Legislature signs off on referendum limits

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AUGUSTA – A bill that strictly limits the ability of voters to stop development in their communities was approved Monday by the Legislature.

Opponents of the measure pulled out every stop in the House to halt the bill, debating the measure for nearly two hours. A little later in the Senate, it was passed for the final time and sent to the governor with barely a whimper, winning easy passage with no substantive debate.

L.D. 1481, “An Act to Amend the Laws Governing the Enactment Procedures for Ordinances,” gives voters 75 days after a permit is issued to a developer to reconsider the community’s ordinances, and potentially halt construction.

During the sometimes fiery debate over an issue with a boring title, the seeds for a likely legal challenge were laid by the measure’s opponents.

On May 13, the Attorney General’s Office issued an advisory ruling that the law as passed by the Legislature more likely than not represents a mandate on local governments. According to the state’s Constitution, the Legislature has to pay for 90 percent of mandates it passes along to municipalities.

L.D. 1481, as passed, doesn’t include the funding or the language necessary for it to be treated as a mandate.

According to Rep. Herb Adams, D-Portland, one of the leading critics of the bill, the AG’s opinion makes clear that the first time L.D. 1481 is used, it will likely face a legal challenge.

Additionally, Adams said, if the Legislature says that the bill doesn’t create a mandate, which it has, then it cannot compel local officials to schedule a vote within the 75-day window for action, giving them the ability to kill any petition drive meant to undo local ordinances if they want.

Rep. David Trahan, R-Waldoboro, stripped away the legalese.

“I want to point out to you something much more concerning to me than the mandate concerns, something I believe much more sinister,” Trahan said. “Municipalities will not have to hold this special referendum. What this does is it creates the power within the board of selectmen to deny the public the opportunity to petition their government.”

Trahan later called the bill plainly unconstitutional.

Proponents of the bill have remained steady in their support of the bill as attempts have been made to kill it, saying that it’s about making the process fair and balanced for people who are going through the process for a new building project.

The bill “is in the nature of a protection for those people who have expended large sums of money, in some cases, or who are going through the process,” said Rep. Bradley Moulton, R-York, “to provide them with some protection against a retroactive process that, at the moment, appears to be unfettered and without limit.”

“We are attempting to balance interests between those people or organizations going through the process and, in some cases, for municipalities to question that process,” Moulton said.

Rep. Janet Mills, D-Farmington, questioned the legitimacy of passing a bill with serious constitutional questions attached, arguing “if we’re going to enact something, let’s do it right.”

Rep. William Walcott, D-Lewiston, said that the bill amounts to a prohibition on a referendum challenging an ordinance once a permit has been issued. The procedures for any local petition drive and election in the city are too complicated and take too long to be done within 75 days.

“Regardless of what (city councilors) may or may not do, I don’t see this being able to be done,” Walcott said.

The bill now heads to Gov. John Baldacci for consideration.

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