TOWN OF EDGECOMB MINUTES OF THE SELECTMEN'S MEETING
May 12, 2008; 6:00 P.M.

Attended: Jo Cameron, Stuart Smith, John Johnson; Jack Sarmanian, Larry Omland; Kate Kastelein, press

MINUTES of May 5 were approved as read; Minutes of May 6-7 were tabled.

  1. PUBLIC COMMENT: None.
  1. OLD BUSINESS:
    1. Town Report and Warrant status:
      1. Concerning the mailing of the Town Report: The Post Office requires that a check accompany the mailing.
      2. Concerning the moratorium: Stuart has sent a copy of the warrant to Kristin Collins of MMA Legal Services for review. She has said that the several charitable organizations' requests, since they come by individual petition, must be each a separate warrant item. It was agreed to leave the single warrant item as is for this year, but to comply in future.

Concerning the moratorium, Stuart will read a letter from Kristin into the record at Town Meeting, and post a copy on the website. A copy will be attached to these minutes as an appendix. Kristin feels the petition is frivolous; its warrant articles are too vague, broad in scope and duration; further, they have no teeth, no way to enforce compliance. The Planning Board might review it, find the Land Use Ordinances in compliance with the existing Comprehensive Plan, enact it for one week, and the moratorium would be ended.

John said he thought this Town has enough people concerned about this issue, that the Town Ordinances are giving the Town away, that we need an opportunity for public discussion. He urged that in future the Planning Board be more open for public commentary at its meetings.

Stuart suggested that the TIF District be modified to run public water service along Fort Road. The Wiscasset Water District has the water rights to the whole of Davis Island.

    1. Assisted Living Complex et al.: tabled
    2. Water and Sewer: tabled
    3. Broadband Committee: tabled
    4. Fire Station: tabled
    5. Lallis: tabled
    6. Bintliff Liquor License, Public Hearing: Hearing no objection, the Selectmen voted unanimously to approve the application.
  1. NEW BUSINESS:
    1. Scripting the Warrant: Each Selectman chose articles to defend, if necessary, in Town Meeting.
    2. Fixing the Flag: John reported that the bill for the Memorial Day flags was far larger than that agreed upon by Jo and Tri-State Flags. Jo will look into this.
    3. Boiler Certificate: John called the Boiler/Pressure agency, who agreed, the expiration notice date of May 30, 2008 is most likely a typo, for 2009. But the agency will look into this farther.
    4. MMA Risk/Casualty Policy: John talked to the MMA insurance representative, who pointed out certain long-standing items did not need coverage, so that our coming policy rate should be much lower.
  1. OTHER BUSINESS:
    1. Bypass meeting Thursday, May 15, 6:30 pm, 911 Communications Center, Wiscasset
    2. Cable Consortium: Jo will contact the negotiation task force to invite them to a Selectmen's meeting for a status report.
  1. CORRESPONDENCE:
    1. Maine State Police, concealed weapon permit: As nothing is known against the applicant, the application was signed and returned.
    2. MMA, Elected Officials Workshop: referred to Jack Sarmanian
    3. MMA, Nominations to Legislative Policy Committee: referred to new Selectboard
    4. Mid-Coast Municipal Association, invitation to meeting: referred to new Selectboard
    5. William H. Brewer, 2008-2009 contract: As the contract forms contained no dollar figures, the Selectmen agreed to delay accepting the contract until Stuart has communicated with Brewer about this lack.
    6. MDOT, speed activated dynamic signs: MDOT asks the Town to post the plans where the public can study them. Jo asked permission to borrow for discussing with the Bypass meeting on Thursday, and will then post them.
  1. WARRANT:

#24 in the amount $157,524.65 was voted unanimously to be accepted for payment.

#101 (TIF Account) in the amount $1,145.00 for payment to the Wiscasset Water District was voted unanimously to be accepted for payment.

#201 in the amount $1,365.76 for payment to Woodard and Curran for consulting was voted unanimously to be accepted for payment.

  1. EXECUTIVE SESSION: None.
  2. ADJOURNMENT: Adjourned at 7:20 p.m .

 

Letter to Select Board from Maine Municipal Association re moratorium

Dear Stuart,

I have reviewed Articles 34-36. Although it is too late to remove any of these articles from the warrant due to illegality, it is important to understand their effect if enacted so that the voters can be made aware of the several reasons why enactment of these articles is unwise.

Article 34 calls for a moratorium on the construction of "commercial use" buildings, to last "until the town’s Land Use Ordinances are written or rewritten to comply with and reflect the intent of the Comprehensive Plan." There is no authority for an open-ended moratorium such as this. 30-A M.R.S.A. Sec. 4356 limits the duration of a moratorium to a definite term of no more than 180 days. This moratorium, if enacted, would expire six months after the petition was submitted, regardless of whether the Land Use Ordinances had been rewritten at that time. Any construction of "commercial use" buildings could proceed at that time. The only way to extend the moratorium would be for the Selectmen to vote to do so before the first 180-day period has expired.

Article 35 sets the effective date of the moratorium as the date the petition was submitted. I understand that the intent in doing so was to prevent the construction of a particular facility for which a permit has already been granted. My opinion is that the moratorium could not prevent the construction of that already approved project. Retroactivity provisions are reviewed rather strictly by the courts. Review begins from the standpoint of 1 M.R.S.A. Sec. 302 (a statute governing the interpretation of laws), which provides that the enactment of an ordinance does not effect any action or proceeding pending at the time of the enactment. An ordinance can only avoid this general rule of interpretation by specifically providing that its intent is to affect proceedings pending at the time of the enactment. Kittery Retail Ventures v. Town of Kittery, 2004 Me. 65. Article 35 contains no such language. It provides only that the moratorium is to be "effective" beginning on the date the petition was submitted, but without more, that effective date would only apply to applications for which substantive review did not begin until after the submission of the petition. It certainly would not affect any project for which a permit was approved prior to the petition's submission.

Furthermore, if any construction has begun in reliance on the permit issued, then the owner of this project may have developed a vested right to complete the project. A moratorium cannot affect a person's vested rights if it was enacted in bad faith. A court will look at whether there really was a need to cease development so as to implement more effective standards. See Waste Disposal Inc. v. Town of Porter, 563 A.2d 779 (Me. 1989). It seems clear that this moratorium was proposed to affect this one project. If a court found that there really were no significant discrepancies between the Comprehensive Plan and the Land Use Ordinance so as to justify the moratorium, it would find the moratorium to be invalid at least as applied to this project. Given the problems outlined here and in the prior paragraph, I would expect the affected landowners to bring a lawsuit to enjoin the enforcement of the moratorium.

Article 36 directs the Planning Board to review the Land Use Ordinance for compliance with the Comprehensive Plan and to present to the 2009 town meeting any amendments necessary to make the two agree. If approved, this would actually require the Planning Board to undertake such a review. In the event Article 36 is approved, I would recommend that the Planning Board hold at least one hearing to review the Ordinance and the Comp Plan for conformance and make a record of its findings. If the Board finds that the two are actually in agreement and there is no need for any amendments, then it would not be obligated to put any amendments forward for town meeting vote. If it does find some discrepancies, then it would have to present the necessary amendments for the Selectmen to be included on the 2009 town meeting warrant.

I hope this is of help to you in explaining these issues to the voters. Please contact me if you have any further questions.

Best regards,

Kristin M. Collins
Staff Attorney

Maine Municipal Association
60 Community Drive, Augusta, ME 04330
(207) 623-8428
(207) 623-1287 (fax)