Did the final amended LD 1481, with its 75-day deadline for nullifying municipal land use permits, create an unfunded mandate by forcing towns to schedule special town meetings on citizen petitions?
Plain-English summary
Senator Bartlett and Representative Faircloth asked Attorney General G. Steven Rowe two related questions about LD 1481 in its final amended form. The bill prohibited a municipality from nullifying or amending a land use permit by ordinance change after 75 days had passed from final permit approval (and any required public hearing). The questions:
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Did the 75-day window force towns to schedule a special town meeting to vote on a timely citizen petition seeking to nullify or amend a permit, and if so, did that create an unfunded mandate under Maine Constitution Article IX, § 21?
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Could a town instead delay the vote past 75 days, and if so, would that effectively deny citizens a meaningful right of initiative under the rule of LaFleur v. Frost?
The AG's conclusions were:
On the mandate question. Although LD 1481 didn't explicitly require special meetings, the AG read the bill plus existing statutes to implicitly require them. If a citizen petition was filed in time, the only way the petition could have its intended legal effect, preventing finalization of the land use permit: would be a town meeting vote within the 75-day window. If a regular town meeting wasn't already scheduled within that window, the selectmen had to call a special one. If they refused, a notary public could call one under 30-A M.R.S.A. § 2521(4) on the ground that refusal was unreasonable. Given that special meetings cost money to convene, the AG concluded that, on balance, a court would more likely than not find LD 1481 created an unfunded mandate.
On the citizen-rights question. The AG concluded LD 1481, read together with the existing town-meeting statutes, did not permit towns to delay a vote on a timely petition beyond the 75-day window. To allow such a delay would conflict with the citizens' statutory right to petition for an ordinance change and would parallel the situation in LaFleur v. Frost where a city tried to put initiative power in the hands of a small committee.
The AG's answer to the second question reinforced the first: because a town's selectmen could not lawfully delay a vote on a valid petition past 75 days, they had to schedule a special meeting (if no regular one fit), which is what generated the implicit mandate.
The opinion noted multiple uncertainties, no Maine case had construed Article IX, § 21 in this kind of fact pattern, the Wells v. Ogunquit precedent could be read either narrowly or broadly, and the bill's actual operation depended on practical municipal-law nuances the AG's office did not routinely engage with. The AG suggested an alternative drafting that would avoid the mandate concern: making the 75-day deadline apply only to filing the petition (giving selectmen normal latitude to schedule the vote at a regular or special meeting).
The opinion also flagged the alternative path: under 30-A M.R.S.A. § 5685(4), if the Legislature treated the bill as not containing a mandate but a court later disagreed, individual towns could simply refuse to comply, forcing litigation.
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 went through three iterations. The original bill (June 2005) restricted only citizen-initiated ordinances from applying to permitted projects, which the AG concluded was unconstitutional under Article IV, Part 3, § 21. Committee Amendment "C" (January 2006) restructured the bill to apply the retroactivity restriction to all municipalities, fixing the constitutional problem. Senate Amendment "C" (early 2006) extended the deadline from 30 to 75 days. The May 13 opinion analyzed this final amended version.
Article IX, § 21 of the Maine Constitution was added in 1992 to address chronic complaints about state-imposed costs being passed to local governments without funding. It bars the State from "requir[ing] a local unit of government to expand or modify that unit's activities so as to necessitate additional expenditures from local revenues" unless the State funds 90% of the cost. The implementing statute, 30-A M.R.S.A. § 5685, provides that local units are simply "not bound" by any unfunded mandate.
The constitutional analysis turned on whether LD 1481's 75-day window forced towns to engage in new "activities", specifically, holding special meetings, that they didn't have to do under existing law. The AG's office reviewed the only Law Court case construing Article IX, § 21 (Wells v. Ogunquit, 2001 ME 122) and observed it took a fairly narrow view of "expanded activities." But Wells could be distinguished: that case involved a funding-formula change that simply made Wells pay more for activities it was already doing. LD 1481 would push some towns into doing something new (calling a special meeting they otherwise wouldn't have called).
The opinion drew on a thin body of Maine case law concerning when selectmen "unreasonably refuse" to call town meetings (30-A M.R.S.A. § 2521(4)). Jones v. Sanford (1877) articulated the general principle that town meetings can be called on short notice. Three later cases, Southard, Allen v. Hackett, Googins v. Gilpatrick, addressed specific facts but didn't crystallize a clear standard.
The AG also relied on LaFleur v. Frost (1951) by analogy. LaFleur held a city ordinance unconstitutional that put initiative power in the hands of ten original petitioners. The principle: once the law gives citizens a right to put a measure to the voters, the body administering the process can't constructively deny that right through procedural games. Applied to LD 1481, allowing selectmen to delay past 75 days would be analogous to denying the right.
The opinion repeatedly noted scarcity of relevant case law and the limits of the AG's expertise in day-to-day municipal practice. Senator Bartlett's office had specifically convened municipal-law practitioners to weigh in, and the AG took those competing views seriously without endorsing any one.
Common questions
Q: What did LD 1481 in its final form do?
A: It prohibited a Maine municipality from nullifying or amending a final land use permit by enacting, amending, or repealing a local ordinance after a 75-day window from final permit approval (and any required public hearing). The restriction applied uniformly to ordinances enacted by officials and ordinances enacted by citizen initiative.
Q: Why did the AG view LD 1481 as a likely unfunded mandate?
A: Because the bill, read with existing town-meeting law, implicitly required towns to call special meetings on timely citizen petitions if a regular meeting didn't fall within the 75-day window. Special meetings cost money. Forcing local revenue spending on activities towns weren't otherwise required to do triggers Article IX, § 21.
Q: What's the practical consequence of treating LD 1481 as a mandate?
A: Either (a) the State funds 90% of the cost, (b) the bill is enacted by 2/3 vote of each chamber as an exception, or (c) towns can refuse to comply under 30-A M.R.S.A. § 5685(4), forcing litigation.
Q: Could a town delay a vote on a citizen petition past 75 days under LD 1481?
A: According to the AG, no. The AG read the bill plus existing law to require a vote within 75 days on any timely valid petition seeking to nullify or amend a permit. Allowing delay would deny citizens their statutory right and run afoul of LaFleur v. Frost by analogy.
Q: How could the Legislature have avoided the mandate problem?
