MMA Takes Position On Ballot Questions: Executive Committee Opposes Three Questions
(from Maine Townsman, August/September 2000)
by Geoffrey Herman, Director of State & Federal Relations, MMA

On July 24th, MMA’s Executive Committee reviewed the six questions that will appear on the statewide ballot on November 7, 2000 and developed MMA’s position on several ballot measures that the Committee believes carry a compelling municipal interest.

Beyond the various federal and state political races, six questions will appear on the statewide ballot – three citizen initiatives, two constitutional amendments and one referendum ratification of a legislative act. Those questions are listed below in the order they will appear on the ballot, followed by the position taken by the Executive Committee, followed by an explanation of the Executive Committee’s decision, where appropriate.

A summary of all six ballot questions was provided in the May, 2000 issue of the Maine Townsman. A notice of the Executive Committee’s July 24th meeting was provided in the June issue of the Maine Townsman, along with an invitation to municipal officials to communicate with your Executive Committee members regarding any of these ballot issues.

Citizen Initiatives

QUESTION #1. Should a terminally ill adult who is of sound mind be allowed to ask for and receive a doctor’s help to die?

The Executive Committee voted to take no position on Question #1.

QUESTION #2. Do you favor requiring landowners to obtain a permit for all clear-cuts and defining cutting levels for lands subject to the Tree Growth tax law?

The Executive Committee voted to oppose Question #2.

If passed, this initiative would require landowners to obtain a permit from the Maine Forest Service before initiating a forestry "clear cut" as that term is defined in law. The criteria for obtaining the permit would be a finding that the clear cut is silviculturally justified, will not result in undue ecological damage, and there are no reasonable alternatives. A new process for citizen appeal of the proposed permit is included in the permit consideration.

The initiative would also establish that no timber harvesting activities on land enrolled under the Tree Growth tax law may exceed sustainable cutting levels over any rolling 10-year period. The term "sustainable level" means that the yearly allowable cut levels may not exceed the average annual growth during the past 10 years. The clear cut permit and harvesting level requirements would be developed into rules by a 9-member panel made up largely of loggers, foresters, and forestry scientists.

The Executive Committee adopted the recommendation of the Association’s Legislative Policy Committee (LPC) to oppose the citizen initiative because there are several serious flaws with the wording of the measure that could cripple normal and healthy timber harvesting activity.

First, the initiative inappropriately takes a sustainable harvesting goal included in a 1996 report on forest management out of the context of that report and embeds it in the Tree Growth tax law, where it doesn’t fit or belong.

Second, there is a sentence inserted into the middle of a more-general sustainable harvesting standard that creates significant problems of legal interpretation, enormous questions of enforcement capacity, and serious limitations on appropriate silvacultural management. That sentence reads as follows: "This (the sustainable cutting levels) means that the yearly allowable cut levels may not be greater than the average annual growth during the past 10 years."

According to some legal experts, this sentence would entirely control allowable harvesting levels on all land enrolled in the Tree Growth program so that landowners would be required to harvest very small amounts of wood on an annual basis. According to typical growth patterns, just one-third to one-half a cord per acre could be harvested each and every year. In the alternative, according to other legal interpretations, this sentence could possibly allow "banking" of that .3 to .5 cords per acre for up to 10 years, yielding a harvesting limit of three to five cords per acre maximum harvest over any rolling 10-year period.

Neither interpretation provides an appropriate regulatory framework to control timber harvesting activities. The Executive Committee makes the point that even if the initiative would allow for a 10-year "banking" of harvesting limits, the forest doesn’t grow in 10-year cycles and harvesting limits should not be established on such an arbitrary cycle. Sound forest practices would allow a more intensive harvest of a mature stand of timber (or a diseased stand or a windblown, damaged stand, etc.) in order to open up the emerging forest to the light and growth environment it needs to grow efficiently.

Finally, the standards developed in the citizen’s initiative to obtain a permit for clearcutting activities (rather than the mere notice requirement under current law) are too subjective to be efficiently implemented, and the process to appeal any permitting decision made by the Maine Forest Service appears to allow for too broad an appellant class. Under the traditional doctrine of appellant "standing", only those individuals who can articulate a particularized injury related to a permitting decision (abutters, for example) have standing to appeal. On this point the forestry initiative is murky, but it could be interpreted to grant appellant standing to the general public.

QUESTION #3. Do you want to allow video lottery machines at certain horse racing tracks if 40% of the profits are used for property tax relief?

The Executive Committee voted to oppose Question #3.

This ballot measure would allow the operation of video lottery terminals at commercial horse racing tracks that conduct live racing on more than 100 days in each of the previous two calendar years (i.e., Scarborough Downs). According to the law that would be enacted with a positive vote on this measure, the net video lottery terminal income would be distributed seven ways. Forty percent of that income would be placed in the Local Government Fund, which is the fund from which municipal revenue sharing is distributed. Twenty-six percent of that income would go to the owner of the video lottery machines, twenty-three percent would go to the person licensed to operate the video lottery machines, five percent would supplement harness racing purses, three percent would go to the Department of Public Safety to cover administrative costs, two percent would go for the benefit of state agricultural fairs, and one percent would be used for sires stakes purses.

