Orlando E. Delogu is a professor emeritus at the University of Maine School of Law. He has been a member of the Portland City Council, served on Maine’s Board of Environmental Protection, and the City of Portland’s Planning Board.

[This is Part three of a three part article dealing with LURC’s Burnt Jacket ruling and the implications of that ruling for future development proposals.]

Part 1 of this article examined so-called “taking” principles and recognized that regulatory statutes and/or implementing agencies such as LURC may, in their zeal, impose controls that are too stringent; they may, as the U.S. Supreme Court noted, go “too far,” in which case they will either have to soften the regulatory framework or compensate the landowner who has been denied regulatory approval. In reading the LURC statute and the agency’s Burnt Jacket ruling, it is at least arguable that both the statute and LURC have, in fact, gone too far. Moreover, LURC’s Burnt Jacket rationale, if applied to the widening range of development proposals that are being put on the table today, does not bode well for any of these undertakings.

Part 2 made clear that if Maine wished to protect and preserve significant portions of the historic and pristine character of the unorganized territory it certainly has the power to do so, but not by misuse of its regulatory powers. Instead, it must use its spending and/or eminent domain powers to acquire the property interests it would acquire and protect for future generations. Part 2 also examined Conclusion 1 of LURC’s Burnt Jacket ruling and laid out the weaknesses in the agency’s reasoning. In a similar vein, the author proceeds to examine Conclusions 2-5 of this critical LURC decision.

Conclusion 2 in the Burnt Jacket decision references Commission standards that impose even more stringent regulations on developments/rezoning proposals that are adjacent to lakes. Paragraph 2A asserts, without reference to any specific data or findings, that Burnt Jacket’s proposal will likely have an undue adverse impact on traditional uses, including without limit public recreation (especially water-borne recreation) on the southern portion of Moosehead Lake. Paragraph 2B declares, “that adequate provision has not been made to maintain the natural character of the unusually pristine, natural and visually prominent shoreland involved in this development rezoning proposal. The terms “undue adverse impact,” “traditional uses,” “adequate provision,” “unusually pristine,” and “maintain the natural character of” are not defined by LURC standards. A developer is left with another impossible burden - he must guess as to the meaning of these vague terms, and how, and to what degree they will factor into the rezoning decision.

Recent Maine case law has found such vague terms constitutionally impermissible, see Wakelin v. Town of Yarmouth, wherein the court noted: “The ordinance fails to articulate the quantitative standards necessary to transform the unmeasured qualities “intensity of use” and “density of development” into specific criteria objectively usable by both the Board and the applicant in gauging the compatibility of a proposed use with existing uses in the surrounding area.”

In a more recent similar case, Kosalka v. Town of Georgetown, the court concluded that the “conserve natural beauty” requirement “is an unconstitutional standardless delegation of legislative authority and therefore a violation of due process.” n short, Conclusion 2 in LURC’s Burnt Jacket decision seems to be a constitutionally unsupportable basis for denying the rezoning request.

Conclusion 3 in Burnt Jacket references each of the major paragraphs in Conclusions 1 and 2 of the decision. In that sense, it seems to add nothing to what has already been described as a “constitutionally impermissible” basis for the Commission’s denial of the requested rezoning. The one additional dimension of Conclusion 3 said to justify denial of Burnt Jacket’s application is the assertion (citing 12 M.RS. § 685-A (8-A)(B)) that: “The petitioner has not demonstrated that the project will not have an undue adverse impact on existing uses or resources . . . . “Two points only will be made; first, the statutory burden and the Commission’s decision again impose an almost impossible burden on the applicant’ - it requires the developer to prove a negative, to demonstrate that something will not happen at some point in the future. How does one do that? What evidence is sufficient? Such burdens/uncertainties violate the applicants’ due process rights.

Second, (as in Conclusion 2) the critical terms “undue” and “adverse impact” are not defined either by statute or regulation. As noted above, Maine’s highest court in Wakelin and Kosalka has found such vague terms to be constitutionally insufficient. In short, Conclusion 3 does not offer a constitutionally sustainable basis for denial of the rezoning application.

Conclusion 4 in Burnt Jacket is both conjectural, and beyond the decision-making prerogative of the Commission. Even with the information provided by consultants for the Intervenors (whose views are hardly unbiased) it is not possible for the Commission to know, with the certainty expressed in Conclusion 4, that within Burnt Jacket’s adjacent land holdings “there are far more appropriate areas suitable for residential development . . . These hypothetical alternative sites have not been subject to detailed examination and scrutiny” - not by Burnt Jacket or by the Commission.

Moreover, the rezoning and development of these undefined alternative sites is not presently before the Commission in any way, shape, or form. There is only one application before the Commission; it encompasses a defined 246 acres; it alone has been thoroughly vetted by the applicant and his experts, the Commission and its staff, the public, and Intervenors. The only permissible task before the Commission is to grant or deny this rezoning application and the development proposed on a constitutionally permissible basis.

Conclusions 1, 2, and 3 (as noted above) do not provide such a basis. Conclusion 4 is even farther afield - it violates due process by accepting as truth what is little more than vague conjecture, and it involves the Commission in what can only be considered ultra vires conduct, i.e., speculating with respect to a hypothetical rezoning application that is not before the Commission.

Conclusion 5 in Burnt Jacket is a pure make-weight, but at the same time this conclusion reflects yet another constitutional misconception. The make- weight aspect is that beyond the points raised in Conclusions 1, 2, 3, and 4, there are “other bases for denial.” Though unspecified, they are said to exist and by simply saying so, LURC asserts a fifth justification for denying the rezoning request. This is inappropriate. Due process and the rule of law in all jurisdictions is that the reasons (all of them) for denial of a requested governmental action must be stated; if they are not stated, they are deemed not to exist.

The constitutional misconception buried in Conclusion 5 is embodied in the sentence: “Petitioner purchased this land with a full understanding of its current zoning and its restrictions on development.” True enough, but what is suggested is that somehow this fact limits or bars Burnt Jacket’s right to challenge the underlying pattern of zoning and/or to seek a rezoning. Not so. Recent U. S. Supreme Court case law, Palazzolo v. Rhode Island, makes dear that a petitioner’s acquisition of title after the effective date of a regulation does not bar a “takings” claim. The court went on to note that: “Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.” So once again, Conclusion 5 offers no sustainable basis for the denial of Burnt Jacket’s rezoning request.

Conclusion

LURC’s Burnt Jacket decision is a singularly revealing case. It exposes the hidden agenda of the LURC statute, and the Commission’s implementing plans, standards, and policies. The focus is not on regulating proposed new development to assure that the widest range of health, safety, and general welfare factors are considered and dealt with.

The real LURC agenda is to preserve to the fullest extent possible the historic status quo, commercial forests, pristine lake and river systems, 10.4 million acres of open space. This is accomplished by zoning less than 1% of the private land area subject to LURC jurisdiction for development, and by constraining the process of rezoning land for an expanding array of modern development purposes by a Byzantine mix of statutory and regulatory burdens, standards, plans, and policies that are individually, and in the aggregate, almost impossible to meet.

In this writer’s view, this constitutes an over- regulation of this land, an abuse of police power, a taking of the landowner’s property right. If Maine wishes to preserve some or all of this vast area of relatively undeveloped land, the US. Supreme Court has said it may do so. But it must use its spending power to acquire those property interests it would protect and preserve for future generations - it cannot steal these interests by overzealous regulation.