A: The AG suggested making the 75-day deadline apply only to filing the petition, not to holding the vote. That would let selectmen schedule the vote at a regular or special meeting under existing rules, removing the mandate implication.
Q: What did Town of Wells v. Town of Ogunquit hold?
A: That a school-district funding formula change wasn't an unfunded mandate because it didn't require Wells to do anything new: it just changed who paid for current activities. The AG distinguished Wells because LD 1481 would force some towns to engage in a new activity (calling special meetings).
Q: What's the role of a notary public in calling a Maine town meeting?
A: Under 30-A M.R.S.A. § 2521(4), if selectmen "unreasonably refuse" to call a town meeting, a notary can call one on the written petition of voters equal to at least 10% of the votes in the last gubernatorial election (minimum 10 voters). This procedure dates to colonial-era Maine town governance.
Citations and references
Constitutional provisions:
- Maine Constitution, Article IX, § 21 (state mandates)
- Maine Constitution, Article IV, Part 3, § 21 (municipal initiative)
Statutes:
- 30-A M.R.S.A. § 3007, sub-§ 6 (proposed 75-day deadline)
- 30-A M.R.S.A. § 5685 (mandate implementation; § 5685(4) local unit not bound)
- 30-A M.R.S.A. § 2521(4); § 2522; § 2523; § 2528; § 2529 (town meeting and citizen petition procedures)
- 21-A M.R.S.A. § 752 (absentee ballots)
Cases:
- Town of Wells v. Town of Ogunquit, 2001 ME 122, 775 A.2d 1174, only Law Court case construing Article IX, § 21
- LaFleur v. Frost, 146 Me. 270, 80 A.2d 407 (1951), foundational citizen-initiative case
- Jones v. Inhabitants of Sanford, 66 Me. 585 (1877), town meeting calling
- Southard v. Inhabitants of Bradford, 53 Me. 389 (1866); Allen v. Hackett, 123 Me. 106 (1923); Googins v. Gilpatrick, 131 Me. 23 (1932), "unreasonable refusal" standard
Related AG opinions:
- Op. Me. Att'y Gen. June 10, 2005 (LD 1481 v.1 constitutional defect)
- Op. Me. Att'y Gen. January 17, 2006 (Committee Amendment cured constitutional defect)
Source
- Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
- Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2006/ag_20060513.pdf
Original opinion text
MAINE STATE LEGISLATURE
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06-5
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G. STEVEN ROWE
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May 13, 2006
Honorable Philip L. Bartlett, II
Maine Senate
3 State House Station
Augusta, ME 04333-0003
Honorable Sean Faircloth
Maine House of Representatives
2 State House Station
Augusta, ME 04333-0002
RE: L.D. 1481
Dear Senator Bartlett and Representative Faircloth:
By correspondence from Representative Faircloth dated April 28, 2006, you have
asked two questions concerning L.D. 1481, as amended by Committee Amendment "C"
(S-437) as amended by Senate Amendment "C" (S-554), a copy of which is attached
(Attachment 1). The bill as amended would prohibit a municipality from nullifying or
amending a land use permit by subsequent enactment, amendment or repeal of a local
ordinance after a period of 7 5 days has passed after I) the permit received its lawful final
approval and 2) any required public hearing was held on the permit.
Your questions can be summarized as follows:
1) Does the 75-day limit require a municipality to schedule a special meeting
for a vote on a citizen petition to arriend or nullify a land use permit and, if so, does that
constitute a mandate on the municipality within the meaning of Article IX, section 21, of
the Maine Constitution?
1
PRINTED ON RECYCLED PAPER
2) If L.D. 1481 1 permits a municipality to delay a vote on such a citizen
petition beyond the 7 5-day limit, would that delay deprive citizens of a true right of
initiative and referendum under the rule of LaFleur v. Frost, 146 Me. 270, 80 A.2d 407
(1951)?
In preparing an opinion, our goal is to provide the most objective analysis
possible of how we believe a court would decide the issues presented. In this instance,
we are hampered by both a lack of case law addressing the issues, as· well as a lack of
detailed knowledge of municipal law and its practical application.2 Within these
limitations, we offer the following conclusions.
1) We believe it is likely that a court would conclude that, when considered
within the existing statutory framework, the 75-day limit in L.D. 1481 implicitly requires
towns to schedule a special meeting to vote on a timely citizen petition for an ordinance
change to amend or nullify a land use permit, if a regular meeting is not already set to
occur within those 75 days. It is less clear whether a court would find that this
requirement results in a modification of town activities necessitating additional spending
of local revenues so as to constitute a mandate within the meaning of Article IX, section
21. On balance, however, we believe it is more likely than not that a court would
conclude that, because L.D. 1481 would compel municipalities to schedule special
meetings in some cases, it results in a mandate.·
2) As noted in answer to Question 1, we believe that a comi would conclude
that L.D. 1481 does not permit a town to delay a vote on a timely citizen petition for an
ordinance change to amend or nullify a land use permit beyond 7 5 days from final permit
approval. To allow such a delay and thereby deny a town vote on an ordinance within the
scope of L.D. 1481 would be inconsistent with the statutory right to petition for an
ordinance change.
I. Applicable Constitutional and Statutory Provisions
Maine's Constitution was amended effective November 23, 1992 by adding
A1iicle IX, section 21 (hereafter "Article IX, section 21 "), which provides· as follows:
Section 21. State mandates. For the purpose of more fairly apportioning
the cost of government and providing local property tax relief, the State
may not require a local unit of government to expand or modify that unit's
activities so as to necessitate additional expenditures from local revenues
unless the State provides annually 90% of the funding for these
1
References to "L.D. 1481" are to the bill in its amended fonn, Senate Amendment "C" to Committee
Amendment "C," attached hereto as Attachment 1.
2
We note at the outset that the Office of the Attorney General does not typically advise municipalities.
Our analysis is based on a review of the applicable statutes and case law without the practical expertise in
application of the law in question that we typically have when issuing an opinion. For this reason, we have
given careful consideration to arguments made by those with municipal law expertise both supp01ting and
opposing the conclusion that L.D. 1481 constitutes a mandate.
2
expenditures from State funds not previously appropriated to that local
unit of govermnent. Legislation implementing this section or requiring a
specific expenditure as an exception to this requirement may be enacted
upon the vote of 2/3 of all members elected to each House. This section
must be liberally construed.
