Maine Attorney General Steven Rowe has declared unconstitutional a bill sponsored by a Democratic senator from South Portland, which would have prevented residents from initiating referendum votes on town-approved building projects.
The bill’s sponsor, Sen. Lynn Bromley, said she will revise the bill and continue to push it, to help create affordable housing and economic development. The bill as proposed would have barred the 2003 resident-initiated referendum in Scarborough that resulted in the overturning of approval for the Great American Neighborhood.
The bill, known as LD 1481, would have prohibited resident-initiated referendum votes on projects that had received any type of land use approval from a municipality. Currently, residents can initiate referendum votes to stop the project up until workers break ground.
Rowe’s statement indicated that while the state may provide a “uniform method” for the referendum process, it is up to municipalities to determine whether or not they want a referendum process and define the matters to which a referendum can apply.
Specifically Rowe cited a section of the bill that states referendums can not be brought against “all structures and uses of structures in construction or proposed for which building permits, zoning permits. Subdivision approval, site plan approval or any other land use approval has been granted.” Rowe said that section “exceeds the scope of the Legislature’s authority.”
Bromley, the bill’s sponsor, said the bill remains in committee and during the upcoming session she will work on fixing the issues cited by Rowe in order for it to follow the Constitution.
“It think it’s just wording stuff,” she said.
The fate of Bromley’s bill is similar to that of LD 389 in 2003 and LD 789 in 2002, which were not sponsored by her but had similar wording and were also declared unconstitutional. Bromley hoped that LD 1481 addressed concerns that were raised with LD 389.
Opponents of the bill contend it will allow developers to sneak projects through the planning process leaving residents unable to stop unwanted construction in their community.
Bromley said the law could be amended to include provisions designed to increase public awareness about projects and the planning process, such as having signs on the development land notifying people about upcoming meetings.
“Wal-Mart is not going to get very far if we don’t want it to,” she said. “If a community didn’t want a Wal-Mart it would be impossible for a Wal-Mart to be there.”
Instead, Bromley said the purpose of the bill is to encourage the development of affordable housing, something that many communities have rejected for fear of it becoming another “Kennedy Park,” referring to a Portland public-housing project.
“The biggest barriers to affordable housing are us,” Bromley said. “We want to make sure people who work in your community can afford to live there.”
It is not fair to developers who may spend hundred of thousands of dollars in order to get land use approval to have their project overturned later in the process, she said.
“If all of your contribution is showing up at the end and saying no then shame on you,” she said.
She said communities could enact high design standards and requirements that will force developers to build attractive buildings, but the construction of affordable housing should not be derailed.
“I think a community ought to sit around and talk about what a neighborhood looks like,” she said.
Bromley said the referendum vote overturning the contract zone allowing the construction of the Great American Neighborhood in Scarborough was based on a Town Council-approved contract zone and is a different issue.
The Great American Neighborhood referendum did reject the contract zone, but the project had previously received site plan approval from the Planning Board, a status which would have been protected by Bromley’s bill.
But rather than seeing the project overturned she would have liked to have the community sit down and discuss the plan with the developers, brothers John and Elliott Chamberlain.
Bromley said she supports smart growth planning and said, ‘it is so ironic the things that hurts us is easy to do and the things that help us is hard to do.”
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