(from Maine Townsman, June 1985)
by Madge Baker, Esq., Executive Director, Southern Maine RPC
In the mid to late 70's southern Maine experienced sufficiently high levels of growth to elicit interest in and support of growth management techniques which would be acceptable in Maine communities. A few municipalities adopted a variety of measures. Then the interest rates soared and market forces slowed development. Little more was heard about growth management ordinances. Now, however, the boom is back and the debate has revived. Only this time there is experience and case law to take lessons from, both in Maine and throughout New England. The strategies which have been adopted in Maine may not include the kind of land banking program Nantucket has launched to take land off the open market, or attempts to tie growth limits to classroom capacity being tried in New Hampshire; but they represent a broad enough spectrum to provide choice worth considering.
Maine's Version of Growth Management
The most traditional growth management technique is large lot zoning, sometimes referred to as "snob zoning." Just because it has been around a long while does not, however, mean it has lost its appropriateness in certain situations. If farmland and open space are to be preserved, large lots are a prerequisite. If water quality is to be protected in areas without public sewers, large lots are often necessary. Increased lot sizes are being proposed for the Casco Bay Islands as a growth control measure, because the islands do not have the soils to handle highly concentrated development the marketplace might bring to the islands; and the islands have other valuable natural resources which intense development could destroy.
A second technique for controlling growth was described in the May 1977 TOWNSMAN in an article on Arundel written by Randall Arendt. Arundel's ordinance limits the number of building permits issued by the town each year to maintain a steady growth rate, a rate equal to the average growth rate occurring in the municipalities around it. It is a simple ordinance which makes more permits available for custom built houses than houses built on speculation, but otherwise treats all housing the same.
Other municipalities with ordinances similar to Arundel's include Shapleigh, Eliot, Kennebunkport, and Wells, (Ordinances in Kennebunk and Sabattus also limited the number of permits issued. For more discussion see the next section.) Kennebunkport issues fewer permits for dwellings which will be located in the rural Farm and Forest District than for dwellings in other areas, in order to control the location of growth as well as the quantity. It also awards points to those applications in the queue for lots served by public water and public sewer. The Wells ordinance is very similar to Arundel's with preference given to dwellings proposed on sewers or on soils well suited to subsurface waste disposal, and to custom built houses. Eliot's ordinance contains the most elaborate point system of those mentioned. The system gives a higher score to units which will be located on large lots with good soils, no wetlands, good road access, and town water.
In 1977 the Town of Windham adopted an ordinance unique in Maine. It divides up the period between then and the year 2000 in approximately five-year increments and specifies how much acreage during each five-year period can be converted from existing uses to different uses. The primary purpose of the ordinance is to maintain the character of the community by requiring that the mix of uses existing in 1977 will persist as the town grows in size. The ordinance will also act as a control on the rate of growth during the years of intense development pressure. Thus far supply has remained ahead of demand with respect to acreage. Since the results of the ordinance have not yet been well documented, the town planner intends to analyze how the ordinance has impacted the municipality, and whether it has maintained the land use mix the municipal development plan calls for.
In 1982 Cape Elizabeth amended its zoning ordinance to include provision for transfer of development rights within its Residence A District. (To date the TDR technique has not been used.) The TDR provisions allow development at a higher than normal density in the A district, providing the landowner preserves at least an equal amount of land for conservation, parks, or recreation, thereby conserving within the town open space, natural or historic areas, farmland, and water quality. It is encouraging to see a Maine town actually adopt a TDR program. It is a planning and growth management technique which has been talked about here but not implemented. TDRs guide the location of growth into some areas and at the same time compensate owners of land which will not be developed at all or developed at a much lower density. Other towns interested in growth management are urged to look seriously at the possibility of implementing a TDR program designed to meet their land use objectives.
Moratoria are not really growth management ordinances; they are emergency measures of very short duration which give the municipality only enough time to put some more permanent controls in place. Moratoria have been properly employed in Maine to halt residential development, commercial development, the erection of signs, and sewer hookups, for example, and thereby prevent landowners from coming in with applications while the municipality drafts and enacts new regulations.
The first Maine growth management case was Begin v. Inhabitants of the Town of Sabattus (Dec. 1979). The Sabattus growth management ordinance limited to four the number of construction permits which could be issued each year per subdivision. The result was the plaintiff, a mobile home park developer, could put only four new homes in his park, while a person with a development consisting of conventional buildings could locate any number of units within his development, so long as no more than four new buildings were constructed in any one year. The Court ruled that the municipality did have the necessary legal authority to implement some slow-growth techniques, but that this particular ordinance unfairly discriminated against the mobile home park developer. Since the purpose of the ordinance was to limit growth, all developers must be permitted to build the same number of dwelling units in the Maine Supreme Court's view.
A second case was decided by the Superior Court last year. Barry v. Inhabitants of the Town of Kennebunk. The Kennebunk ordinance placed a cap on the number of building permits issued in one year. The ordinance included a point system to influence where growth occurred and to establish priorities in issuing permits. It was challenged because one developer wanted more than his "share" of permits in order to be able to complete a large subdivision. The judge ruled that the ordinance must bear a reasonable relationship to public health, safety, etc., and must not be discriminatory. On the basis of the evidence presented, the judge concluded there was no reasonable relationship to health, etc. because "there is no indication that any municipal service is in danger of being overburdened by population growth." The case stands as a warning to any municipality contemplating a growth management ordinance to document as best it can with studies, capital improvement plans, etc., the need for slowing growth. Kennebunk acted in anticipation of what was about to occur in the town, and indeed what has occurred since the ordinance was declared invalid--submission of plans and applications for a record-setting number of units. The judge's opinion leaves many unanswered question, such as: is the point system likely to be found valid in another case (its purpose was not apparently understood); and will another judge permit a municipality to regulate growth before growth becomes unmanageable, or must the municipality wait until there is an emergency to enact it.
The most recent growth management case was decided by the Supreme Court of Maine on April 25 of this year. Ralph Tiset v. Town of Ogunquit and Erland Coombs v. Town of Ogunquit. The Court reaffirmed its position in the Sabattus case. It articulated the tests it would apply to determine whether a particular ordinance is legal. They are: "1. The object of the exercise must be to provide for the public welfare. 2. The legislative means employed must be appropriate to the achievement of the ends sought. 3. The manner of exercising the power must not be unduly arbitrary or capricious. It is similarly well-established that the party challenging the ordinance must establish the complete absence of any state of facts that would support the need for the enactment." Two ordinances were being challenged: a temporary moratorium on development and a Public Sewer Usage Limitations Ordinance. No ruling was made on the validity of the moratorium. When the moratorium expired the town adopted the sewer ordinance, which limits the number of sewer hookups allowed in any one year on a first-come, first-served basis. The court did rule that the sewer limitation ordinance as conceived was legal. In other words the town could regulate the number of hookups to the sewer district's system, even though the district not the town operated the system. But the Court did not rule whether the need for the ordinance was established.
It is unfortunate that after three court cases so few specific questions have been answered. At least municipalities can rest assured they have the requisite legal authority in Maine to enact growth management ordinances. With this authority municipalities which need growth management tools to give them time to expand their facilities and services, to put in place mechanisms to protect valuable natural resources, and to plan for future growth, should be legally justified in adopting and enforcing equitable and reasonable ordinances.