Consistent with the authorization contained in Article 21, section 21, in 1993 the
Legislature enacted implementing legislation, 30-A M.R.S.A. § 5685. This statute
contains definitions of key terms, and spells out how funding of mandate obligations may
be provided to local units of government. In addition, section 5685(4) provides:
4. Local units of government not bound. A local unit of government is
not bound by any mandate unless funded or exempted :from state funding
in accordance with this section and the Constitution of Maine, Article IX,
Section 21.
We consider these provisions in light of state laws that allow for citizen petitions.
For municipalities with a town meeting form of government, citizens can bring a matter
to a vote pursuant to 30-A M.R.S.A. § 2522, which provides:
§ 2522. Petition for article in warrant. On the written petition of a
number of voters equal to at least 10% of the number of votes cast in the _
town at the last gubernatorial election, but in no case less than 10, the·
municipal officers shall either insert a particular article in the next warrant
issued or shall within 60 days call a special town meeting for its
consideration.
Under ce1iain circumstances, 30-A M.R.S.A. § 2521 (4) permits a notary public to
call a town meeting to vote on a matter:
4. Petition by voters, if selectmen refuse. If the selectmen unreasonably
refuse to call a town meeting, a notary public may call the meeting on the
written petition of a number of voters equal to at least 10% of the number
of votes cast in the town at the last gubernatorial election, but in no case
less than 10.
In addition, the municipal officers may order that a matter be placed on the
next ballot printed or a special meeting called to consider it. 30-A M.R.S,A. §
2528(5).
II. Whether L.D. 1481 Creates a Mandate Within the Meaning of Section 21
Your first question is whether the 7 5-day limitation on a town.' s ability ~o amend
or nullify a land use permit in L.D. 1481 requires the town selectmen to schedule a
special town meeting on any citizen petition to amend or nullify such a land use permit,
and thus causes the town to expand or modify its activities in a manner that necessitates
3
r
the expenditure of local revenue within the meaning of Article IX, section 21. To
analyze this question, we must determine: 1) what current law requires with regard to
citizen petitions; 2) whether the terms of L.D. 1481 change that process; and 3) whether
any change required by L.D. 1481 constitutes a mandate. We begin with a review of
current municipal law.
A. Current law governing town meetings to address citizen petitions
In municipalities with a town meeting form of government, a citizen can put a
matter before the voters under section 2522 3 on a written petition signed by voters who
number at least 10% of the votes cast in the town at the last gubernatorial election.
Section 2522 provides that the municipal officers "shall either" inse1i the article in the
next warrant issued, or call a special town meeting within 60 days for its consideration.
This language appears to give the town selectmen the option of waiting for the next
regular town meeting to put the matter before the voters, which may be the town's annual
meeting, rather than scheduling a special town meeting within 60 days of receiving the
petition for purposes of taking the vote.
~
However, if the town selectmen do not schedule a special meeting for
consideration of the matter that is the subject of the petition within 60 days, the
petitioners may be able to force the scheduling of a meeting prior to the next regular town
meeting, using the procedure established by section 2521(4). Section 2521(4) permits a
notmy public to call a town n1eeting on the written petition of a number of voters at least
equal to 10% of the votes in the last gubernatorial election, based on a finding that the
selectmen have unreasonably refused to schedule a meeting. The minimum number of
signatures required for such a petition to a notary public is the same as required under
section 2522 to put a matter before a meeting.
The Law Comi has commented on the purpose of permitting a notary public (or
justice of the peace under the predecessor statute) to call a town meeting:
In fact, the whole theory of a New England town meeting, has been,
that upon all necessary occasions, the inhabitants upon short notice,
could come together. Upon this idea is based the provision (R.S., c. 3,
§ 4) that where the selectmen unreasonably refuse to call a town
meeting, a justice of the peace may call one upon the application of
any ten or more voters.
Jones v. Inhabitants of Sanford, 66 Me. 585, 590 (1877).
We have located only tlu·ee Maine cases that address what it means for the
selectmen to "unreasonably refuse" to schedule a town meeting. Two of these cases held
only that there could not be an um:easonable refusal by the selectmen to hold a meeting
3
Section references are to Title 3 0-A, unless otherwise noted.
4
where none was requested, and that in the absence of an unreasonable refusal, any
meeting called by a justice of the peace (who held this authority under a predecessor
statute) was illegal. Southard v. Inhabitants of Bradford, 53 Me. 3 89 (1866); Allen v.
Hackett, 123 Me. 106, 121 A 906 (1923). In the third case, Googins v. Gilpatrick, 131
Me. 23, 158 A 699 (1932), the Law Court held that when a vacancy in the office of town
treasurer had been filled by appointment of the selectmen prior to the filing of a petition
to call a special town meeting to elect a treasurer, the selectmen did not unreasonably
refuse to schedule a meeting, and that consequently a special meeting scheduled by a
notary was ineffective to elect a treasurer. Because the selectmen had the statutory
authority to appoint a treasurer to serve until the next annual town meeting, "[r]eason
would not justify the expenditure required to summon the inhabitants to vote when their
action would effect nothing." 131 Me. at 27, 15 8 A at 701.
The cases construing the "umeasonable refusal" standard for the calling a of
special meeting by a notaiy public shed little light on the question of when, under current
law, a notary public can call a special town meeting based on an unreasonable refusal by
the town's selectmen to do so. These cases are very fact specific, and do not provide any
direct precedent on this point. However, we think it likely that a court would find that
current law gives the selectmen considerable discretion in deciding whether to schedule a
special meeting.
B. The terms of L.D. 1481
We turn now to a discussion of the terms of L.D. 1481. L.D. 1481 in its original
form proposed certain requirements for citizen initiated ordinances or bylaws, while
providing that such citizen initiatives did not apply to structures and uses for which
building permits, zoning permits, subdivision approval, site plan approval or any other
land use approval had been granted. This Office issued an opinion dated June 10, 2005
(Attachment 2) stating that L.D. 1481 and Committee Amendment "A" (S-242), which
contained substantially similar provisions, were likely in violation of the Constitution,
A1iicle IV, part 3, section 21. In sum, that opinion concludes that section 21 authorizes
· the Legislature to provide a "uniform method for the exercise of the initiative and
referendum in municipal affairs" but reserves for municipalities the power to enact
substantive limitations on the exercise of the initiative or to. forego it altogether.
