Have You Reviewed Your Subdivision Ordinance Lately?

Date Posted: Friday, November 1, 2024
Posted In: Legal Notes, Legal Notes - Featured

Here’s a reminder to municipal officials to periodically review and update local subdivision ordinances and regulations. It is important for these documents to be consistent with the state’s Municipal Subdivision Law (30-A M.R.S. §§ 4401 – 4408), because the law overrides local enactments in several areas.

For example, the state Legislature occasionally amends the statutory definition of “subdivision” and related exemptions. One notable change was the 2018 repeal of the longstanding “leased dwelling unit” exemption and its replacement with a similar but different exemption that applies to divisions of existing structures (30-A M.R.S. § 4402(6)).

It is important to review local ordinances whenever changes to the statutory definition of “subdivision” occur because municipalities have no home rule authority to use a different local definition or to maintain local subdivision exemptions that deviate from the statute. See 30-A M.R.S. § 4401(4)(H-2) prohibiting local ordinances that expand or conflict with the definition of subdivision. Moreover, any local ordinance or regulation that would narrow the reach of the subdivision law or allow purely local exemptions would be entirely ineffective because the subdivision law expressly requires subdivision review of any activity that is not exempt under the statute’s definitions, and this directive applies regardless of any municipal ordinance or regulation to the contrary. In practice, the state law trumps any inconsistent local definition or local exemption.

Similarly, the subdivision law sets out a minimum set of review criteria that planning boards must consider before they may approve a subdivision application; these are also periodically revised by the Legislature. See 30-A M.R.S. § 4404. Although municipal ordinances may impose additional review standards (e.g., road standards), planning boards may not exclude or overlook any of the criteria set out in § 4404 during their review process. The current statute should always be consulted when a subdivision application is under review, and all statutory criteria should be addressed even if not included in a local ordinance.

Inconsistent local ordinances create confusion and legal uncertainty for applicants and planning boards. For that reason, we strongly recommend that local officials keep track of statutory changes and update local ordinances accordingly. (Careful ordinance drafting may minimize the need for updates — for example, it is not necessary to restate statutory definitions in their entirety in a local subdivision ordinance.)

One final note, the Municipal Subdivision Law should not be confused with the state’s Site Location of Development Law (38 M.R.S. §§ 481 – 489-E), administered by the Department of Environmental Protection, which also uses the term “subdivision” although with much different meaning. (By S.F.P.)