Legislature Considers Limiting Municipality Authority

In 1988, the Maine Law Court held that a municipal ordinance may contain a legally binding provision making the ordinance retroactive; i.e., effective on the date that it is proposed rather than on the date that it is enacted, overriding the statutory rule of prospective application of ordinances and statutes found in 1 MRS å¤302. City of Portland et al v. Fishermen’s Wharf Associates II, 541 A.2d 160 (Me. 1988). For more than fifteen years, most land use lawyers believed that the retroactivity rule could not be used to force the denial of a land use application that had undergone substantial review before an adverse ordinance change was enacted.åÊ In 2004, the Law Court spoke again on the subject, this time making it clear that the land use lawyers had it wrong:åÊ a municipality could defeat a land use application by enacting a retroactive ordinance after the application had been under review by the appropriate municipal authorities (in this case, the planning board) for several months. Kittery Retail Ventures, LLC v. Town of Kittery, 2004 ME 65, 856 A.2d 1183 (cert. den. 544 U.S. 906). In fact, a municipal land use ordinance amendment could be made effective on a date even earlier than the date on which the amendment was originally proposed, even if it required the denial of an application whose review was well under way before the change was proposed. Id. Now the Maine Legislature is considering a statutory amendment that would limit the authority of municipalities to amend land use ordinances retroactively. LD 86, An Act to Provide Certainty to Businesses and Development, was the subject of a public hearing before the Joint Standing Committee on State and Local Government on Monday, February 7, 2011. According to the official summary of the bill, which is sponsored by Sen. Schneider (D- Penobscot), it provides that a municipality may not nullify or amend a municipal land use permit by a subsequent enactment, amendment or repeal of a local ordinance after a period of 75 days has passed after the permit has received its lawful final approval and, if required, a public hearing was held on the permit. It also specifies that this provision does not affect any municipal ordinance that provides for a lapse of the permit or authority granted pursuant to the permit after a certain period of time.The language in LD 86 is the same as amended legislation on retroactivity that passed both houses of the Legislature several years ago, but was not signed into law. Philip Congdon, the Commissioner of the Department of Community and Economic Development, and several development-oriented organizations testified in support of this legislation. There was no testimony in opposition to the bill. Most of the discussion among Committee members focused on shortening the time period for retroactivity to less than 75 days. The Committee’s work session on LD 86 is scheduled for Wednesday, February 16, 2011 at 10:00 a.m.If LD 86 becomes law, it is not clear what effect, if any, it will have on the Law Court’s holding in Kittery Retail Ventures, since the developer in that case had not yet secured final approval of its application when the ordinance provision that resulted in denial of the application was enacted. Still, land use and municipal lawyers, as well as anyone with an interest in real estate development, would be well advised to watch the progress of this bill and any possible amendments as it wends its way through the legislative pin-ball machine.