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GROWTH MANAGEMENT OVERVIEW What Is Growth Management 4 fb88’s Comprehensive Planning And Land Use Regulation Act 4 BEFORE YOU BEGIN What Does The Comprehensive Plan Say? 8 What About Existing Ordinances? 9 Who Is Going To Do The Work? 9 Where Do We Begin? 10 Building Public Support 10 WHAT IS A LAND USE ORDINANCE? Overview 12 Types Of Ordinances 13 Form Of The Ordinance 13 Map Of Districts 15 LEGAL CONSIDERATIONS Constitutional Issues 16 Standards/Delegation Of Legislative Authority 16 Reasonableness 16 State Laws 17 Home Rule 17 Home Rule Limitations 17 Zoning Ordinances 18 Zoning Adjustment 20 Impact Fees 21 Application Fees 22 Moratoria 22 Community Living Arrangements 23 Regulation Of Manufactured Housing 23 Source Water Protection Area 23 State Policy Relating To Commercial Landfill Facilities Moratoria 24 Rate Of Growth Ordinances 24 Shoreland Zoning Act 24 Site Plan Review 25 Subdivision Law 25 Minimum Lot Size Law 26 Other 26 ORDINANCE PREPARATION STEPS Overview 28 Recommended Steps For Preparing A Land Use Ordinance 28 1. Review The Comprehensive Plan 28 2. Prepare An Outline 28 3. Choose Districts 29 4. Determine Land Uses For Each District 29 5. Determine Dimensional Requirements 30 6. Choose Growth Management Provisions 31 7. Develop Performance Standards 34 8. Develop Administrative Provisions 35 9. Add Site Plan Review Procedures and Standards 36 10. Add Definitions 36 11. Map districts 36 ORDINANCE ENACTMENT PROCEDURES Overview 37 Public Input 37 Statutory Enactment Procedures 38 Availability 39 Revision Of Ordinances 39 TECHNIQUES, TRENDS AND INNOVATIONS Overview 40 Access Management 41 Affordable Housing – Regulatory Incentives 42 Airport Approach Zone 43 Aquifer Protection Zone 44 Cluster Development 46 Conditional Or Contract Zoning 47 Density Bonus 49 Density Transfer Charge 50 Form Based Zoning 51 Good Neighbor Policies 53 Harbor Ordinance 55 Home Occupation Standards 56 Impact Fees 57 Large Scale Development Standards 59 Minimum Lot Size Ordinance 61 Mixed Use Development 62 Moratorium 63 Open Space Subdivision Requirements 64 Rural Growth Cap 66 Stormwater Management 67 Transfer Of Development Rights 69 Wireless Telecommunication Facilities 71 APPENDIX A. SUGGESTED LAND USE ORDINANCE FORMAT Article 1 General 72 Article 2 Land Use District Requirements 75 Article 3 Administration, Enforcement And Penalties 75 Article 4 Site Plan Review 79 Article 5 Performance Standards 80 Article 6 Shoreland Zoning 83 Article 7 Subdivision Review 83 Article 8 Flood Plain Management 83 Article 9 Non-Conformance 83 Article 10 Appeals 88 Article 11 Definitions 91 APPENDIX B. LAND USE DISTRICTS – SUGGESTED FORMAT 1. Establishment Of Districts 92 2. Rules Governing District Boundaries 92 3. Land Use Requirements 93 4. District Purposes 93 5. District Requirements 93 Land Use Matrix, Table B-1 94 6. Dimensional Requirements, Table B-2 98 APPENDIX C. ENCOURAGING GROWTH IN GROWTH AREAS Overview 101 Example 1: Zero Lot Line Development 102 Example 2: Accessory Apartments 103 Example 3: Density Bonus For Developments On Central Water Or Sewer 104 Example 4: Density Bonus For Affordable Housing 104 Example 5: Large Scale Development Standards 106 APPENDIX D. KEEPING RURAL AREAS RURAL Overview 119 Example 1: Rural Area Growth Cap 120 Example 2: Residential Growth Management 125 Example 3: Maximum Lot Size And Frontage Requirements 128 Example 4: Requirements For Open Space Subdivisions 129 Example 5: Rural District, Large Lot Size, Restricted Uses 142 APPENDIX E. DEFINITIONS 1. Construction Of Language 146 2. Definitions 146 INTRODUCTION  Purpose of this Manual This manual is for local officials, planning committees and others in small to mid-size communities who are interested in preparing a local ordinance to implement their comprehensive plans. It contains the basic information needed to draft a land use ordinance, which legally regulates how people can use their land. How much regulation to put in place, and what to regulate, are individual decisions that have to be made in each municipality. This manual hopes to inform those decisions. This manual also contains practical suggestions for encouraging future growth in growth areas, and discouraging incompatible development in rural areas. fb88’s Growth Management Act, Title 30-A M.R.S.A. Sections 4312 to 4350, requires that if a comprehensive plan is prepared, it must contain provisions for growth and rural areas (see Section 4326, subsection 3-A for exceptions). This manual assumes that a comprehensive plan has already been developed. See the Comprehensive Planning Manual prepared by the State Planning Office (SPO) for a discussion on the designation of growth areas and rural areas and for a general discussion on growth management techniques. This manual does not contain any State mandates or minimum standards that must be included in the local ordinance. It does, however, contain options that should be considered in developing a land use ordinance. Specific numerical standards appearing in the appendices have been included for purposes of illustration. They are not State minimums. This manual does not contain a single model ordinance because no single model, or set of models, could address the diverse needs and conditions of communities throughout fb88. Rather, it contains some suggested ordinance language and offers you a number of options and possibilities from which to choose, in order to help you prepare a land use ordinance that is consistent with your community’s comprehensive plan. How This Manual is Organized This manual contains seven chapters and a series of appendices. The chapters provide the background information you need to structure a good land use ordinance. The appendices allow you to select language appropriate to your needs to incorporate into your community’s land use ordinance. Chapter 1, Growth Management Overview, contains a brief description of fb88’s Growth Management Act, Title 30-A M.R.S.A. Sections 4312 to 4350. It includes a summary of requirements for local land use ordinances. Chapter 2, Before You Begin, includes discussion of a number of issues related to ordinance preparation such as building public support and relying on models and ordinances from other communities. Chapter 3, What is a Land Use Ordinance?, describes the most common types of land use ordinances in fb88 and the laws that govern them. Chapter 4, Legal Considerations, includes a discussion of basic constitutional principles and legal requirements that need to be considered when drafting an ordinance. Chapter 5, Ordinance Preparation Steps, includes an explanation of the steps you need to take to prepare an ordinance. Chapter 6, Ordinance Enactment Procedures, describes the basic legal requirements for enacting an ordinance. Chapter 7, Techniques, Trends and Innovations, includes a description of growth management techniques used in fb88 and elsewhere. Some examples are included in the appendices. In other cases, the reader is referred to other sources for more information. Appendices. The appendices contain a number of options to consider for inclusion in your ordinance. Appendix A – Suggested Ordinance Format is a guide that can be used as a basic framework for drafting your land use ordinance. Much of the administrative language you will need for your ordinance (such as purpose, administrative procedures, non-conforming uses, and appeals) can be found in Appendix A. Appendix B – Land Use Districts – Suggested Format, contains a suggested format that you can consider in drafting basic requirements for land use districts. Appendix C – Encouraging Growth in Growth Areas, contains examples of specific ordinance