The bill was subsequently reworked and rep01ied out of the Joint Standing
Committee on State and Local Government as Committee Amendment "C" (S-437).
Committee Amendment "C" addressed the constitutional issue that had been identified
with respect to both the bill as printed and Committee Amendment "A." 4 Committee
Amendment "C" prohibited municipalities from nullifying or amending a municipal land
use pennit by 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. Senate
4
A January 17, 2006 opinion of the Attorney General (Attachment 3) concluded that the changes to the bill
made by Committee Amendment "C" eliminated the constitutional issue identified in the June 10, 2005
opinion, relating to Article IV, pait 3, section 21.
5
Amendment "C" (S-554) to Committee Amendment "C" made several additional
changes, so that the key provision in the bill for purposes of our analysis now reads:
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 a period of
75 days has passed after:
A. The permit has received its lawful final approval; and
B. If required, a public hearing was held on the permit.
The summary pmtions of the two pertinent amendments read together clearly
capture the legal effect of the bill in its present form. The Summary to Committee
Amendment "C" notes that the amendment replaces the bill and further states: "It
restricts a municipality's ability to nullify or amend a municipal land use permit by a
subsequent enactment, amendment or repeal of a local ordinance." The Summary to
Senate Amendment "C" to Committee Amendment ''.C" states: "This amendment
extends the period within which a municipality may nullify or amend a land use permit to
75 days." In shmt, the bill creates a bright line deadline after which a permit cannot be
changed or nullified by an ordinance that is subsequently enacted, amended or repealed.
Such a deadline does not now exist; rather, the question of when a municipality may no
longer alter or nullify a permit depends currently on a complex analysis of whe11 a permit
holder's rights under a permit become vested.
L.D. 1481 does not specify any interim time limits or special procedures for
considering ordinance changes affecting municipal land use permits, other than to state
that such changes may not be enacted after this 75-day period. Accordingly, existing
statutory requirements for giving notice of a public meeting or hearing(§§ 2523 & 2528)
and for making absentee ballots available 30 days prior to an election(§ 2529 and 21-A
M.R.S.A. § 752) would still apply. The bill also does not contain any provision that
would toll the running of the 7 5-day period based on the taking of some preliminary step
such as the filing of a citizens' petition or issuing the warrant for the town meeting.
Finally, although not stated clearly in the bill, it appears that if a project requires the
issuance of more than one permit, the 75-day limitation period would start anew with
respect to each permit that is issued and falls within the meaning of "land use permit" in
the bill. 5 .
C. ·whether L.D. 1481 Contains a Mandate on Local Government
For purposes of determining whether a mandate on local government would be
imposed under A1ticle IX, section 21, the relevant language of the constitutional
5
The pertinent language in L.D. 1481 states: "For the purposes of this subsection, 'municipal land use
pe1mit' includes a municipal building permit, zoning permit, subdiv.ision approval and site plan approval."
6
provision is: "The State may not require a local unit of government to expand or modify
that unit's activities so as to necessitate additional expenditures from local revenues ... "
This is a two part test: first, the State must require the local unit to expand or modify its
activities; secondly, that expansion or modification of activities must require the
additional expenditure of local revenue. Before we apply this test, we must first
determine whether L.D. 1481 would require towns to hold special meetings in cases in
which they are not legally required to do now.
1. Does L.D. 1481 require local govenµnent to hold special
meetings?
L.D. 1481 does not expressly provide that a town meeting to vote on a proposed
ordinance change must be held within 75 days after the land use permit to be affected by
the ordinance change has been finally approved. It does, however, state that the
municipality "may not nullify or amend a municipal land use permit by a subsequent
e1iactment, amendment or repeal of a local ordinance after a period of 7 5 days has
passed," and the only way that a local ordinance may be enacted, amended or repealed in
a municipality with a town meeting form of government is by majority vote of the
citizens at a town meeting. For this reason, we believe a court would find that the bill
implicitly requires that a special town meeting be held within the 75-day period if a valid
citizen petition is filed, unless (a) a regular town meeting is already scheduled during that
time frame, (b) the ordinance change sought is not within the town's authority to enact or
repeal or is outside the scope of L.D. 1481, or (c) the petition is filed so late in the 7 5-day
period as to preclude compliance with other statutory requirements, such as those
providing for public notice (§ 2523), public hearing(§ 2528), and absentee balloting(§
' 6
2529, 21-A M.R.S.A. § 752).
Indeed, if all the requirements for a valid petition are met under L.D. 1481, and
the selectmen refuse to schedule a special meeting to vote on the proposed ordinance
change, we think a court would likely find the selectmen's refusal to be umeasonable and
would uphold a decision by a notary public to schedule the town meeting pursuant to
§2521 (4). Regardless of whether the meeting is ultimately scheduled by the selectmen or
by a notary public, it is our view that the requirement for a special town meeting would
be triggered by the timely filing of a valid petition for an ordinance change under L.D.
1481, unless the regular town meeting was already scheduled to occur within the 75-day
period. 7
6
Some other circumstances might arise that could support the selectmen' s refusal to schedule a town
meeting, but these seem to be the most obvious ones that a court would likely find legitimate.
7
In cities with a city council form of government that.have adopted ordinances providing for local initiative
and referendum, a similar result could occur, i.e., the council's latitude to schedule a vote to coincide with a
gene_ral election or primary might be constricted if the vote must take piace within the 75-day window. It
has also been argued that the 75-day limitation period in L.D. 1481 creates a mandate for a number of
municipalities with city councils on an additional ground: that it will require them to amend their
ordinances concerning citizen initiative and referenda because the existing time periods for the taking of
various actions in that process exceed 75 days, and that there is cost involved in amending ordinances. The
logical consequence of such an argument is that the State could be required to bear this cost each time a
7
2. Does the requirement to hold a special town meeting under these
circumstances meet the two-part test for determining whether a
mandate exists?
We have found only one case in which the Law Court has construed Article IX,
section21, and it provides little guidance as to what constitutes an expansion or
modification of local government activities. In Town of Wells v. Tmvn of Ogunquit, 2001
ME 122, 775 A.2d 1174, the Town of Wells challenged a private and special act of the
Legislature that changed the funding formula for the Wells-Ogunquit school district from
a state property valuation basis to one under which only a portion of the towns'
respective school funding obligations was based on prope1iy valuation, with the
remainder based on the number of students. The result was a substantial shift in the
relative funding obligations to the Town of Wells, which challenged the law as an
unfunded mandate under section 21.
