Sprawl Fever
(from Maine Townsman, December 1999)
by Linda Lockhart, Legislative Advocate, MMA

When it comes to land use issues, good times don’t roll – they bump and grind, set your teeth on edge and cause folks to butt heads! Even the vocabulary is painful it seems; one word certain to elicit moans and groans of late is "sprawl". It has been said around the State House that no less than 26 different subcommittees are currently working on sprawl and land use issues. There’s farm sprawl, state-driven sprawl, sprawl and drinking water, and sprawl and subdivision. All these legislative initiatives are tied directly to our strong economy.

Legislative Task Forces

Most of these legislative task forces are considering recommendations that may, or may not find their way to a land use near you. Some highlights of current areas of focus include:

Farm Sprawl

The LD 449 (An Act Requiring Disclosure to be Made to Purchasers of Land Abutting Agricultural Land) group is focused on agricultural adjacency issues. Originally, the bill sought to provide notice to those buying land next to a farm that working farms are known to make noise, attract flies, and release odors. The notification would help ensure that the buyer’s awareness would reduce the number of complaints later. Now, however, the Department of Agriculture is considering a resurrection and expansion of an old registration law that required certain activities, such as well drilling, to be set back 100 feet from abutting registered farmland. The new version would not require registration, or any type of notice, but would require the 100-foot setback from farmland. Unspecified are by whom and how the setbacks would be enforced.

Additionally, in a proposal to amend 17 MRSA 2805, the law that says farm operations cannot be considered a nuisance as long as best management practices are used, the Department of Agriculture wants to remove the word "commercial" from the definition of farm so that any farm, or "farm-like" operation would qualify for the nuisance protection. It remains unknown how this would interact with the right to farm preemption of municipal ordinances also provided by this section of statute. Presumably, any nuisance land use activity from junkyard to dog pound could qualify for nuisance protection, as long as it uses best management practices to grow a little hay, or any "farm product," which is defined as "plants and animals useful to man."

State-driven Sprawl

The Task Force on State Office Building Location, Other State Growth-Related Capital Investments and Patterns of Development issued a working paper in preparation for recent public hearings held in Augusta. According to the working paper, the task force’s objectives are:

1) To meet the demand of municipalities for establishing new or updating existing comprehensive plans;

2) To maintain the freedom to choose to live where one wishes, understanding that the costs of developing rural lands outside of service centers will be born by individuals based on their decisions;

3) To preserve lands that support rural economies and enterprises and that provide public access to recreational opportunities and scenic vistas;

4) To put service centers on an equitable fiscal footing and promote the preservation and revitalization of downtowns;

5) To identify the part of the housing market that prefers the traditional, compact New England town setting, get that information to developers, and reduce the obstacles that unnecessarily inhibit this form of development;

6) To take tax pressure off current residents of fast-growing suburbs as their towns try to absorb new residential development; and

7) To recognize the overriding impact of transportation policy on development patterns and design transportation systems that balance the needs of mobility, safety, economic development and quality of life.

The Task Force is considering a number of recommendations to achieve these objectives, just a few of which are:

• Increase funding for comprehensive planning;

• Provide incentives for implementation of consistent comprehensive plans;

• Improve the Comprehensive Planning and Land Use Regulation Act;

• Strengthen impact fee enabling statute;

• Reduce Farmland Tax Program penalties;

• Establish Blue Ribbon Commission to study comprehensive tax reform to affect land use decisions;

• Revise Right to Farm Law to reduce conflicts in rural areas;

• Revise subdivision law to discourage the sale of rural land for subdivision development;

• Fund Municipal Infrastructure Trust Fund;

• Direct state capital investments to service centers and locally designated growth areas;

• Enact a second-tier community revenue sharing formula targeted for service centers;

• Work with municipalities to develop model ordinances that accommodate "smart growth" design standards (for example, cluster development or shared driveways) and provide for flexibility in zoning regulations to allow for traditional, compact development in designated growth areas;

• Direct MDOT to provide guidance to municipalities on road planning, road maintenance, sidewalks, and neighborhood involvement to assist them in preserving traditional downtowns and compact neighborhoods;

• Give MDOT more authority to review new driveway applications on rural arterial highways;

• Fund road upgrades in order to eliminate posted roads from affecting rural resource economy areas.