provisions that can be considered to encourage and manage growth in growth areas, including provisions to encourage affordable housing and manage large scale developments. Appendix D – Keeping Rural Areas Rural, contains examples of specific ordinance provisions that can be considered to limit incompatible growth in rural areas, including rural area growth caps and provisions for requiring open space subdivisions. Appendix E – Definitions, contains suggested definitions for inclusion in a local land use ordinance. How to Use This Manual This manual is organized so you can find the information you need easily. Each chapter stands alone and can be read separately. If you are preparing a new ordinance, follow these basic steps: STEP 1: Read Chapters 1 through 5 to review some of the issues and opportunities that should be considered in drafting your ordinance. STEP 2: Study, in Chapter 5, the steps for developing a complete ordinance. You will have defined your “growth” and “rural” areas in your comprehensive plan, but Chapter 6 provides you with a checklist of other items, such as what land uses, dimensional requirements and growth control provisions, to incorporate into your ordinance. The decisions you make regarding the content of the ordinance and the techniques you choose for managing growth are extremely important. All of the major issues raised in Chapters 1 through 5 should be discussed at length by your planning committee. In addition, public work sessions, or other means of soliciting public input, will be necessary to ensure that decisions reflect community consensus. STEP 3: Use Chapter 7 and the appendices to learn about some of the choices available to you in drafting your ordinance. The examples in the appendices are designed to work in different circumstances. Study the options, consider options not described here, and then work to reach consensus on what’s best for your community. STEP 4: Begin to structure your ordinance based on the format described in Appendix A. Appendix A guides you through the actual drafting process so you end up with a complete ordinance. Ordinances are complex, legal documents that must be carefully crafted and properly adopted to withstand challenge (see Chapter 6 for a summary of statutory adoption requirements). Your municipal planner, regional planning council or planning consultant can be of great assistance in drafting a land use ordinance. The fb88 Municipal Association may also be able to provide advice and direction as needed. At a minimum, you should review your draft ordinance to ensure that it: Complies with relevant State laws and rules; Does not conflict with other local ordinances; and Does not contain internal conflicts. If you have questions about this manual, or how the information can be used, please contact the fb88 State Planning Office, Land Use Program, at 624-6220. 1. GROWTH MANAGEMENT OVERVIEW  What is Growth Management? Growth management is a series of local actions aimed at affecting the type, amount, location, quality and/or rate of future development. Collectively, these actions are sometimes referred to as a growth management program. A growth management program includes the goals, policies and strategies adopted by the community, as articulated in an up-to-date comprehensive plan, as well as one or more land use ordinances prepared pursuant to and consistent with the comprehensive plan. A local growth management program can encourage or discourage growth and economic development. It can, for example, promote a “no growth” policy in some areas of the community, and encourage growth in other areas. Uncontrolled development is often the most expensive form of development in terms of public costs, natural resources consumption, and personal costs. Uncontrolled development can destroy the very character that makes communities attractive places in which to live. The municipality’s growth management program is a tool that can be used to manage future growth, minimize the negative impacts that are associated with unplanned growth and development, and conserve areas that are valued for their natural resources. This manual focuses on how to prepare a complete land use ordinance. It should be noted that a successful growth management program often involves more than the preparation of land use ordinances. Successful growth management may depend on non-regulatory growth management techniques such as, but not limited to, a capital investment plan, land acquisition, the purchase of development rights, and the use of voluntary programs such as fb88’s tree growth tax law. A municipality’s land use ordinances, combined with non-regulatory techniques such as a capital investment plan, must form a coherent and coordinated strategy for managing growth. fb88’s Growth Management Act fb88’s Growth Management Act (Title 30-A MRSA Sections 4312 through 4350) was first enacted in 1988. There have been many changes over the years, but the basic provisions have remained the same, as summarized in the paragraphs below. Comprehensive planning is voluntary. The preparation of a comprehensive plan is optional. However, if a community decides to prepare a comprehensive plan, it should follow the statutory requirements for preparing a plan found in Title 30-A MRSA Sections 4321 through 4326. If a municipality chooses to prepare a comprehensive plan, and if it receives a planning grant from the State Planning Office (SPO) for preparation of the plan, the municipality must submit the plan to SPO for review. Based on its review, SPO prepares written findings as to whether or not it finds that the plan is consistent with the Act. If a municipality prepares a plan without financial support from SPO, it may submit the plan to SPO for review. Based on its review, SPO prepares written findings as to whether or not it finds that the plan is consistent with the Act. Certification by SPO that the plan is consistent with the law is valid for a period of 12 years. Preparation of a town-wide land use ordinance is voluntary. Each municipality is required to adopt a shoreland zoning ordinance, and adoption of a flood hazard ordinance is a prerequisite for participation in the national flood insurance program. Municipalities are not required to adopt a town-wide land use ordinance. However, if a municipality chooses to enact a town-wide land use ordinance that contains different standards for different parts of town, the ordinance must be pursuant to and consistent with a comprehensive plan adopted by the municipal legislative body (Title 30-A MRSA Section 4352, subsection 2). Portions of pre-existing, inconsistent ordinances become invalid. According to the requirements of Title 30-A MRSA Section 4314, after January 1, 2003, any portion of a municipal rate of growth, zoning or impact fee ordinance that is not consistent with a comprehensive plan adopted under the provisions of the law is no longer in effect 24 months after adoption of the plan. If a land use ordinance acts like a zoning ordinance by requiring different development standards in different parts of town, then the land use ordinance is also subject to these provisions. Section 4314 contains a number of exceptions to this requirement, including a grace period of up to four years if the municipality is under contract to SPO to prepare a comprehensive plan. Required elements of a land use ordinance. If a municipality chooses to prepare a land use ordinance, Title 30-A MRSA Section 4326, subsection 3-A is specific about the types of provisions that must be included in the comprehensive plan and the land use ordinance. Each municipality is required to: Growth and rural areas - identify growth and rural areas as defined in the