Attorney outlines Planning Board role and explains they must apply Land Use Ordinances as written.
The November Planning Board Workshop focused on Board authority and role in enforcing current Land Use Ordinances (LUO). Phil Saucier of Bernstein Shur led a training regarding the Planning Board’s responsibility to apply the Land Use Ordinance and support the goals of the Comprehensive Plan.
Former Planning Board member Gary Bahlkow previously asked about Planning Board ability to interpret LUO in unique situations that were not discretely addressed by ordinances. Audrey Lones (Chair) has discussed with members whether the Board could counter these developer “loopholes” and apply LUO based on the Board’s understanding of intent of the Comprehensive Plan.
The Planning Board is a “quasi-judicial” review body, said Saucier, not an enforcement authority. The term Planning Board is a “creature of local law” not specifically covered by state statutes and is considered an antiquated title. Zoning Boards are required by the state and, along with Municipal Review Authority, are addressed in Maine law. These Municipal Review Authorities (MRA) operate in a role residents would consider a Planning Board. The state regulates only 2 functions of the MRA, subdivision review and conducting public hearings related to LUO.
The Board’s authority is limited to approval of development applications based on current LUO. Enforcement rests with Code Enforcement. The Board does have limited discretion to interpret current LUO, but this must be supported by finding of fact statements. The interpretation standard is 2-tiered, either based on plain meaning or context of the entire ordinance. Approval decisions should “be in harmony with” the document as a whole, stated Saucier.
Ultimately, LUO must be applied as written. According to Saucier, it is not the Board’s job to determine if LUO are consistent. The Board can recommend and draft amendments to LUO if they discover errors, discrepancies or unintended impacts. However, any changes must go before residents for approval at Town Meeting.
North Yarmouth Planning Board drafts the majority of amendments to LUO. However, all changes whether clerical or substantive must be approved at Town Meeting. LUO changes can also be initiated by the Select Board or directly from residents.
The guiding document for LUO development is the Comprehensive Plan. Towns must have a Comprehensive Plan to have LUO, according to Saucier, but this document does not have “teeth” as it is not an ordinance. Boards develop ordinances to implement the goals of a town’s Comprehensive Plan. The Board can submit warrants to bring LUO in alignment with the Comprehensive Plan. The language must be “specific, cognizable and quantifiable” to prevent granting unlimited discretion. Courts have ruled subjective or sufficiently vague LUO are unconstitutional and could lead to discrimination, favoritism, or abuse. If interpretation is left to whims of committee members, it becomes improper delegation of authority, violating due process, said Saucier. “Whether you like them or not, you must apply as written.”
A future workshop will cover FOAA training for Planning Board members. Changes to Maines FOAA went into effect on October 18 to expand the list of municipal employees and officials required to attend formal FOAA training. Saucier alerted the Board that they are now subject to the provision.
According to a summary of the amendment by Northern New England Municipal Law Blog, Planning Board members must complete the training within 120 of assuming their duties. It is unclear how the new regulation will be applied to sitting members, but it is recommended the training be completed within 120 days of the effective date.
Other changes included new limits to fees towns can charge for FOAA requests. Town manuals and policies will need to be reviewed to ensure they align with the new standards.