The fiscal note on this proposal has been prepared by the Legislature’s Office of Fiscal and Program Review. To summarize the fiscal implications, it is anticipated that the Local Government Fund would be increased under this measure by approximately $50 million (a 50% increase) by its second full year of implementation.

Although the opportunity to obtain significant property tax relief is extremely tempting, especially for those municipalities facing punishing mill rates in the $20 to $27 per thousand range, the Executive Committee voted to oppose this proposal for a number of reasons.

First, the Executive Committee is concerned that the introduction of this gaming initiative, which is so completely targeted to just Scarborough Downs, will ultimately lead to a proliferation of similar or expanded gambling systems throughout Maine.

Second, there was a deeply felt understanding among the Executive Committee members that municipal leaders are not interested in developing a reliance on gambling revenue with all the negative consequences that can accompany a pervasive gambling culture. The Executive Committee members were concerned about the increased financial pressure on families unable to afford the gambling temptation. The municipal officials were also concerned about the need for significantly increased law enforcement capacity to deal with Maine’s exposure to large scale gambling operations.

Setting aside the concerns about high-level gambling operations in Maine, the Executive Committee is also familiar enough with the complicated financial relationships between the state and the municipalities to believe that the promise of property tax relief could fade over time as the state re-adjusts its contributions to local government. In addition, concerns were expressed about the exclusivity of the benefits going to Scarborough Downs, the vagueness of the definition of "video lottery machines" to potentially allow even Las Vegas-style slot machines in Maine, and the apparent lack of strong state oversight with respect to the monitoring and distribution of the gambling proceeds.

Constitutional Amendments

QUESTION #4. Do you favor amending the Constitution of Maine to allow the Legislature to provide for the assessment of land used for commercial fishing activities based on the current use of that property.

The Executive Committee voted to oppose Question #4.

With this question the voters are being asked to approve a proposed Constitutional amendment that would allow the Legislature to provide for the assessment of real estate used for commercial fishing purposes at its "current use" value. As a matter of current constitutional and statutory law, forested land, farm land and open space land is assessed for tax purposes at its "current use" rather than market value. Under this proposed constitutional amendment, the current use assessing requirement would also apply to "waterfront land used for commercial fishing activities".

The Executive Committee fully understands the pressures of an exploding real estate market on the "working waterfront", but there are a lot of questions about this proposal that municipal officials would like answered before they feel comfortable supporting the measure. Based on past municipal experience with "current use" systems, the Executive Committee has taken the position that when there are many questions about the details of a constitutional-level tax policy change, the municipal position should be "no" until those questions are answered. Unfortunately, the details pertaining to a constitutional amendment often don’t emerge until after the amendment is adopted, when it is "implemented" in statute.

The Executive Committee has identified four essential questions to be answered:

1) Will the implementing legislation include a reimbursement system for the lost tax revenue, similar to the Tree Growth program, or no reimbursement, as is the case with the Farmland program and the Open Space program?

2) Will the implementing legislation or the subsequent implementation by Maine Revenue Services create a specific per acre "current use" value for the commercial fishing land (presumably through a capitalization rate system) as is the case with the Tree Growth Program, or will it be the looser, "suggested parameters system" as is the case with the Farmland program, or will it be the "scaled assessment reduction system" as is the case with the Open Space program?

3) How will the assessors know what land should be included and what land should not be included in the commercial fishing land designation? In some applications, the answer will be easy, such as the lot upon which a sardine factory or lobster pound is located. In other cases, though, the question will be tricky. The acreage will have mixed uses. In the case of a lobsterman with a recreational license who has a home on the coast, with a yard going down to the water to a dock and an equipment shed, is the lobsterman’s house lot eligible for the current use exemption? Is half of it?

4) Will there be a meaningful penalty system for withdrawing land from the special taxation category for short-term enrollments, or will the penalty for short term enrollment be the mere constitutional minimum, often referred to as "five-year back taxes, plus interest"? For short-term enrollments, where the public has not obtained a significant benefit from the land being specially classified for taxation purposes, the constitutional penalty is really no penalty at all, and what is created is merely a tax deferral program with extremely limited public value.

QUESTION #5. Do you favor amending the Constitution of Maine to end discrimination against persons under guardianship for mental illness for the purpose of voting?

The Executive Committee voted to take no position on Question #5.

Referendum

QUESTION #6. Do you favor ratifying the action of the 119th Legislature whereby it passed an act extending to all citizens regardless of their sexual orientation the same basic rights to protection against discrimination now guaranteed to citizens on the basis of race, color, religion, sex or national origin in the areas of employment, housing, public accommodation and credit and where the act expressly states that nothing in the act confers legislative approval of, or special rights to, any person or group of persons?

The Executive Committee voted to table its decision on Question #6 until its next scheduled meeting in September.