law. [For the exception to this requirement, see the specific wording of the statute.] Within growth areas, each municipality is required to: Establish development standards; Establish timely permitting standards; Ensure that needed public services are available; Prevent inappropriate development in natural hazard areas, including flood plains and areas of high erosion; and Direct a minimum of 75% of its dollars for municipal growth-related capital investments made during the planning period. Within rural areas, each municipality is required to adopt land use policies and ordinances to discourage incompatible development. The statute explains that “These policies and ordinances may include, without limitation, density limits, cluster or special zoning, acquisition of land or development rights, transfer of development rights pursuant to Section 4328 and performance standards.” The law also states that the municipality…”should also identify which rural areas qualify as critical rural areas as defined in this chapter. Critical rural areas must receive priority consideration for proactive strategies designed to enhance rural industries, manage wildlife and fisheries habitat and preserve sensitive natural areas.” Capital investment plan - prepare a capital investment plan. This requirement is not directly related to the preparation of a land use ordinance. Water quality - protect, maintain and, when warranted, improve the water quality of each water body and ensure that the water body will be protected from long-term increases in phosphorus from development in great pond watersheds. Protection of critical resources - ensure that municipal land use policies and ordinances are consistent with applicable State law regarding critical resources. The local ordinance may be more stringent than applicable State law. Access to coastal waters - ensure the preservation of access to coastal waters necessary for commercial fishing, commercial mooring, docking and related parking facilities. Municipalities may identify and designate one or more critical waterfront areas and implement policies to ensure protection of those areas or otherwise discourage new development that is incompatible with uses related to the marine resources industry. Agricultural and forest resources – discourage new development that is incompatible with uses related to the agricultural and forest industries. Affordable housing – encourage the siting and construction of affordable housing and comply with the requirements of Section 4358 pertaining to individual mobile homes and mobile home park siting and design requirements. The law sets a goal of having 10% of new residential development meet the definition of affordable housing. Municipalities are encouraged to seek creative approaches to assist in the development of affordable housing including, but not limited to, cluster housing, reduced minimum lot and frontage sizes, increased residential densities and use of municipally owned land. Your comprehensive plan should provide guidance on how best to promote affordable housing. Alternatives that can be considered if they are not already in the plan include: A density bonus when a developer agrees to provide affordable housing (see Appendix C for an example); A provision in the ordinance for an accessory apartment (see Appendix C for an example); Smaller lot size and frontage requirements in one or more growth districts (see Appendix B for an example). Historical and archaeological resources – ensure that the value of historical and archaeological resources are recognized and that protections are afforded to those resources that merit it. Outdoor recreation opportunities – ensure the availability of and access to traditional outdoor recreation opportunities including, without limitation, hunting, boating, fishing and hiking, and the creation of greenbelts, public parks, trails and conservation easements. The law states that each municipality “…shall identify and encourage the protection of undeveloped shoreland and other areas identified in the local planning process as meriting that protection.” Great ponds management – develop management goals for great ponds pertaining to the type of shoreline character, intensity of surface water use, protection of resources of state significance and type of access appropriate for the intensity of use of great ponds within the municipality’s jurisdiction. 2. BEFORE YOU BEGIN   Preparing a land use ordinance is a complex undertaking. It takes a lot of hard work, a lot of thoughtful deliberation by the committee charged with preparing the ordinance, and an outreach effort to keep the public informed of your work and to get their input throughout the process. The following paragraphs contain a summary of some of things you should consider prior to drafting a land use ordinance. What Does the Comprehensive Plan Say? The comprehensive plan is the basic foundation on which to build your land use ordinance. Title 30-A MRSA Section 4352 states that if a land use ordinance contains different standards for different parts of town, the ordinance must be pursuant to and consistent with a comprehensive plan adopted by the municipality’s legislative body. This manual assumes that your community prepared and adopted a comprehensive plan that the fb88 State Planning Office (SPO) has found to be consistent with fb88’s Comprehensive Planning and Land Use Regulation Act (Title 30-A MRSA Sections 4312 through 4350). If that is not the case, then one or more of the following may apply: No comprehensive plan. If you do not have a comprehensive plan, your community can adopt certain types of ordinances including a shoreland zoning ordinance, a flood hazard ordinance, a subdivision ordinance, a minimum lot size ordinance (provided that the same standards are applied town-wide), and a site plan review ordinance. However, your community can legally adopt a land use ordinance that meets the definition of a zoning ordinance in Title 30-A MRSA Section 4352 only if it is pursuant to and consistent with an adopted comprehensive plan. If you do not have a comprehensive plan, you should first take the step of preparing one before you prepare a land use ordinance with zoning provisions in it. Comprehensive plan with findings of inconsistency. If your community prepared a comprehensive plan and submitted it to SPO for review, and if SPO’s review found that the plan contained one or more inconsistencies related to land use, it is important that you work with SPO to resolve these findings. You can begin work on the land use ordinance, as long as you realize you may have to change the plan and the ordinance to address SPO’s findings. Comprehensive plan not completed, or being reviewed by SPO. You can start work on a land use ordinance prior to completion and municipal adoption of the comprehensive plan, as long as you realize you may have to make changes to the ordinance to address changes in the plan. Taken as a whole, the comprehensive plan provides a vision of the community’s future. A good land use ordinance can help a community achieve its vision. For example, the comprehensive plan may call for the expansion of an existing village, or the creation of new one. The plan may or may not address lot size and frontage requirements, and it may contain a list of the types of uses to allow in the village. In general, however, it will not address all the potential uses and regulatory details that need to be considered to make the vision a reality. It is the job of the people drafting the ordinance to address those details, and to ensure that the details of the ordinance are consistent with the vision. One way to make sure you keep track of what your