Posted by: Patty Salkin | March 10, 2008

Maine Supreme Court Finds Public Vote Against Reclassifying Land Is a Legislative Act

Following the enactment of a shoreland area ordinance that created two categories within the shoreland area - 1) limited residential/recreational tracts, on which residential construction is allowed; and 2) strict resource protection tracts, on which residential and most other uses are prohibited - Bog Lake Company who owns land in the strict resource protection area, asked the Town to reclassify its land as limited residential/recreational.  The planning board recommended that the request be denied, but the final decision on a proposed amendment is made by the townspeople at a town meeting.  To override a negative recommendation of the planning board, a two-thirds majority was needed.  The people unanimously rejected the requested reclassification. Bog Lake Company filed a complaint in Superior Court seeking a finding that its land did not meet the criteria for a strict resource protection tract and seeking an order compelling the Town to reclassify the land as limited residential/recreational.  

The Supreme Court first addressed the statute of limitations and held that absent a challenge to the ordinance itself, which Bog Lake Company did not bring, the six year statute of limitations within which a civil action must be commenced in Maine began to run in 1987 when the land was originally designated as a strict resource protection tract.  To hold otherwise, said the Court, would result in” no municipality’s zoning classifications ever being settled, because an owner’s subjective decision at any time to use the land in a different way would simply reset the six-year period of limitation.” Therefore, the Court held that, “absent a challenge to the ordinance itself, Lake Bog Company’s complaint for declaratory judgment, filed eighteen years after the ordinance took effect, is time-barred.”  

Lake Bog Company also alleged that its due process rights were violated since it claimed that its representatives were not allowed to speak at the town meeting before its request for the reclassification was voted down.  The Court said that “When the voters…denied Bog Lake Company’s request to amend the shoreland area ordinance, they did so acting as the legislative body of the Town.” Therefore, the Court concluded that the decision of the townspeople was entitled to legislative deference and the Court is limited to a determination of whether the ordinance itself is constitutional, and whether the ordinance is in general harmony with the Town’s comprehensive plan. Finding that the act was both constitutional and in accordance with the comprehensive plan, the Court upheld the legislative decision of the Townspeople not to reclassify the tract. 

Bog Lake Co. v. Town of Northfield, 2008 WL 518194 (Me. 2/28/2008). 

The opinion can also be accessed at:

http://www.courts.state.me.us/opinions/2008%20documents/08me37bo.pdf

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Responses

At the onset, this case drew my interest because of its positive “power to the people” connotations. From a wholly non-legal standpoint, I appreciated the discretion used by the Maine Supreme Court in limiting its own decision making authority and allowing a popular vote to stand. By clearly stating it could not decide upon the validity of the town’s decision to reject the request to amend the shoreland area ordinance it validated some power back to the residents of the Town of Northfield. The statute of limitations issue (which is a rather important one here) aside, I think this case might stand for the preposition that a popular vote of residents should be afforded significant weight - clearly characterized by the court here as being on of legislative determination.

As a law student and resident of a relatively small but developing residential community, the notion that residents maintain some direct control over land use decisions is appealing on a personal level. Again, this notion is grounded in the Maine Supreme Court’s awarding the public vote the distinction of acting as a legislative determination. However, the refusal to give the Bog Lake Company any real consideration on its Due Process claims for not being able to speak at the town meeting before the residents voted is slightly more troubling.

That said, putting myself in the shoes of a land developer or any citizen wishing to conduct business in the land use arena within a municipality with such procedural provisions, I propose that the decision here could have been better grounded in both fact and law. While the opinion provides little in the way of the specific facts surrounding: 1. the town’s denial to amend the shoreline area in favor of the company and 2. the denial of time for the company to speak before the public referendum, the latter point is clearly more troubling of the two because of the court’s somewhat nonchalant glossing over the company’s right to be heard. I believe that by classifying the public vote as a legislative act, the court has potentially stepped onto a slippery slope of favoring one group over another. Assuming a majority of a certain percentage of the population is required to carry the planning board’s determination, it would have been helpful for the Court here to offer elaboration on the Town’s rules governing its public voting requirements. The decision merely cited to the fact that at the July 2006 town meeting, voters unanimously rejected the proposed amendment. Does this mean that five “voters” showed up at the meeting and all voted opposed?

If the town’s people are to have final say, I believe that in order to better comply with and simply provide procedural due process protection, the Company should have had the right to be heard – so as to specifically address the decision makers. Allowing ample opportunity for parties to be heard helps remove some of the potentially “skewing” subjective taint that often clouds the municipal land use decision making processes. The public hearing aimed at Northfield’s planning board did not, in my view, provide a similar opportunity for the Bog Lake Company to address the voting public.

By: Paul Turaew on March 28, 2008
at 7:48 pm

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