Sprawl and Drinking Water

The Task Force to Study the Improvement of Public Water Supply Protection struggles with the land-use tension between protection of source water and development. The best way to protect the drinking water supply is to separate it from development and associated sources of contamination, but the tools to achieve that end are not so obvious. The best protective mechanism is for the public water supply district or authority to purchase the land near the source, but that is not always possible. Clean drinking water is unquestionably a vital and valuable resource that no one is interested in jeopardizing. What is lacking are rational, scientificially-based and easily administered land use regulatory models that will afford reasonable protection to underground water resources while respecting the human activity that must occur on the Earth’s surface. Municipalities are called upon, through their regulatory efforts, to arbitrate the differences between the strictest water protection and the interests of human activity. It’s a no-win position.

At the most recent meeting of this task force an "anti-degradation" standard was proposed to be applied to development near a public water supply source. Under this standard, a proponent of a development project would have to prove that the project would not contaminate the supply. While the standard sounds reasonable initially, it would be almost impossible to prove a negative effect as required. Few of us would be around to consider such proposals if we had to prove that we would not degrade the Earth by our presence here.

The Task Force seems close to consensus on a proposal to move the Drinking Water Program from the Department of Human Services (DHS) to the Department of Environmental Protection (DEP). According to DEP’s David Lennett, Bureau Director for Remediation and Waste Management, there are several revolving funds at the two agencies that could be combined to achieve source protection more efficiently and with less cost. Lennett said that it makes sense to have the functions combined in one agency if the state is to go to the next level of strategic thinking regarding groundwater.

A subcommittee of the full Task Force explored ways to use the shoreland zoning model for application to the protection of drinking water supplies. In its currently expressed form, this would be a model ordinance that municipalities would have the option to adopt and enforce, if they so choose. Municipalities could defer to the State and, in that case, the State would regulate the land use directly.

The Task Force’s proposals are very preliminary at this time and await refinement and adoption by the group as a whole.

Sprawl and Subdivision law

After listening to the public testimony on LD 1457 (An Act to Decrease Restrictions on the Sale of Land), the Legislature’s Natural Resources Committee was pretty confused about subdivision law. They had good right to be, because throughout the state, attorneys, developers, planning board members and private citizens are universally confused about subdivision law.

LD 1457, if enacted, will allow creation of an extra lot, above what would be excepted by the current law, as long as the two new lots (one allowed by current law and one additional allowed by the new exception) would each be no more than 140% of the municipality’s minimum lot size. The underlying theory is that, assuming the goal is to further subdivide the two new lots, the 140% provision would prevent further subdivision and slow sprawl.

At the hearing, a large share of the testimony focused, not on the proposed new exception, but on the damage done under color of the current gift exemption.

The Committee asked MMA and the State Planning Office to research the application of subdivision law and come back to the second session with recommendations for improving the law. The directive expresses these goals:

• To enable a landowner to sell off small parcels of land to generate income without creating a subdivision;

• To discourage the sale of land to developers who will create subdivisions, and

• To prevent sprawl.

After holding public meetings in Springvale, Windham, Bangor, and Presque Isle, and meeting with planners in Turner and Fairfield, it seems more convincing than ever that these three goals are mutually exclusive. One cannot prevent sprawl while enabling landowners to sell off small parcels of land to generate income. Unreviewed development springing up along the highways and private roads is no longer seen as preferable to subdivisions, created by developers and reviewed by local planning boards. Perhaps the largest contribution to sprawl is facilitated by the exceptions to the definition of subdivision law. MMA and the State Planning Office are in the report-writing phase of the task and expect to provide recommendations to the Committee in January.

Now is the time!

There can be little doubt that a booming economy increases the pressures on land use and its regulation. Since the 1950s, every upward cycle of the economy has been followed by legislative interest in land use and subsequent new laws or amendments to laws governing land use. Evan Richert, Director of the State Planning Office, theorizes that the current jazzed up economy will continue to ride the wave of the baby boom generation for much longer than would be expected in their absence. Baby boomers are entering the portion of their lives (45-65) where they will be characterized as "net savers" (presumably, they will have more money than that required for basic needs). They will have money to spend and time in which to spend it. Their hunger for land will keep development pressure and sprawl on the front burner until we can’t ignore its bubbling and smoking any longer. Now is the time! This is the place!