comprehensive says relative to land use is make a list of all the strategies that need to be addressed in the ordinance. You can then consult the checklist as you proceed with different sections of the ordinance. What about Existing Ordinances? Your community may already have a zoning ordinance, a site plan review ordinance and a subdivision ordinance, to name a few, or a single land use ordinance that integrates some combination of these and possibly shoreland zoning and flood hazard management requirements. The task of preparing amendments to existing ordinances may be more straight-forward than preparing a new ordinance from scratch, but there are several issues that should be considered: Do existing ordinances have deficiencies that need to be addressed, such as poor administrative and enforcement provisions, inadequate definitions, or an illegible map? Do you want to integrate all land use ordinances into a single ordinance, or keep them separate? What is the time frame for preparing amendments? Do you want to limit your task at this time to adding provisions to implement the comprehensive plan, and tackle other issues at some later date? Who is going to do the Work? Writing an ordinance and reviewing its provisions can be very time-consuming and tedious. Completing the task within a reasonable period of time usually requires that one or two experienced people prepare drafts of the various sections, which are then reviewed by the planning board, land use committee or other entity. Ordinance drafting can be undertaken by one or a combination of the following: A staff person from the regional council or regional planning commission; A town planner or employee; An experienced member of the planning board; A resident; A consultant; A municipal attorney. If the community hires someone to do the work, it will have to appropriate funds and/or apply for an implementation grant from the fb88 State Planning Office. In a small community, the municipal planning board may be the logical entity to oversee preparation of the ordinance. However, the municipal officers may want to create a broader committee composed of one or more municipal officers, other town officials, the planning board, and/or interested members of the public. The board or committee charged with the responsibility of developing the ordinance should be as broadly representative of the public as possible. The municipal officers should formally assign responsibility for preparation of the ordinance so it is clear that the effort is being undertaken on behalf of the municipality. Where do we Begin? Ordinances are seldom written in a vacuum. One approach is to gather copies of ordinances from similarly situated communities and modify those ordinances to meet local needs or take provisions from two or more ordinances and combine them as needed to make a local ordinance. It is tempting to use another community’s ordinance as a starting point for your own, especially if you don’t have funds to hire someone to help you with the work. However, there are a number of pitfalls to this approach: Mistakes, conflicts, outmoded or unworkable provisions are incorporated into the new ordinance, if for no other reason than the fact that no one took the time to conduct a careful review and question each provision of the ordinance. For example, many comprehensive plans encourage village scale development, but some ordinances contain lot size requirements that prohibit village type growth. You can end up with provisions that you don’t need. For example, a small community located on minor roads in a rural part of the State is unlikely to need standards for trucking terminals and shopping centers. You may overlook or be unaware of regulatory techniques that would benefit your community, but which were not in the local ordinance you modified for your community. When you combine parts of different ordinances, you increase the chances that your ordinance will contain internal conflicts. This manual contains the building blocks you need to prepare a complete ordinance. It doesn’t contain a “fill-in-the-blanks” model because no single model could address the tremendous variation in local conditions that exist throughout fb88. It will help you get started. It is designed to help you think about the decisions that you should make as you prepare the ordinance. You can still add provisions that you like from other ordinances. If you decide that modifying another community’s ordinance is the best course of action for your community, this manual can still be helpful in bringing things to your attention that you might not have otherwise considered. It may also contain some helpful provisions that may be missing in the ordinance that you use as a starting point. Building Public Support One of the challenges of writing a land use ordinance is getting public involvement in the process. You can invite people to attend your meetings through notices and announcements, but few people will be interested in attending and listening to or commenting on your deliberations. There is no guarantee of public response to any one approach to obtaining public input. In general, though, the more avenues you use to reach the public, the greater likelihood you have of raising public awareness and getting public feedback. Virtually all of the approaches listed below require time and effort beyond that which is needed to prepare the ordinance. Suggestions for getting public input are listed below. Many of them are the same ones you may have used to gather public input in the preparation of the comprehensive plan: Write articles for the local paper - keep them short and to the point; Keep an up-to-date, 3-ring binder on display at the town office – include a one-page explanation on the cover of what it is; Hold a public workshop on the land use districts, using the matrix found in Appendix B (most people will be interested in what’s allowed in various districts; they may have less interest in some of the administrative provisions); Talk to various groups in town; keep it short – focus on the districts and perhaps one or two provisions that may be controversial, such as a rural growth cap (if that’s being considered); Hold a public supper, again focusing on just a few topics such as the land use districts; Prepare a brief report for municipal mailings such as the tax bill or notice of a special town meeting; and Delete from the ordinance and/or postpone a vote on the one or two items which, if left in the ordinance, could lead to defeat of the ordinance. For example, a rural growth cap or a large increase in the rural area lot size requirement may bring people to your meetings, but may also erode public support for your work. You don’t have to vote on everything at once. If there is a concern that one or more unpopular provisions may result in defeat of the proposed ordinance, you might consider voting separately on the controversial item, or waiting for another day to bring it to a vote. Statutory Authority The plan must include a summary of the public participation process used by the planning committee in developing the plan pursuant to 30-A MRSA §4324. The summary must indicate how information gathered during the public process was used to guide the plan’s vision statement, analyses, policies and strategies. (Comprehensive Planning Review Criteria Rule 07 105 Chapter 208):  HYPERLINK "http://www.maine.gov/spo/landuse/docs/compplanning/spocriteriarule.pdf" http://www.maine.gov/spo/landuse/docs/compplanning/spocriteriarule.pdf 3. WHAT IS A LAND USE ORDINANCE?  