The Law Corni held that the law did not result in an unfunded mandate, reasoning
as follows:
The State has not required Wells to expand or modify its activities. It
is not being required to build a new transpmiation system or provide
computers to all of its residents. It is not being required to expand or
modify the educational program of the school district. It does not have
to hire more teachers or provide new courses. Presumably such
requirements would be expansions that would necessitate the town to
expend .additional revenues. [P9] The harsh reality is that Wells'
po1iion of the funding formula has been increased, and Wells will have
to spend more money if the school budget remains as is. The reality
also is that Wells controls the votes on the board of the school district.
P. & S.L. 1985, ch. 93. Wells, not the State, controls the expenditures
of the school district.
[P 1OJ The State has not required Wells to raise taxes, and the State
has not required Wells to expand or modify its activities. The revised
funding formula for the school district does not violate section 21 of
Article IX of the Maine Constitution.
Id. ~8-10, 775 A.2d at 1176-1177.
The Law Corni' s decision in: Tmvn of vVells v. Tmvn of Ogunquit can be read as
taking a fairly narrow view of what constitutes an expanded or modified activity, and
could be relied upon in this instance as supporting a conclusion that L.D. 1481 does not
itself require local units to engage in any activities that they are not already can-ying out.
It can be argued that L.D. 1481 does not expressly require that a special meeting be
municipality must amend its ordinances to conform to newly enacted statutes. There is nothing in the
legislative history of Article IX, section 21 to suggest that it was intended to be read so broadly that it
would encompass this latter argument.
8
called; that the procedures governing the scheduling of a town meeting by town
selectmen or by a notary public are matters of existing law; and that holding special town
meetings is not a new activity in itself, nor is dealing with citizen petitions to place
proposals on a town meeting warrant. Moreover, the effect of the bill will not always
require a special election; whether a special election will be necessary will depend upon
the timing of final approval of the land use permit and whether the regularly scheduled
town meeting will or will not occur within 75 days thereafter.
In supp01i of the conclusion that L.D. 1481 results in a mandate, it can be argued
that while town officials have broad discretion under current law to delay until the next
regularly scheduled town meeting a vote on a matter that has been raised by citizen
petition, 8 the 75-day limitation period requires them to schedule a special meeting (unless
the regular meeting is going to occur within the 75-day period) in response.to a timely
petition within the scope of L.D. 1481 if the petitioners are to be given an effective
opportunity to amend or nullify a land use permit. 9 Moreover, the Tmvn of Wells v. Town
of Ogunquit decision can readily be distinguished, in that the Court's conclusion in that
case was based on its determination that the legislative act under review there did not
require the Town of Wells to undertake different activities, but simply to pay more of the
cost for its cmrent activities. On balance, we believe that it is more likely than not that a
comi would conclude that L.D. 1481 would require towns to modify their activities in at
least some cases where citizen petitions within its scope are submitted.
If the first pmi of the mandate test i's satisfied, there is little question that the ·
second part is also met. Since special elections cost money, the requirement to hold a
special election, even though implicit rather than explicit if L.D. 1481 were enacted,
necessitates the expenditure of local revenues that would not otherwise be expended for
that purpose. Although circumstances might arise in which a town would be submitting
another proposal to a special town meeting within the same time frame as a land use
ordinance petition under L.D. 1481, and could thereby avoid incurring any extra costs for
that election, such will not necessarily be the case. Given the limited time period allowed
for a vote to enact, repeal or amend a land use ordinance under L.D. 1481, it is unlikely
that the extra cost of holding a special town meeting could be avoided. Thus, a comi
would likely find this part of the mandate test is met by L.D. 1481.
If the Legislature should decline to treat the bill as a mandate, a municipality may
choose to exercise i~s rights under § 5685(4), which provides that a municipality is not
bound by any mandate unless it is funded or exempted frcim funding in accordance with
section 21 and its implementing legislation, section 5685. Accordingly, a town could
refuse to comply, and litigation would likely ensue to determine whether the provisions
of the bill are enforceable.
8
Indeed, it has been suggested by some municipal law practitioners who have submitted comments to our
Office in response to your request for this opinion, that the "unreasonable refusal" standard in section
2521 ( 4) imposes little if any practical constraint on the exercise of discretion by selectmen in deciding
when to hold a town meeting vote on a citizen petition.
9
As noted above (see discussion on p. 7), the town's selectmen would not be deprived of all discretion with
respect to the scheduling ofa town meeting ifL.D. 1481 is enacted.
9
Because application of the first part of the mandate test is uncertain, we cannot
say that it would be indefensible for the Legislature to treat L.D. 1481 as not containing a
mandate and enact it without the mandate preamble or a two-thirds vote. However, as we
have stated, we believe that it is more likely than not that a comi would conclude that
L.D. 1481 creates a mandate within the meaning of Article IX, section 21. Alternatively,
the bill could be amended in a way that eliminates the need to hold a special town
meeting within the 7 5 day limitation period, and thus avoids or substantially reduces the
risk of the bill being considered a mandate. 10
III. Whether L.D. 1481 Impinges on a Citizen's Right to Local Initiative and
Referendum
Your second question is whether L.D. 1481 deprives citizens of a true right of
initiative and referendum by purporting to grant them the right to petition while allowing
the town to delay the vote on their petition until after the 75-day deadline. Maine's
· Constitution does not guarantee its citizens a right of initiative and referendum at the
local level of government. Article IV, part 3, section 21 provides that the city council of
any city may establish the direct initiative and people's veto for its electors in regard to
municipal affairs, but this section, by its terms, provides an option rather than a
guarantee. As discussed above, voters in a town with a town meeting form of
government have certain statutory rights to put issues on the ballot for decision at a town
meeting, but those rights are not constitutionally guaranteed.
This does not mean that municipalities have unfettered latitude with respect to
voter initiatives, as demonstrated by the case you referenced in connection with this
question, LaFleur v. Frost, 146 Me. 270, 80 A.2d 407 (1951). In that case, the Law
Court held that those portions of a city's initiative and referendum ordinance that
reserved to a committee of ten original petitioners the right to withdraw a petition after it
had been submitted and to place a brief explanatory statement on the ballot were invalid.
