of many legislators and municipal officials, the bill was amended to alleviate the fiscal impacts on municipalities (and other impacted parties) by making the new culvert standard immediately applicable to “new crossings” only, and further directing the DEP to start the rulemaking process over again to elicit additional comments on the impact of the proposed rules. A description of LD 1725 is found in the “Natural Resources” section of the New Laws article.

Local Option (LD 1121 and LD 1717). This session, the Legislature provided municipalities with the authority to locally administer two politically popular programs: (1) the elderly tax deferral program; and (2) the “clean energy improvement financing” program.

Elderly Tax Deferral Program (LD 1121). As enacted, LD 1121 authorizes the legislative body of a municipality to adopt an ordinance creating a program allowing all homeowners 70 years of age or older to have the property taxes for their residences (and the land upon which the residence is located) deferred for an indefinite period provided the applicant has lived in the homestead property for at least 10 years and has an income at the time of application that is less than 300% of the federal poverty level. A detailed description of LD 1121 is provided in the “Taxation” section of the New Laws article.

PACE Legislation (LD 1717). This emergency legislation is often referred to as the Property Assessed Clean Energy Act, or PACE Act. The Act authorizes municipalities, working in conjunction with the Efficiency Maine Trust (Trust), to adopt ordinances establishing property assessed clean energy programs. Through these PACE programs, property owners in a participating municipality can apply to the town or city for funding from the Trust to finance an energy savings improvement to their property, and the financing of that debt would be administered by the municipality or, by arrangement, the Trust. A detailed description of LD 1717 is found in the “Utilities and Energy” section of the New Laws article.

Medical Marijuana (LD 1811). The overarching purpose of LD 1811 was to enact the recommendations of a task force that was formed to help implement the medical marijuana law adopted by the voters at the November 2009 referendum election. As enacted, registered patients can obtain the authorized medical marijuana by either growing their own, designating a caregiver to grow the marijuana on their behalf or designating a dispensary to provide the marijuana. The issue of most importance to municipalities is the authority to regulate the number and location of medical marijuana dispensaries. As enacted by the Legislature, the law clearly addresses one municipal concern with the dispensary legislation, and provides some help with another.

Confidentiality. As finally enacted, the medical marijuana law is clarified to enable municipalities to appropriately regulate the location and siting of medical marijuana dispensaries without having to dance around confidentiality issues. As adopted, the law clarifies that with the exception of patient, caregiver and physician identification data, all other dispensary information (i.e., location, the dispensary’s board membership, etc.) is not considered confidential. This clarification in the law enables municipalities to appropriately engage the public in the creation of ordinances guiding the siting of these dispensaries.

Local Control Over Dispensaries. Municipal officials also raised a concern with the amount of local control provided to municipalities in the regulation of medical marijuana dispensaries. According to the law adopted by the voters, municipalities are expressly authorized through general zoning authority to regulate the number and location of dispensaries. For some municipal officials, the zoning authority was not strong enough, and there was a municipal interest in having more regulatory discretion over medical marijuana dispensaries. In an effort to address this concern, several municipal officials advocated for an amendment to the law that would require pharmacies to dispense the medication. Although LD 1811 as finally enacted does not go in the pharmacy direction, it does limit the number of dispensaries in the first year of implementation to one in each of the state’s eight public health regions. The municipal regulatory authority provided in the underlying law is somewhat expanded. In addition to zoning, municipalities are authorized to apply other types of reasonable municipal regulation to the dispensaries, such as a municipal site plan review ordinance.

A detailed description of LD 1811 is found in the “Health and Human Services” section of the New Laws article.

Tree Growth Notification (LD 1635). A law was enacted several years ago requiring municipal assessors to formally notify landowners with property in the Tree Growth program who failed to meet their 10-year updating certification requirements, providing them with a 60-day opportunity to do so. The law was so poorly written that if administered strictly by its terms, the landowners could not actually cure their noncompliance, even with the 60-day extension. As originally crafted, LD 1635 would have effectively provided those landowners with a one-year extension rather than just 60-days. As a group, municipal officials do not believe Tree Growth landowners need to be so extensively coddled, and a pre-deadline notice procedure was enacted instead. A detailed description of the notification procedures of LD 1635 is found in the “Taxation” section of the New Laws article.

School Consolidation Fix-up (LD 570). On November 3, 2009, the voters of Maine decided not to repeal the school consolidation law that was enacted by the Legislature in 2007 and amended in 2008. Few legislators, however, interpreted that vote to mean that the consolidation law was anywhere near perfect. The difficulty facing school systems in very rural parts of the state to conform to the consolidation standards, combined with the imposition of financial penalties for noncompliance which would obviously impact the quality of those students’ education, were among the issues that unquestionably needed to be fixed. On top of that, there was very little transparency in the school consolidation law because many of its most significant flexibility provisions were never enacted into Maine statutes but were instead enacted as “unallocated law”, which means that those provisions were not published in the red law books or posted on the “Maine Statues” website. LD 570 was enacted as the school consolidation law’s second major “fix-up” bill, the first fix-up bill was enacted in 2008. A complete description of LD 570 as finally enacted is found in the “Education” section of the New Laws article in this edition of the Townsman.

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