Overview A land use ordinance is a set of locally adopted regulations which prescribe the land uses, development densities, building setbacks, lot sizes, street frontages, etc., that are allowed or prohibited in different designated districts or zones. It may also include provisions for site plan review and other requirements aimed at controlling the quality of development and minimizing its environmental impact. While the terms “land use ordinance” and “zoning ordinance” are often used interchangeably, the term “land use ordinance” is used throughout this manual, as it contains more than zoning provisions. For example, some communities have included their local shoreland zoning, subdivision and floodplain management ordinances in a single land use ordinance. A land use ordinance will have a significant impact on how land is developed. A land use ordinance implements a comprehensive plan prepared in conformance with the State’s Comprehensive Planning and Land Use Regulation Act. The basic provisions of the ordinance must be linked to the policies and implementation strategies contained in the plan. You should review carefully the contents of your community’s comprehensive plan prior to drafting the land use ordinance. A good comprehensive plan documents the need for a particular provision in a land use ordinance such as the density and the type of uses that should be permitted in different districts. Good documentation in the plan may help the municipality successfully defend the provisions of the ordinance. In the past, land use ordinances have been used simply to separate incompatible land uses and to establish dimensional requirements. The problem with this conventional approach is that it results in land being developed in a grid or “cookie cutter” pattern with little regard for the topography of the land or the preservation of open spaces, wetlands and flood plain areas. Also, it does not allow historic patterns of growth like traditional New England Villages to continue. Under the provisions of most land use ordinances, there is little room for creativity or innovation. More recently, communities have adopted land use ordinances that contain environmental standards and flexible techniques such as open space subdivision requirements, that encourage innovation and a better, overall pattern of development. For example, some of these ordinances provide development incentives by allowing smaller lot sizes, setbacks and road frontages in return for public benefits such as the preservation of open space. A complete land use ordinance includes a text that specifies what requirements apply to each proposed use, and a map that shows the locations of the various land use districts. To withstand court challenge, a land use ordinance should be constructed in the correct manner and should contain a number of basic provisions. The following paragraphs suggest what you should include when you prepare a land use ordinance. Some suggested language is contained in the appendices. Types of Ordinances A land use ordinance can be a town-wide zoning ordinance, but it can also be a more specialized type of ordinance or a combination of both. Municipalities in fb88 have adopted many different types of ordinances, all or any combination of which can be considered a land use ordinance. The following is a partial list. All of the ordinances listed below typically contain administrative and enforcement provisions, standards and definitions, and may involve far more provisions than indicated by this brief overview. Flood hazard ordinance (required for participation in the national flood insurance program) – regulates building and sets standards in flood plain areas. Impact fee ordinance – establishes fees for certain impacts created by development. Minimum lot size ordinance – establishes a town-wide minimum lot size, usually for areas not served by a centralized sewer system. Moratorium – temporarily prohibits development or some types of development. Sewer ordinance – establishes requirements for extending sewer lines to new or existing developments. Shoreland zoning (mandated by State law) – sets forth uses and applies environmental criteria within 250 feet of tidal water, most lakes, and rivers and wetlands as described in the law, and 75 feet of certain streams as described in the law. Site plan review ordinance – regulates the quality of development through standards and a review process, but doesn’t stipulate where development should or should not go. Subdivision ordinance – regulates the division of a parcel of land or structure into three or more lots or dwelling units as defined in the subdivision law. Water supply ordinance – protects water supplies and establishes requirements for extending water lines to new or existing developments. Zoning – divides the municipality into districts in conformance with the comprehensive plan, applies different standards to each district, and generally contains performance standards aimed at regulating the quality of development. Form of the Ordinance Although a “one-liner” (for example, “No building may be constructed without a permit”) may seem like an effective, simple-to-understand kind of ordinance, it would not contain enough detail to make it easy to administer or enforce. In preparing a land use ordinance, the following checklist can be used to ensure that the ordinance has all the basic provisions: A general section including provisions for: Purpose; Statutory authority; Interpretation of the ordinance; Severability clause explaining what happens to the rest of the ordinance if part is held invalid by a court; Inconsistent or conflicting ordinance clause; Amendments; Effective date. Administrative section: Designation of person or board to make decisions on applications; Permit review and approval procedures; Fees; Designation of who enforces the ordinance; Penalties. Non-conforming uses section for pre-existing uses that don’t comply with the ordinance including definition, continuation, and termination clauses. Establishment of land use districts and map section: Permitted uses by districts; Development standards (land use, density, setbacks, etc). Performance standards: Growth control provisions; Environmental standards such as erosion control; Standards for specific uses such as home occupations. Appeals section: What can be appealed and what cannot; Right to appeal, to whom and within what time frame. Definitions section. Map of Districts The land use map that is incorporated into the ordinance by reference should be based on the growth and rural areas contained in the comprehensive plan. However, the land use map must define the location of the districts in greater detail. The boundaries of the districts may follow built features such as roads, or natural features such as rivers and streams, or property lines. In some cases, boundaries may be defined by a given distance from a natural feature. For example, the boundary of a shoreland district will generally be 250 feet from the normal high water mark of the water body or wetland, or 75 feet from a stream. 