The Court's reasoning in reaching this conclusion is as follows:
A system which compels the voter to leave his great rights to legislate,
either directly through the initiative or by the people's veto in a
referendum, to the mercy of six out of ten individuals may provide a
neat and orderly method for the conduct of business, but it cannot be
called the initiative and referendum.
There is no justification for saying the first-ten signers are the most
interested citizens or that the citizen, who later signs or indeed who
does not sign at all, has not exactly the same interest in the proposal as
the original ten. Must the 1490 or more signers (let alone the
remainder of the voters) rely upon the judgment of six whom they did
not select, whom they may oi" may not know, and in whom they may
or may not have confidence?
10
For example, if the 75-day deadline ,vere made to apply only to the submission of a petition, that would
leave municipal officers the latitude they have under cun-ent law to schedule consideration of the matter at
a regular or special town meeting.
10
It may well be that conditions may arise under which no one wishes
the measure submitted to a vote. The election expense in such event
will be wasted for the outcome is cetiain. What manner of provision
for withdrawal of the proposal may be reasonably made, we need not
determine. It is sufficient for our purposes that the initiative and
referendum does not contemplate that the citizen be required to accept
the judgment of six of the original ten petitioners, as his agents, in the
exercise of the right of initiative and referendum.
146 Me. at 286-287, 80 A.2d at 415-416.
In essence, the Comi concluded that the term "initiative" as used in the
Constitution had a ce1iain basic meaning that the city could not alter by ordinance. At the
same time, the Court recognized that the city was not obligated to provide an initiative
procedure, or to extend its applicability to all municipal affairs. See 146 Me. at 282-283,
80 A.2d at 413-414.
Although LaFleur is not directly on point, it is somewhat analogous to the issue
presented by L.D. 1481. Title 30-A creates a statutory right for citizens to submit a
proposed ordinance to a town meeting vote if they gather the requisite number of voters'
signatures on petitions and meet all the relevant statutory requirements. See§§ 2522 &
2528 . Under current law, an ordinance change proposed by a valid citizen petition is
presented to the town for a vote at either a regular or special town meeting. If, as your
second question assumes, L.D. 1481 were interpreted to allow the municipal officers to
decline to hold a special town meeting to vote on a land use ordinance change proposed
by a timely petition, then the citizens' ability to exercise their statutory rights would be
subject to the discretion of those municipal officers. Just as the Comi in LaFleur did not
accept that the first ten petition signers should have authority on their own to withdraw a
citizens' petition before a vote, so might a court have difficulty concluding that the
municipal officers have discretion to decline to hold a special town meeting to vote on a
valid and timely citizen-initiated land use ordinance change within the 75-day period
called for in L.D. 1481. Allowing municipal officers to exercise such discretion a11d
effectively deny a vote would seem inconsistent with the statutory right to petition for an
ordinance ·change'. 11 '
Indeed, it is for this reason, in addition to the reasons noted in our answer to your
first question, that we believe a comi would not interpret L.D. 1481 to permit towns to
delay a vote on a land use ordinance change beyond 75 days from final permit approval.
Instead, we believe a comt would most likely conclude that L.D. 1481, when interpreted
in light of the existing statutory framework for citizen petitions, implicitly requires towns
to hold a special town meeting on any ordinance change affecting a land use permit
within the 75-day period - either by action of the selectmen or by a notary public acting
upon their refusal to do so.
11
Of course, such a case may not reach the courts because, unlike the situation in LaFleur, if the municipal
officers act unreasonably to deny such a vote, then a notary public can schedule the town meeting in their
stead.
11
Conclusion
For the reasons we· have discussed, we believe that it is likely that a court would
interpret L.D. 1481 to require a town to hold a special meeting within the 7 5-day period
of limitation if it receives a timely citizen petition proposing a change to an ordinance
that amends or nullifies a finally approved land use permit. It is less clear whether L.D.
1481 constitutes a mandate under A1iicle IX, section 21, though we believe it more likely
than not that a court would so conclude.
Although we regret that the scarcity of relevant case law affects our ability to
offer you conclusions on these issues with a higher degree of certainty, we hope this
analysis is useful in your deliberations concerning L.D. 1481.
6.
G. STEVEN ROWE
Attorney General
12
Attachment 1
STATE OF MAINE
IN THE YEAR OF OUR LORD
TWO THOUSAND AND SIX
S.P. 507 - L~D. 1481
An Act To Amend the Laws Governing the Enactment P.tocedures
for Ordinances ·
Be it enacted by the People of the State of Maine as follows:
Sec. l. 30-A MRSA §3007, sub-§6 is enacted to read:
E: Restriction on nullification of final permit. A
municipality may not nullify or amenq ia municival land us~ permit
by a suosequent enactm~nt, ?mendment or &epeal of a 1oc5ll
ordin?11ge after a PetiQd of 75 days has passed after:
A. The oer:mit_nas rece;iyed its law:ful final a'R,proval: and
B. If required, a public hearing was beld on the permit.
for the purposes of th,is subsection, "m:i.wicipal 12nd use permit"
inclvdes a municipal building p~;c.mi t, zoning -permit, subdivision
approval and site plan approval, This ~ubsection ooes not alttl
or invalidai;E;! any :provisiQn of · a municipal ordinance that
p;r;ovides for the expiration or lerwe of a 1?12trnit or ,;1gprova1
g_ranted pursuant to . th!;lt permit following the · expiration of c1
certain R,e.riod of time.
