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BULLPEN: Hurt by LURC

Maine Ahead - Orlando Delogu

Date:

October 26th, 2010

Getting projects through LURC can take an eternity, cost a fortune, and is still often impossible. It’s damaging Maine’s economy.

Making Maine Work, a recent report by the Maine State Chamber and the Maine Development Foundation (MDF), sited “government regulatory practices that unnecessarily raise the cost of doing business” as a major factor effecting Maine’s economic future.  The report did not call for sweeping deregulation; it implicitly recognized that in a complex society regulations are necessary. But it called upon the next governor and legislature to: “First  change the bureaucratic culture in Augusta, so that regulators see their jobs as helping Maine people and Maine businesses succeed. Secondly  empower the Regulatory Fairness Board to collect information on state regulatory review times and costs [and] to set benchmarks for regulatory performance.”

These are sensible recommendations. If applied to the Land Use Regulation Commission (LURC), a large number of agency rules, actual decisions,  the whole pace of LURC action would be dramatically shifted in ways that would benefit the economy of the entire state. This sweeping impact arises from the simple fact that this unelected, part-time, seven-member commission controls all major development in one-half of the entire state.

They do so with little attention to marketplace time frames. Recent revisions to LURC’s comprehensive plan, for example, were on the table for years. Major development proposals often take a year or more to decide. More critical, however, is LURC’s narrow view of who or what it is charged to protect. Though provisions of the LURC statute require the designation of development districts, and speak to the need for multiple use of land and resources, LURC has never taken a balanced approach to development interests vis-à-vis woods-related, pristine lake, or remote wilderness interests.

Indeed, LURC’s agenda for 40 years has been to protect and preserve to the fullest extent possible the historic status quo. This includes 10.4 million acres of open space, a traditional (but narrowing) forest products industry, view corridors, vernal pools, and indigenous populations of plants and animals—as if these were the only interests of importance to Maine’s people and today’s economy.

LURC pursues this agenda by elaborate rule making that makes compliance with development regulations almost impossible. And it relies on several realities to continue its unbalanced approach to regulation: The legislature is too busy to provide proper oversight; developers need the permits that LURC alone can give; litigation is costly; and win or lose, area landowner/developers must face LURC again and again.

The clearest evidence of LURC’s skewed approach to its responsibilities is the fact that less than 1% of the total land area subject to its jurisdiction is zoned for non-forest-related development.  A rezoning process that would allow an expanded array of developments in a widened range of areas is constrained by a Byzantine mix of statutory and regulatory burdens.

For example, the “adjacency rule” prohibits rezoning land that is not within one mile of an existing compatibly-developed area. This rule effectively bars any significant increase in land zoned for development. Other rules sharply constrain development along ridge lines and most lake and river shorelines. Development back from the shoreline of pristine or remote lakes is all but barred, as are development activities above the 2,700-foot elevation line.

These are only examples. The magnitude and complexity of LURC’s rules and regulations cannot be conveyed here. Chapter 10 alone, dealing with districts and standards, is over 300 pages long.

That said, beyond the Chamber/MDF’s call for changes in state regulation, changes in the unorganized territory are putting pressure on LURC to change. A more fragmented pattern of land ownership has brought more people and diverse interests to the region. An expanded road network makes even remote areas accessible, and the range of development opportunities in the region is rapidly expanding. These trends will not end.

And LURC itself (unwittingly) has contributed to the call for regulatory change: Its failure to do its work in a fair and balanced manner, and to remember that much of the land it regulates is privately owned, has awakened an interest among area landowners to protect their constitutional private property rights. LURC would do well to recall that almost 100 years ago the U.S. Supreme Court bluntly stated: “The general rule  is that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.”

In sum, for the sake of Maine’s economy, the new governor and the legislature must insist that LURC fashion a more effective and balanced approach to its regulatory responsibilities.  These changes are needed now.

Orlando Delogu is an emeritus professor of law at the University of Maine School of Law.

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