4. LEGAL CONSIDERATIONS CONSTITUTIONAL ISSUES While there are many constitutional issues that could have a bearing on the preparation of a land use ordinance, the two that may be most relevant in fb88 relate to delegation of legislative authority and reasonableness. There have been a number of fb88 court cases upholding the need for standards and dealing with the issue of reasonableness. Standards/Delegation of Legislative Authority A land use ordinance must contain specific standards of review if it requires the issuance of a permit or the approval of a development plan. The standards must be something more than “as the board deems in the best interest of the public” or “as the board deems necessary to protect the public health, safety and welfare.” It is also very important to include language in the land use ordinance that instructs the reviewing board (usually the Planning Board) about the action it shall take. It is not enough merely to say that the board must “consider” or “evaluate” certain information. If an ordinance gives the administrators of the ordinance unlimited discretion to approve or deny an application, it creates two constitutional problems: First, it violates the applicant’s constitutional rights of equal protection and due process because 1) it does not give the applicant sufficient notice of what requirements he or she will have to meet and 2) it does not guarantee that every applicant will be subject to the same requirements. Second, it also gives the administrators of the ordinance (rather than the legislative body) the power to write and then adopt part of the ordinance. The courts call this “improper delegation of legislative authority.” Legally, only the legislative body can adopt ordinances, unless a statute gives that authority to some other person or board. Reasonableness Another constitutional limitation is that the land use ordinance must be a “reasonable” means to protect the public health, safety and welfare. It must also be reasonably related to the public purpose it is intended to achieve and cannot be so restrictive that a landowner is deprived of all reasonable use of the property being regulated. In addition, the regulations must not have the effect of systematically restricting the ability of people to move to or within the community. If a regulation fails to be reasonable, it could be found to be a taking of private property for public purposes without just compensation. The extent to which this limits a local government’s ability to regulate property for public purposes is often exaggerated. The courts in fb88 have upheld a number of regulations as being a valid use of a municipality’s police power. This does not diminish the importance of this issue but regulations that serve a legitimate public purpose should not be foregone for fear of “taking” property. STATE LAWS The following is a summary of State laws that will directly or indirectly affect how you draft your ordinance and how it will work. Home Rule In 1969, the fb88 Legislature adopted a statute (Title 30 MRSA Section 1917) which designated broad “home rule” ordinance powers to cities and towns. This statute was revised and re-numbered in 1989 (Title 30-A MRSA Section 3001) to make it clear that the Legislature intended “home rule” to be a very broad grant of authority. In its present form, the home rule statute reads as follows: “30-A Section 3001. Ordinance power Any municipality, by the adoption, amendment or repeal of ordinances or bylaws, may exercise any power or function which the legislature has power to confer upon it, which is not denied either expressly or by clear implication, and exercise any power or function granted to the municipality by the Constitution of fb88, general law or charter. Liberal construction. This section, being necessary for the welfare of the municipalities and their inhabitants, shall be liberally construed to effect its purposes. Presumption of authority. There is a rebuttable presumption that any ordinance enacted under this section is a valid exercise of a municipality’s home rule authority. Standard of presumption. The Legislature shall not be held to have implicitly denied any power granted to municipalities under this section unless the municipal ordinance in question would frustrate the purpose of any state law. Penalties accrue to municipality. All penalties established by ordinance shall be recovered on complaint to the use of the municipality.” The Home Rule statute provides a basis for the adoption of a broad variety of local land use ordinances that are not expressly authorized by State law as long as they are not expressly prohibited by other statutes (by way of example, see discussion of moratoriums, below). Home Rule Limitations The fb88 Legislature has adopted a number of express limitations on municipal home rule authority in Title 30-A MRSA Sections 4351 through 4360. Municipalities are bound by the requirements of these sections which are briefly summarized in the following paragraphs. Section 4351 contains a general statement that this subchapter of Title 30-A (Sections 4351 through 4360) includes express limitations on municipal home rule authority. Zoning Ordinances Section 4352 states that a municipal zoning ordinance may provide for any form of zoning consistent with sections 4352-4360 and subject to a number of provisions. These provisions apply whenever an ordinance meets the statutory definition of a zoning ordinance, even if it is called a land use ordinance, a growth control ordinance, or something else. The definition of zoning ordinance is contained in Title 30-A MRSA Section 4301, subsection 15-A: “Zoning ordinance means a type of land use ordinance that divides a municipality into districts and that prescribes and reasonably applies different regulations in each district.” The provisions of Section 4352 include the following: Public participation required. The public shall be given an adequate opportunity to be heard in the preparation of a zoning ordinance (see also number 9 on the next page). Relation to comprehensive plan. The ordinance must be pursuant to and consistent with a comprehensive plan adopted by the municipality’s legislative body. This requirement does not apply to a shoreland zoning ordinance, a flood hazard management ordinance, or an ordinance regulating adult entertainment establishments. Zoning map required. A zoning map must be adopted as part of the ordinance. Exemption for public service corporations. Public service corporations are wholly or partially exempt only when, on petition, notice and public hearing, the Public Utilities Commission determines that the exemption is necessary for public welfare and convenience. Effect on local governments. County and local governments and districts are subject to any zoning ordinance. Effect on State. A zoning ordinance that is not consistent with a comprehensive plan that is consistent with the provisions of Section 4326 (review and a finding of consistency by the State Planning Office) is advisory with respect to the State. A zoning ordinance that is consistent with a comprehensive plan that is consistent the provisions of Section 4326 is binding on a State agency seeking to develop any building, parking facility or other publicly owned structure. The Governor, or the Governor’s designee, may, after public notice and opportunity for public comment, including written notice to the municipality, waive any use restrictions in those ordinances upon a finding that certain conditions are met. These include the fact that the project isn’t allowed anywhere in the municipality, there are no reasonable alternatives, there will be public benefits that extend beyond the municipality, and the project is necessary to protect public health, welfare or the environment. Petition for rezoning; bond. A local zoning ordinance can require that if a person petitions for rezoning of an area for development in accordance with an architect’s plan, the person must post a bond equal to 25% of the cost of the development. The ordinance can stipulate that the bond shall become payable to the municipality if the petitioner fails to begin substantial construction within one year of the effective date of the rezoning. Conditional and contract zoning. A zoning ordinance can contain provisions for conditional or contract zoning provided that any rezoning must: Be consistent with the municipality’s growth management program; Establish rezoned areas that are consistent with the