CONTINUING STORY LD 1481 may be unconstitutional BY SARA DONNELLY

LD 1481 is not having an easy go of it in Augusta. The bill, "An Act to Amend the Laws Governing the Enactment Procedures for Ordinances" (see "Your Government," May 6 and "No Backsies," May 20), has been tabled in the Senate pending a decision on its constitutionality by Attorney General Steven Rowe. If passed, LD 1481 would protect all developments which have received a final permit from the municipal planning board from retroactive citizens’ referenda like the one used to nix the Dunstan Crossing project in Scarborough in 2003.

Opponents of the bill, like nonprofits the Maine People’s Alliance and the Institute for Self-Reliance, say it violates citizens’ right to petition under the Maine Constitution and could make it tougher for citizens to fight new big box developments. But proponents, including the Maine Real Estate and Development Association and the state Planning Office, say protecting developers who have spent months, and often times plenty of money, going through the lengthy planning board process is necessary to encourage affordable housing developments in Maine.

The AG’s decision is expected sometime this week.

LD 1481’s legal troubles are eerily similar to those bills to which it is commonly compared — 2003’s LD 389, which itself was eerily similar to 2002’s LD 789. Two years ago, Portland Democratic representative Ed Suslovic’s LD 389, "An Act to Amend the Laws Governing Municipal Citizen Initiatives and Referenda," sparked a whole lot of heated debate in the House before it was eventually declared unconstitutional by the AG. Last week, a small group of senators and representatives, including opponents Senator Peggy Rotundo (D-Lewiston) and Representative Herb Adams (D-Portland) submitted LD 1481 to the AG’s office to find out if it, too, violates the state constitution. Both Rotundo and Adams were adamantly opposed to Suslovic’s LD 389.

One lawyer in Portland has already decided LD 1481 is unconstitutional. Peggy McGehee of Perkins, Thompson, Hinckley & Keddy is a lawyer representing citizens’ groups in opposition to big-box development in Maine. She reviewed the bill for the Maine People’s Alliance and found that the Maine Constitution does not allow the Legislature to restrict the subject or scope of citizens’ referenda, only the method in which the referenda are held. So LD 1481, which says referenda can’t oppose a property with a final permit from the planning board, unlawfully restricts the scope of the referendum process. But McGehee makes no attempt to hide that her sympathies lie with the Maine People’s Alliance and others opposed to LD 1481. A similar decision from the AG’s office, however, could render the bill dead on arrival.

The bill’s sponsor, Senator Lynn Bromley (D-Cumberland), is confident that this scenario won’t come to pass. She says her bill is much different from Suslovic’s, and it was written to avoid the unconstitutional elements that killed LD 389.

"We’re awaiting the AG’s opinion and we think it will be favorable to the bill the way it is crafted this time," says Bromley. "The issues of sprawl and affordable housing are at the heart of my concern about this. The banks are certainly not interested in financing these [affordable housing] deals with the chance that they could go belly up at the last minute."

If the AG’s office for some reason does not get to the bill (this is unlikely) and does not release an opinion by the Legislature’s adjournment on June 15, Bromley says the Senate will vote on LD 1481 anyway.