YOUR GOVERNMENT LD 1481: Good compromise or loss of citizen rights? BY SARA DONNELLY

A new bill sponsored by Cumberland County Senator Lynn Bromley which seeks to protect future developers from retroactive citizens’ referenda could achieve what Ed Suslovic’s similar bill failed to do in 2003 — it could pass. Currently the bill, LD 1481, is being reviewed by the Committee on State and Local Government in Augusta. House committee chair Christopher Barstow (D-Gorham) says the committee hopes to endorse the bill at its next meeting on May 4.

But not without some careful tweaking to try to avoid the legal and political pitfalls that gobbled up Suslovic’s LD 389. In a work session on April 27, committee members went to work on the bill, which includes provisions governing the process of citizens’ referenda, a section limiting the time frame in which a people’s veto can be enacted, and a section granting vested rights to projects far earlier in the planning stages than the law currently allows. According to Barstow, the committee will most likely chuck the people’s veto clauses and referenda rules at the next meeting in favor of what many supporters of the bill consider to be its most important element — expanding the definition of vested rights to protect projects with final approval from being nixed by area voters.

Supporters of LD 1481 hope that this bill will strike a palatable compromise between citizens’ and developers’ rights which will garner support from both sides of the aisle in the House and Senate.

Under current law, developments are protected from retroactive referenda only after ground has been broken on the project. Barstow says the committee plans to endorse a version of LD 1481 which would prohibit retroactive referenda on projects which have received final approval from the area planning board, whether or not dirt has actually been tossed around at the site. The bill in its current form gives vested rights to projects for which only a written notice of an intent to file an application has been filed.

Maine’s current law allows more time for retroactive citizens referenda than most states in the country. Supporters of LD 1481, including the Maine Real Estate and Development Association (MEREDA), the state Planning Office, and the Southern Maine Affordable Housing Coalition, say changing the law is crucial to encouraging any type of private or commercial development in the state. But opponents of the bill, including the Maine People’s Alliance and the national nonprofit Institute for Local Self-Reliance, believe grandfathering property earlier in the planning process unfairly binds the hands of citizens seeking to prohibit unwanted development like big box stores.

"While legislators who support this want to talk about how it’s going to help get a lot of affordable housing through, what it’s really going to do is help get a lot of Wal-Mart stores and other big-box retail development around the state by taking away one of the few tools citizens have," says Stacy Mitchell, a senior researcher for the Institute for Local Self-Reliance who submitted testimony opposing LD 1481 at the committee work session on April 27. "I can understand the concern about retroactivity as a basic policy, as being something that people may want to change for obvious reasons, however the state is not offering any other type of tool to citizens groups. It’s just taking one away and enhancing the power of developers."

"I don’t believe [big box development] is a focus of this legislation by any stretch of the imagination," says Virginia Davis, a lawyer at Preti, Flaherty, Beliveau, Pachios & Haley LLP in Portland who represents MEREDA. Davis believes the bill will encourage more citizen action rather than discouraging it, by stressing proactive rather then reactive involvement.

"One of the thrusts of 1481 is to encourage people to be involved throughout the whole process — through the comprehensive plan, though the zoning," she says. "If you are concerned about big box, it seems to me you really have to care what your ordinances and your comprehensive plan says about those very issues. If one of those projects comes along and somehow we didn’t get it right we need to make sure it doesn’t happen again in the future, but I’m not sure that it is totally fair either to [retroactively oppose] somebody who has played by all the rules and has spent a lot of money."

While citizens’ referenda that have retroactively spiked a development are relatively few and far between in Maine, supporters of the bill contend the handful that have been successful have left enough of a scar to chill developers long into the future. A referendum in Portland in the 1980s overturning the Fisherman’s Wharf project set a precedent for retroactive initiatives, a retroactive citizen referendum overturned a mall proposed by Kittery Retail Ventures in 2000, and, most recently, the developers of the Dunstan Crossing "Great American Neighborhood" project in Scarborough were denied in 2003 when a last-minute referendum nixed the project by a four-to-one margin.

Bromley says she sponsored the bill in part because of the political mud that mired, and eventually sank, Dunstan Crossing. After two years of working with the planning board for final approval, Scarborough voters rejected the 150-acre development in a retroactive referendum. The developers of Dunstan Crossing, John and Elliot Chamberlain, filed a lawsuit in 2004 against the town of Scarborough for time and money lost. Bromley believes this type of scenario could deter developers, specifically affordable-housing developers, who traditionally fight an uphill battle convincing communities to welcome their projects in the first place.

"I don’t want to force anything down anyone’s throat," says Bromley of LD 1481. "I just want people to respect the process and respect the rules that they’ve set. If people want to be able to overturn the process [after final approval] then why even have a planning board?"

The State and Local Government Committee will review the bill on May 4 and chair Barstow says plans are to vote in this meeting whether to endorse or oppose it.