1-1981(14)
TOTRL P.01
AttachmentREGTONAL
'J
OFFICES:
84 HARLOW ST., 2ND FLOOR
BANGOR, MAINE 04401
TEL: (207) 941-3070
G. STEVEN ROWE FAX: (207) 941-3075
ATTORNEY GENERAL
44 OAK STREET, 4TH FLOOR
PORTLAND, MAINE 04101-3014
TEL: (207) 822-0260
FAX: (207) 822-0259
TDD: (877) 428-8800
Telephone: (207) 626-BBCXJ . STATE OF MAINE
TDD: (207) 626-8865 OFF1CE OF THE A TIORNEY GENERAL 128 SWEDEN ST., STE. 2
CARIBOU, MAINE 04736
6 STATE HOUSE STATION TEL: (207) 496-3792
AUGUSTA, MAINE 04333-0006 FAX: (207) 496-3291
June 10, 2005
Senator Peggy Rotundo
Maine State Senate
3 State House Station ·
Augusta, Maine 04333-1515
RE: L.D. 1481
Dear Senator Rotundo:
By letter dated June 1, 2005, you have asked for an opinion concerning the
constitutionality of L.D. 1481, An Act to Amelid the Laws Governing the Enactment
Procedures for Ordinances, and the proposed committee amendment to the bill. Both the
bill in its original form and as amended by Committee Amendment "A" (S-242) set forth
requirements for citizen initiated ordinances or bylaws, and both limit the application of
such initiatives to certaiq. projects: those that have received municipal land use permits or
approvals prior to the date on which the initiative petition is filed. 1
·while we understand the forceful arguments favoring and opposing limitations of
this kind, we express no opinion on those policy arguments. Rather, our purpose is
simply to offer an opinion as to how the Maine Law Court would likely decide the legal
issues presented. As a legal matter, we believe that the Maine Constitution reserves for
municipalities the power to enact such limitations orto forgo altogether the municipal
citizen initiative. The Legislature may provide a "unifonn method''. for the exercise of
municipal initiatives, but we believe that the Court would likely find that the portion of
1
For simplicity, we have focused in this opinion on the text of the Committee Amendment "A" to L.D.
1481. The original bill presents the same issues, but in a slightly different form.
Printed on Recycled Paper
2
L.D. 1481 that limits the content or applicability of municipal ordinances adopted by
citizen initiative or referendum violates Article IV, Part 3, § 21 of the Maine
Constitution.
Article IV, Paii 3, §21 of the Maine Constitution authorizes city councils to
"establish the direct initiative and people's veto for the electors of such city in regard to
its municipal affairs," provided that any ordinance establishing direct initiative and
people's veto "shall not take effect until ratified by vote of a majority of the electors of
said city, voting thereon at a municipal election," and further provided that "the
Legislature may at any time provide a uniform method for the exercise of the initiative
and referendum in municipal affairs." (Emphasis supplied.) As described by the Law
Court inLaFleur v. Frost, 80 A. 2d 407, 412 (Me. 1951), section 21 constitutes a direct
grant of authority to municipalities that may not be limited by the Legislature except as
provided in the Constitution; See also, Albert v. Town of Fairfield, 597 A.2d 1353, 1354,
fu. l("This power is subject Dnly to the Legislature's authority to 'at any time provide a_
uniform method for the exercise of the initiative and referendlm1 in municipal affairs.'")
Accordingly, our analysis must focus on the scope of the Legislature's authority to
establish a "uniform method" for municipal initiatives and referet\da .
.As your letter notes, this Office addressed the same questions regarding the
constitutionality of L.D. 389, which was pending before the last Legislature, by letter
dated June 3, 2003. L.D. 389, An Act to Amend the Laws Governing Municipal Citizen
Initiatives and Referenda, as amended in committee, would have enacted a new
subsection 5 of title 30-A §3001. Section 3001 is the statute that define·s the general .
scope of a municipality's ordinance power. The key provision in §3001 (5), as proposed
by L.D. 389, stated that any ordinance or bylaw enacted by citizen initiative or
· referendum "may not invalidate, repeal, revoke or modify any building permit, zoning
permit, land use approval, subdivision approval or site plan approval if the final .
municipal approval or issuance of the permit was taken prior to the enactment of that
·ordinance or bylaw." In effect, L.D. 389 would have prohibited the retroactive, or
retrospective, application of citizen-initiated ordinances or bylaws to projects that had
already obtained permits or other land use approvals. Our office concluded in 2003 that
this proposed statutory change constituted a substantive limitation on the municipal
initiative and referendum process and, therefore, would have violated Article N, Part 3,
§21 of the Maine Constitution.
L.D. 1481, as aniended, differs from L.D. 389 in certain respects. It creates a new
section 3002-A of Title 30-A, entitled "Procedures for enactment and amendment oflocal
ordinances by direct initiative." Subsections 1 and 2(A) of the proposed new section
3002-A address the process by which.municipal voters may file petitions, the certification
of signatures by the municipal clerk, and the date on which an initiated ordinance or
ordinance amendment may become effective.2 Our analysis focuses on subsection 2(B),
which provides that ordinances or amendments enacted by direct initiative:
2
_The new sub-section 1 of §3002-A simply provides that any municipality choosing to establish direct
initiative must follow the procedures set forth in this section. Subsection 2 and paragraph 2(A) of §3002-A
provide that the registered voters of any municipality may propose a new ordinance or bylaw or
3
B. May not apply to structures and uses of structures in construction or proposed
for construction for which a municipal building pennit, zoning pennit,
subdivision approval, site plan approval or any other municipal land use approval
was received prior to the date that the municipal clerk certifies that the direct
initiative petition meets the applicable filing requirements, including the requisite
number of registered municipal voters' signatures.
The question prese11ted is whether LD 1481 -- in particular the language of
subsection 2(B) - merely prescribes a "uniform method for the exercise of the initiative
and referendum in municipal affairs," or whether it circumscribes the substance of what
may be done by municipal initiative and referenda. The fom1er is clearly permissible
under the Constitution; however, we believe that the Law Court would likely conclude
that the latter would exceed the scope of the Legislature's authority, as outlined in our
. . .
previous opm1on.
The Law Court has never construed the meaning of "unifonn method" in Article
IV, Part 3, §21 of Maine's Constitution. In interpreting the Constitution, however, courts
look to the plain, ordinary mean1ng of the language used. In re 1983 Legislative
· Apportionment ofHouse, Senate and Congressional Districts, 469 A.2d 819,825 (Me.
1983); see also Rockland Plaza Realty Corp. v. Czty of Rockland, 2001 ME 81,112, 772
A.2d 256, 260 (Me. 2001). ·"Method" is defined in standard dictionaries to mean "a
procedure or process for attaining an object;" "a means or manner of procedure,
especially a regular and systematic way of accomplishing something;'1 3 or''the mode of
operating, or the means. of attaining an object."4 Thus, a "uniform method" might include
provisions that define how an initiative petition may be filed and processed at the
municipal level. Statutory provisions relating to the number of signatures required to get
a measure on the ballot would seem to fit easily within the plain meaning of "method," as
would setting forth a procedure for certification of signatures on petitions by the
municipal clerk. The provisions ofL.D. 1481 enacting subsections 3002-A(1) 1 (2) and
2(A), all appear to describe a method or "means of attaining an object" of direct
initiatives at the local level, and, for this reason, do not raise constitutional concerns.
