When an electric utility wants to install a new line through Maine's unorganized territories (the area regulated by LURC), does the utility need a Land Use Regulation Commission permit?

Plain-English summary

Deputy AG Philip Ahrens asked Assistant AG Jeffrey Pidot to advise on whether a Land Use Regulation Commission (LURC) permit was required for a new electric utility line several miles long running through LURC territory just south of Baxter State Park. Pidot's answer: LURC regulations generally do require a permit for a major new utility installation, but the Legislature carved out a specific exemption when the line follows a "public way." The exemption sits in 35-A M.R.S.A. §§ 2305 and 2501 et seq., with §§ 2502 and 2503 doing the operational work.

§ 2503 sets up the public-way permit process. For lines along a state, state-aid, or federal-aid highway, approval comes from the Department of Transportation. For lines along a city street or town way, approval comes from the municipal officers. For lines along any other public way (the catch-all that covers the county roads typical in unorganized territories), approval comes from the county commissioners. § 2503(3) generally limits the field of objectors to abutters of the public way. § 2503(20) seals the deal by making this permitting process exclusive: a utility that goes through it does not also have to comply with other licensing requirements (including LURC review) to locate the line along the public way.

The practical answer for the Baxter-adjacent line depended on how much of the route would actually run along a public way. If almost all of it was on a public way and only a short stub left the road to reach the served premises, the stub might qualify as a "service drop," which is also exempt from LURC permitting. In that case, the only avenue for objection would be the abutter procedure in § 2503, and the universe of permissible objectors would be narrow. If a significant portion of the line ran across land that was not a public way, a LURC permit would be required for that portion.

Pidot's memo is structurally about the relationship between two overlapping regulatory regimes. LURC has broad land-use authority over Maine's unorganized territories. Title 35-A's utility-line provisions carve out a focused exception for utility infrastructure that follows existing public corridors. The Legislature evidently decided that subjecting routine utility expansions along county roads to full LURC review would burden the orderly extension of electric service. The opinion's takeaway is to look first at the line's relationship to the public way grid, then ask only about the residue when planning permitting strategy.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is LURC?

The Land Use Regulation Commission (now reorganized as the Land Use Planning Commission) is the state body with land-use jurisdiction over Maine's unorganized territories. In 1988 it administered permits for development and infrastructure projects, including major utility installations, in those territories.

What is a 'public way' for purposes of § 2503?

§ 2503 distinguishes among state, state-aid, and federal-aid highways (approval by DOT); city streets and town ways (approval by municipal officers); and "all other public ways" (approval by county commissioners). The catch-all county-commissioner category covers most public roads in Maine's unorganized territories.

What is a 'service drop' and why does it matter?

A service drop is the short utility connection from the main distribution line to a customer's premises. Pidot's memo treats a service drop as also exempt from LURC permitting, even if it leaves the public way. The argument lets a utility avoid LURC review for a small extension where almost all of the line runs along the road.

What does § 2503(20) actually say?

It makes the public-way permitting process exclusive. A utility that has gone through the § 2503 process is exempt from having to comply with any other licensing requirement to locate the line along that public way. Pidot called it the "coffin shut" provision.

Who can object to a § 2503 permit?

§ 2503(3) generally limits objection to a person owning property that abuts the public way involved. The procedural design is to facilitate the permit, not to open the process to general public participation. A non-abutter who wanted to challenge a permitted line would have limited recourse.

Did the memo bind LURC?

The memo was advice to Deputy AG Ahrens about how to evaluate whether LURC review was required. LURC could draw its own conclusions about its jurisdiction, though the AG's reading of § 2503(20) carries weight as the legal advice the state's executive branch was operating under.

Background and statutory framework

Title 35-A of the Maine Revised Statutes governs Maine's electric utility regulation. § 2305 and the §§ 2501 et seq. series provide the framework for line placement, including approval procedures, abutter rights, and the relationship between utility line permitting and other land-use regulatory regimes. LURC, in turn, was established to bring land-use planning to the unorganized territories. The 1988 memo identifies the legislative carve-out in § 2503(20) and explains how it allocates jurisdiction between the two regimes.

Citations

• 35-A M.R.S.A. § 2305
• 35-A M.R.S.A. § 2501 et seq.
• 35-A M.R.S.A. § 2502
• 35-A M.R.S.A. § 2503
• 35-A M.R.S.A. § 2503(3)
• 35-A M.R.S.A. § 2503(20)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880616.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Department of Attorney General

MEMORANDUM

To: Philip Ahrens, Deputy Attorney General
From: Jeffrey Pidot, Assistant Attorney General
Date: June 16, 1988
Subject: Utility Line Installation in LURC Jurisdiction

With apologies for the delay, I wanted to get back to you on your question regarding whether a permit is required from LURC for the installation of a new electric utility line to serve premises lying just south of Baxter Park. My understanding from you was that the line involved would be several miles in length.

As expected, LURC regulations generally provide that such a major new utility installation requires a permit. However, LURC is not the final arbiter of this issue. The Legislature has provided an exemption from any such regulatory permit where the installation will be undertaken by an electric utility company in accordance with 35-A M.R.S.A. §§ 2305 and 2501, et seq. Of particular application here are §§ 2502 and 2503. These sections require that, where a utility line is to be strung along a "public way", approval must be obtained from the State Department of Transportation when the public way is a state, state aid or federal aid highway, from the municipal officers when the public way is a city street or town way (not at issue here) and from the county commissioners for all other public ways. Generally, § 2503(3) contemplates objection to the issuance of such a permit only by a person owning property which abuts the public way involved. Indeed, my sense of § 2503, in its entirety, is that it is designed to provide a maximally facilitated process for obtaining such permits. To nail the coffin shut, § 2503(20) makes this permitting process exclusive and exempts the utility involved from having to comply with any other licensing requirement in order to locate a utility line along a public way.

In sum, much depends upon whether the utility line involved will lie along a so-called public way. If only a small portion of the line will not be within the public way, it may be possible for the utility to argue that whatever small extension is required beyond the public way (in order to serve the premises involved) is a "service drop" which is also exempt from LURC permitting requirements. If this be the case, it would appear that one's only recourse is to attempt to object under the provisions of § 2503, and consequently probably not even be heard on the matter. If, on the other hand, a significant portion of the utility line involved will not be along a public way, a LURC permit will be required.

I hope that this has been an enjoyable experience.