Did the Committee Amendment to LD 1481 fix the constitutional problem identified in the Maine AG's June 10, 2005 opinion?

Plain-English summary

Senator Elizabeth Schneider and Representative Christopher Barstow asked Attorney General G. Steven Rowe whether a proposed Committee Amendment to LD 1481 fixed the constitutional defect his office had flagged in the bill's earlier form on June 10, 2005. The original bill restricted only ordinances enacted by citizen initiative from applying to construction projects that had received municipal land use permits. The June 10 opinion had concluded that singling out citizen-initiated ordinances violated Article IV, Part 3, § 21 of the Maine Constitution, because the section reserved that kind of substantive limit on local initiatives to municipalities themselves.

The Committee Amendment took a different approach. It added a new subsection 6 to 30-A M.R.S.A. § 3007 prohibiting any municipality from nullifying or amending a municipal land use permit through a subsequent ordinance change after the permit had received final approval and 30 days had passed. The restriction now applied uniformly to ordinances enacted by municipal officials and ordinances enacted by citizen initiative.

The AG's conclusion was short: by imposing the retroactivity limit directly on municipalities (and not singling out citizen-initiated ordinances), the amendment stayed within the Legislature's authority. The Article IV, Part 3, § 21 issue was resolved.

The opinion was a single-issue constitutional review and did not address the policy merits of the amendment. The office issued a longer follow-up opinion on May 13, 2006 examining the bill's eventual operation as a possible unfunded mandate under Article IX, § 21.

Currency note

This opinion was issued in 2006. 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.

Background and statutory framework

LD 1481 was the second iteration of an effort that began with LD 389 in 2003, both designed to give developers certainty that their permits could not be nullified by later citizen-driven ordinance changes. The June 10, 2005 opinion concluded that LD 1481 (and its predecessor LD 389) violated the constitutional reservation of substantive initiative-power to municipalities by carving citizen-initiated ordinances out from what other ordinances could do.

Article IV, Part 3, § 21 grants city councils authority to establish direct initiative and people's veto, with the Legislature retaining authority to provide a "uniform method" for exercising those rights. The Maine Law Court in LaFleur v. Frost (1951) held that procedural rules are within the Legislature's reach, but substantive limits on what initiatives can do are reserved to the municipalities.

The Committee Amendment essentially restructured the bill's mechanism. Instead of telling citizens what they couldn't do via initiative, it told municipalities what they couldn't do, period. That was a clean exercise of the Legislature's general statutory authority over municipal home rule, which the AG's office had no quarrel with.

The fix was important because the substantive problem in the AG's June 10 opinion had not been about the underlying policy goal (developer protection from late-arriving ordinance changes) but about the targeting mechanism. By making the policy rule generally applicable, the bill avoided the constitutional reservation entirely.

Common questions

Q: What was the constitutional problem with the original LD 1481?
A: The original bill restricted only citizen-initiated ordinances from applying to permitted projects, leaving municipality-enacted ordinances unaffected. That asymmetry was a substantive limit on the citizen initiative power, which under Article IV, Part 3, § 21 is reserved to municipalities themselves to impose.

Q: How did the Committee Amendment fix it?
A: By imposing the retroactivity restriction on all municipalities, regardless of whether an ordinance was enacted by officials or by citizen initiative. The Legislature has broad authority over municipal powers generally; it was only the targeting of citizen-initiated ordinances that crossed the constitutional line.

Q: Could the Legislature have taken a different fix?
A: Possibly. The Legislature could have stayed silent and let municipalities set their own developer-protection rules. Or it could have raised a different statutory framework for vested rights. The Committee Amendment was one constitutionally valid path among several.

Q: Did the AG opine on whether the amendment was a good policy?
A: No. The opinion explicitly disclaimed any view on policy: "the determination of the policy issues posed by this amendment are for the Legislature to determine, and in providing this information we do not express an opinion on matters of policy."

Citations and references

Constitutional provision:
- Maine Constitution, Article IV, Part 3, § 21

Statute (proposed):
- 30-A M.R.S.A. § 3007, sub-§ 6 (Restriction on nullification of final permit)

Related AG opinions:
- Op. Me. Att'y Gen. June 10, 2005 (constitutional analysis of original LD 1481)
- Op. Me. Att'y Gen. May 13, 2006 (mandate analysis of LD 1481 as further amended)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2006/ag_20060117.pdf

Original opinion text

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

G. STEVEN ROWE
ATTORNEY GENERAL

January 17, 2006

Senator Elizabeth Schneider, Senate Chair
Representative Christopher Barstow, House Chair
Joint Standing Committee on State and Local Government
100 State House Station
Augusta, ME 04333-0003

Re: Proposed Committee Amendment to LD 1481

Dear Senator Schneider and Representative Barstow:

During the work session on LD 1481 held on January 11, 2006, you asked for an opinion concerning a proposed Committee Amendment to the bill, a copy of which is attached. Specifically, you have asked whether the constitutional issue identified in our June 10, 2005 opinion has been resolved by the language of the Committee Amendment.

LD 1481 contains provisions that would have prohibited a municipal initiative or referendum from having any retroactive effect on existing land use permits or approvals without imposing such a restriction directly upon municipalities. By doing so, as we stated in our opinion of June 10, 2005, the bill would have limited the subject matter of municipal ordinances that are subject to the municipal initiative and people's veto process in conflict with the requirements of Art. IV, Pt. 3, § 21 of the Maine Constitution. The proposed Committee Amendment removes all the provisions of the bill that would have limited the scope of ordinances enacted by municipal initiative and referendum as distinct from other ordinances. Instead, the amendment imposes the retroactivity limitation directly upon municipalities, which we believe to be within the Legislature's authority. In doing so, the amendment eliminates the constitutional issue we identified in our opinion.

As always, the determination of the policy issues posed by this amendment are for the Legislature to determine, and in providing this information we do not express an opinion on matters of policy.

Sincerely,

G. STEVEN ROWE
Attorney General

GSR/elf
cc: Anna Broome, Legislative Analyst, OPLA

Committee Amendment " " to LD 1481, An Act To Amend the Laws Governing the Enactment Procedures for Ordinances

Amend the bill by striking out everything after the enacting clause and before the summary and inserting in its place the following:

'Sec. 1. 30-A MRSA § 3007, sub-§ 6 is enacted to read:

§ 3007, sub-§ 6 Restriction on nullification of final permit

A municipality may not nullify or amend a municipal land use permit by a subsequent enactment, amendment or repeal of a local ordinance after the permit has received its lawful final approval and a period of 30 days has passed. For the purposes of this section, a municipal land use permit includes municipal building permits, zoning permits, subdivision approvals, and site plan approvals.'

SUMMARY

This amendment replaces the original bill. It limits the municipalities from nullifying or amending permits by a subsequent enactment, amendment or repeal of a local ordinance.