A time frame for filing citizei1 initiative petitions also could be considered part of
a "method" using the plain meaning of that term, but L.D. 1481 does not set forth a
generally applicable time period for filing petitions. Instead, proposed subsection 3002~
amendment by ,vritten petition, pursuant to 30-A M.R.S.A. §§2522 and 2528 or the municipal charter; that
the municipal clerk shall certify that the required number of signatures ohegister_ed voters in the
municipality were obtained; and that any citizen-initiated municipal ordinance or amendment must become
effective upon majority vote of the voters on the date the vote was taken or as otherwise provided by state
law or municipal charter. L.D. 1481, as amended by Committee Amend. "A" (S-242).
3
The American Heritage Dictionmy of the English Language (4 th Ed. 2000).
4
· Black's Law Dictionmy (6 th Ed. 1990). Compare Vo11Tili11gv. City ofPortland, 268 A.2d 888, 89I(Me.
l 970)(referring to initiative procedure under Art. IV, Pt. 3, § 21 as "machinery").
4
A (2)(B) limits the applicability of ordinances enacted by direct initiative to certain
5
projects. In this respect, L.D. 1481 is not fundamentally different from L.D. 3 89.
Subsection 3002-A(2)(B) may be constrned as a timing provision only in the
sense that in order to have a new or amended ordinance apply to strnctures or proposed
uses, the citizens must file the initiative petition before any permits or municipal land use
approvals are issued for those projects. To the extent that it establishes time limitations,
however, this provision of L.D. 1481 does so only for petitions seeking to enact certain
types of ordinances, namely land use ordinances relating to construction of strnctures.
Moreover, the Law Court has upheld the authority of municipalities, under some
circumstances, to enact ordinances that apply retrospectively to projects that have already
received municipal pennits. E.g., Kitte1y Retail Ventures, LLC v. Tmvn of Kitte1y, 2004
ME 65, 856 A.2d 1183; City of Portland v. Fisherman's. Wha,f Associates II, 541 A.2d
160,164 (Me. 1988). Proposed section 3002-A(2)(B) thus imposes restrictions on citizen-
initiated ordinances that do not apply to ordinances enacted by municipal offi.cials. 6
. Maine's Constitution does not draw the lines oflegislative authority in this area
based on what is "procedural" versus "substantive," but rather on what constitutes a
"uniform method." 7 Even though subsection 3002-A(2)(B) may be chatacte1ized as
procedural, in this· context it actually restricts the substance of citizen initiatives at the
local level by prohibiting the application of any citizen initiated ordinance or bylaw to
proJects that h_ave already received a permit or local land use approval.·
The Law Court has held that under Article N, Part 3, §21, municipalities inay
choose to' restrict the scope of direct initiative and referendum so that it applies to some,
but not all, of their municipal affairs .. LaFleur v. Frost, 80 A.2d 407, 414 (Me.
195l)(upholding city ordinance establishing initiative and referendum only for
ordinances dealing with legislative matters in municipal affairs). Pursuant to that
authority, we presume that individual municipalities could choose to prohibit local
initiatives from applying to land use projects that had already been issued pem1its.
5
L.D. 389 st~ted that citizen-initiated ordinances "may not invalidate, repeal, revoke or modify" any permit
or land use approval that had been issued prior to their enactment. L.D. 1481 states that citizen-initiated
ordinances "may not apply to" ce:t;iain structures or uses of structures that have received a permit or
municipal land use approval prior the filing of the initiative petition. The only real .substantive difference is
that in L.D. 389 the limitation on applicability relates to the date of enactment of an initiated ordinance,
whereas in L.D. 1481 it is the date the initiative petition is filed.
6
As noted in our previous opinion, we believe the Legislature's authority to modify the powers of
municipalities would include the power to prohibit municipalities from enacting retroactive ordinances. It
is only the Legislature's attempt to restrict the citizens' power to enact such ordinances that implicates
Article IV, Pari 3, §21. ·
7
It is for this reason that we do not find particularly helpful the case law regarding distinctions between
procedural and substantive statutes made in the context o{determining what constitutes retroactive
application of a new or amended statute. E.g., Michaud v. Nol'thern Maine Medical Center, 436 A.2d 398
(Me. 1981 )(tort claim notice provision held procedural and therefore could be applied to lawsuit for an
injury that predated its enactment).
5
However, we believe that the Law Court would most likely conclude that decisions to
limit the scope of direct initiative and referendum at the municipal level are ones that
only individual municipalities, and not the Legislature, are empowered to make under
Maine's Constitution.
Sincerely,
h
G. Steven Rowe
Attorney General
Attachment 3
REGIONAL Or-r1c:2.s:
:3.f H.AJZLU\V ST., 2?'-iD FU.JiJR
TEL: (Z07) L)<!l-3070
F,\.'<-: (207) 94i,3075
·+4 ()~·\~,.: ST~,EET, -!-'T~ FLC(~':P,
PORTL\ND, :\L-1t.Il'-iE 04l01~30i-t
TEL: (207) .322-0260 -
?:.\Y· (')(YI.) p:l7.(Y7.7Q
·ro:o: (877) -+ZS-iSsoo
TEL. :.D7) r326-880D
IT( -338-57/-0GSO c:.~s.1:3c)t 1• ~vL.n-•r~ 1.)4736
6 ST.C.TE HOUSE STATION TEl.: (207) -l-96.-3792
.Lq_UGUST/,,~ fvi,.~INE 04333-0006 F.~·(: (20/) 496-329L
January 17, 2006
<enator Elizabeth Schneider, Senate Chair
..Zepresentative Christopher Barstow, House Chair
.cint Standing Cornmittee on State and Local Government
'YJ '3t3-tP !-Ir:i11ccP ~btinn
.\ugusta, ME 04333-0003
Re: Proposed Committee Amendment to LD 1481
uunng tne vvorK session on LlJ 1'-ro 1 nem on January 11, ""on
.,_ • 1 1 • T ....._ 1 An -1 1 1 1 T J 1 1 f
.::, vo, you asKeu 1or an opm1011
1 L' ' '
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 prov1si.ons 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 tnforrnation we do not express an opinion on
matters of policy.
Sincerely,
wa • n
I/
tJ_,,!, v--1_ J7,-L~
G. STEVEN ROWE
Attornev General
GS FU elf
cc: Anna Broome. Legislative Analyst, OPLA