existing and permitted uses within the original zone; and Only include conditions and restrictions that relate to the physical development or operation of the property. There are a number of notice requirements in Section 4352, subsection 8 that must be met before any property is rezoned under this section. Notice; general requirements. Before adopting a new zoning ordinance or map or amending an existing ordinance or map, the municipal reviewing authority must post and publish public notice of the public hearing required under #1, above, in accordance with the following: The notice must be posted in the municipal office at least 13 days before the public hearing; and The notice must be published at least two (2) times in a newspaper that has general circulation in the community. The date of the first publication must be at least 12 days before the hearing. The date of the second publication must be at least 7 days prior to the hearing. The notice must be written in plain English, understandable by the average citizen. Notice must also be sent by regular mail to a public drinking water supplier if the area to be rezoned contains its source water protection area. Subsection 1, above, does not clearly state that a public hearing is required. However the need for a public hearing is clearly affirmed by subsection 9. Additional notice, limited areas. A municipality must provide additional notice beyond that contained in #9, above, when a proposed amendment would result in one of the following: An amendment would have the effect of either prohibiting all industrial, commercial or retail uses where any of these uses is currently permitted; or An amendment would have the effect of permitting any industrial, commercial or retail uses where any of these uses is currently prohibited. The notice must contain a copy of the map indicating the portion of the municipality affected by the proposed amendment. The notice must also be sent by first class mail at least 13 days before the public hearing to the owners of any parcels abutting the area proposed for rezoning. The municipal officers are required to keep a list of the people and the addresses to which the notice was sent. Zoning Adjustment Section 4353 requires that any municipality that adopts a zoning ordinance shall establish a board of appeals subject to Section 4353. Jurisdiction, procedure. The board of appeals shall have the authority: To hear and decide administrative appeals, on an appellate basis, from actions by the Planning Board; To hear and decide administrative appeals, on a “de novo” basis, from actions by the Code Enforcement Officer; and Any order, requirement, decision, or determination made, or failure to act, in the enforcement of a land use ordinance is not appealable to the Board of Appeals. Appeals regarding enforcement go directly to the Superior Court. Powers. The board of appeals shall have the following powers: Interpret provisions of the ordinance that are called into question; Approve the issuance of a special exception permit or conditional use permit, unless the ordinance gives that authority to the planning board; and Grant a variance in strict conformance with #4, below. Many local ordinances no longer contain provisions for a special exception permit or a conditional use permit, but instead require that for certain uses, the applicant submit an application for site plan approval to the municipal reviewing authority. The municipal reviewing authority is usually the planning board. Parties. The board of appeals is required to notify the petitioner, the planning board, agency or office and the municipal officers of any hearing, and they shall be considered parties to the action. Variance. The board of appeals may grant a variance to a petitioner when the ordinance would create an undue hardship. An undue hardship is defined as: The land in question cannot yield a reasonable return; The need for the variance is due to the unique circumstance of the property and not the general conditions in the neighborhood; The granting of a variance will not alter the essential character of the locality; and The hardship is not the result of action taken by the applicant or a prior owner. Municipalities may adopt additional limitations on granting variances, including a requirement that a variance can only be granted for a use that’s allowed in a particular district. 4-A. Disability variance. The board may grant a variance to the owner of a dwelling for purposes of making the dwelling accessible to a person with a disability who regularly uses the dwelling. 4-B. Setback variance for single family dwellings. This subsection states that the municipality may adopt an ordinance that allows the board of appeals to grant a setback variance for a single family dwelling when the zoning ordinance would cause undue hardship. Undue hardship is defined differently than in #4, above. The statutory language should be consulted prior to including this provision in the local ordinance. 4-C. Setback variance from dimensional requirements. This subsection states that the municipality may adopt an ordinance that allows the board of appeals to grant a variance from dimensional requirements including lot area, lot coverage, frontage and setback requirements. Undue hardship is defined differently than in #4 or 4-B, above. The statutory language should be consulted prior to including this provision in the local ordinance. Variance recorded. This section requires that variances be recorded in the local registry of deeds within 90 days of the final written approval of the variance or the variance is void. Moreover, the variance is not valid until it has been recorded. The Statute is silent about who is responsible for recording the variance. Subsections 4-B and 4-C, above, are optional, and cannot be used unless language is specifically included in the local ordinance allowing for such variances. Having three different sets of criteria for granting variances may cause confusion, especially for new members of a local board of appeals. Impact Fees Section 4354 allows municipalities to require the construction of off-site capital improvements or payment of impact fees instead of the construction. The requirements may apply to expansion or replacement of existing infrastructure facilities, or the construction of new infrastructure facilities. Infrastructure facilities include, but are not limited to: Waste water collection and treatment facilities; Municipal water facilities; Solid waste facilities; Public safety equipment and facilities; Roads and traffic control devices; Parks and other open space or recreational areas; and School facilities. Ordinances that impose impact fees must meet the following requirements: The amount of the fee must be reasonably related to the development’s share of the cost of infrastructure improvements made necessary by the development, or, if the improvements were constructed at municipal expense prior to the development, the fee must be reasonably related to the portion or percentage of the infrastructure used by the development. Funds received from impact fees must be segregated from the municipality’s general revenues. The municipality shall expend the funds solely for the purposes for which they were collected. The ordinance must establish a reasonable schedule under which the municipality is required to use the funds in a manner consistent with the capital investment component of the comprehensive plan. The ordinance must establish a mechanism by which the municipality shall refund impact fees, or that portion of impact fees, actually paid that exceed the municipality’s actual costs or that were not expended according to the schedule. Municipalities that are part of a school administrative district or other single or multi-community school district may deposit collected impact fees in a trust fund to be used to pay their proportionate share of anticipated school capital costs. Application Fees Section 4355 states that application fees for any land use permit issued by the municipality may not exceed the reasonable cost of processing, review, regulation and supervision of the application by the municipality and its consultants. Moratoria Section 4356 regulates any moratorium adopted by a municipality on the processing or issuance of development permits or licenses. Necessity. The moratorium must be needed: To prevent a shortage or an overburden on public facilities that would otherwise occur or could reasonably be expected to occur as a result of any proposed or anticipated development; or To prevent serious public harm resulting from residential, commercial or industrial development that could occur because of the inadequacy of the comprehensive plan or land use ordinances. Definite term. The moratorium must not be for a period of time exceeding 180 days. However, the moratorium may be extended for additional 180-day periods if the problem giving rise to the need for the moratorium persists and reasonable progress is being made to alleviate the problem. In communities with the town meeting form of government, the selectmen may extend the moratorium after notice and hearing. Community Living Arrangements Section 4357-A states that for the purposes of zoning, a community living arrangement is deemed to be a single family use of property. The statute defines community living arrangement as a housing facility for 8 or fewer persons with disabilities that is approved, authorized, certified or licensed by the State. Regulation of Manufactured Housing Section 4358 defines the term “manufactured housing” and in subsection 2 requires that municipalities permit manufactured housing to be placed or erected on undeveloped individual house lots in a number of locations (but not necessarily all locations) where single family dwellings are allowed, subject to the same requirements as single family dwellings. The law says that for the locations required by Section 4358, municipal ordinances may not require that manufactured housing be greater than 14 feet in width. Municipalities may establish design criteria including, but not limited to, a pitched, shingled roof, a permanent foundation, and exterior siding that is residential in appearance, provided that the design requirements do not have the effect of circumventing the purposes of this section. Modular homes which are a type of manufactured home must be allowed in all districts where single family homes are permitted. Section 4358, subsection 3, deals with the regulation of mobile home parks. Subsection 3A includes a requirement that municipalities may not require lot sizes in mobile home parks to be larger than: 6,000 square feet or the area of the smallest residential lot permitted in the community, whichever is smaller, for mobile home parks served by a public sewer system; 20,000 square feet for mobile home parks with an on-site, subsurface sewage disposal system on each lot; 12,000 square feet for mobile home parks served by a central, on-site subsurface waste disposal system. Subsection 3M requires that a municipality permit mobile home parks to expand and to be developed in a number of environmentally suitable locations in the municipality with reasonable consideration being given to permit existing mobile home parks to expand in their existing locations. See Section 4358 for additional limitations on the regulation of manufactured housing. Also check with the State Planning Office’s handbook “fb88’s New Mobile Home Park Law, a Guidebook for Local Officials,” for additional assistance on preparing ordinance standards for mobile home parks. Source Water Protection Area Section 4358-A states that a municipality must notify a public drinking water supplier if a proposed land use project is within the supplier’s source water protection area and is reviewed by a municipal reviewing authority and, as part of the that review, the municipality notifies abutters. State Policy Relating to Commercial Landfill Facilities Moratoria Section 4359 merely affirms the importance of state and municipal control over the establishment and substantial expansion of commercial landfill facilities. The law states that a municipality may, under its home rule authority, enact a moratorium on a new facility or a substantial expansion of an existing facility. Rate of Growth Ordinances Section 4360 contains two important provisions relating to rate of growth ordinances: Ordinance review and update. This subsection requires a municipality that enacts a rate of growth ordinance to review and update the ordinance at least every 3 years to determine whether it is still necessary, and how the ordinance can be adjusted to meet current conditions. Differential ordinances. Subsection 2 states that a municipality may enact rate of growth ordinances that set different limits on the number of building or development permits that are permitted in designated growth and rural areas. Section 4360 also contains ordinance requirements and clearly allows municipalities to establish different growth caps for different areas, or to establish a growth cap in rural areas but no cap in growth areas. Shoreland Zoning Act fb88’s Shoreland Zoning Act (Title 38 MRSA Sections 435-449) requires that each municipality regulate the land area within 250 feet of the normal high water mark of any great pond, river or salt water body, within 250 feet of the upland edge of a coastal or fresh water wetland (with some exceptions) and within 75 feet of the high water line of a stream. Municipalities are required to administer and enforce local ordinances that are consistent with the State’s Shoreland Zoning Guidelines. The law gives the fb88 Department of Environmental Protection the responsibility of periodically updating the Guidelines. You can either include shoreland zoning provisions in the land use ordinance or keep them as a separate ordinance. This manual does not include shoreland zoning provisions, but does include an outline of a town-wide ordinance that would apply to all land areas of your community, including the 250-foot shoreland zone. Your community will have to determine the best method for integrating these two ordinances. For some municipalities, it may be more appropriate to have two separate ordinances that regulate the shoreland area (a shoreland zoning ordinance and a town-wide land use ordinance), while other municipalities may want to integrate the shoreland requirements into their town-wide ordinance. Check with the fb88 Department of Environmental Protection for the latest version of the Shoreland Zoning Guidelines when drafting an ordinance that includes shoreland zoning provisions. Site Plan Review Site plan review is an important part of any land use ordinance that is based on the suggested approach for preparing a land use ordinance contained in Chapter 6 and the suggested format contained in Appendix A. Site plan review requirements contain procedures and standards for local review of projects that potentially could have a major impact on the community. The purposes of site plan review are to: A. Provide a level of municipal review, that would not otherwise occur, of projects that potentially could impact the community; B. Conserve the Town's natural beauty and visual character by ensuring that structures, signs and other improvements, are sited and developed with due regard to the aesthetic qualities of the natural terrain and that pro