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Maine Land Conservation Conference
Subdivision set asides: Conservation opportunity or trap?
View of Municipal Conservation Commission
1. Development Review Process
Subdivision Review is governed by State law (30-A MRSA § 4401 et seq.), which can be supplemented by municipal ordinance. This review examines divisions of land, not development, but it considers the impact by the future use of the land. The review criteria generally address environmental, traffic and scenic issues (see attached). The statute does not require land conservation, but a planning board may require buffers for natural resource or scenic protection.
An ordinance can require setting aside of open space or conservation land. The amount of conserved land can be left to the discretion of the planning board or controlled by a formula. See example attached.
Site Plan Review is not required by state law, but it can be established by ordinance. This review looks at construction on the site to minimize impacts to surrounding environment, neighbors and the public. Typically covers commercial/industrial developments that do not require subdivision review.
Conservation Commission is authorized to conserve land for the benefit of the public. Some municipalities have a charter or ordinance provision that governs the duties and membership of the commission. Otherwise, there is a statute that defines the commission duties and membership. see 30-A MRSA § 3261 attached.
2. Municipal v. Land Trust roles
People have different preferences in conservation organizations. Some people are more comfortable working with the municipality, while others have more confidence that a land trust will carry out the desired conservation.
Municipal strengths:
- Official role in the regulatory process – municipal policies, programs and ordinances to conserve land. Review development proposals to encourage or require land conservation.
- organizational stamina and resources – municipalities will likely continue to exist and have resources to enforce conservation, if they choose to do so.
- Public control – personal agendas are less likely to drive outcomes
Land Trust strengths:
- Independence – less political than municipality.
- Committed to the cause – group of like-minded people organized for a specific purpose.
- Focused resources – no competition for resources to be used otherwise; can move more quickly than municipality.
3. Protecting Public Values in Land
Public body or land trust needs to specifically identify the public interests in property and coordinate them with the land owner’s values:
- Natural resource protection
- Historical and archeological sites
- Scenic values
- Agriculture
- Forestry
- Public access and recreation
4. Legal Options for Land Conservation in Development Review
- Zoning and performance standards – general natural resource protection; ordinances are subject to change. Enforced by the municipality
- Permit requirements – specific requirements for open space or buffers. Permit runs with the land and enforced by the municipality.
- Deed covenant – permanent limits on use of land. Enforced by the grantor or neighbors (homeowner association).
- Easement – permanent limit on uses of land or allow others to use land. Enforced by the holder of the easement (land trust; municipality).
- Ownership – control all use of the land; liability and tax concerns. Title may held by municipality or land trust
5. Easement Issues
- Developed area boundary – clear and defined by markers; preferably contiguous area and adjacent to other conservation land or protected natural resource.
- Uses in the conserved area – simplify, even if more uses are allowed by ordinance.
- Public access – not an ordinance requirement. Monitoring issues, especially with limits on motorized access and hunting.
- Agriculture and forestry – commercial harvesting; commercial agriculture limits.
- Notice to new land owners – permit should require notice of easement in the deed, in addition to recording easement
- Third party enforcement: land trust and municipality can work together to ensure conservation. Conservation Easements on public lands are appropriate in some cases.
30-A MRSA §3261. Conservation commissions
Unless otherwise provided under their home rule authority, municipalities may establish conservation commissions as provided in this section. [1987, c. 737, Pt. A, §2 and Pt. C, §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, §§8, 10 (amd).]
The commission may recommend to the municipal officers that associate members be appointed to assist the commission as the commission requires. Associate members are nonvoting members. Their terms of office shall be for one, 2 or 3 years. [1987, c. 737, Pt. A, §2 and Pt. C, §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, §§8, 10 (amd).] |
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municipality; [1987, c. 737, Pt. A, §2 and Pt. C, §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, §§8, 10 (amd).] |
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local land areas; [1987, c. 737, Pt. A, §2 and Pt. C, §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, §§8, 10 (amd).] |
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purposes; and [1987, c. 737, Pt. A, §2 and Pt. C, §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, §§8, 10 (amd).] |
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owned, including open marshlands, swamps and other wetlands, for the purpose of obtaining information relating to the proper protection, development or use of those open areas. The commission may recommend to the municipal officers or any municipal body or board, or any body politic or public agency of the State, a program for the better protection, development or use of those areas, which may include the acquisition of conservation easements. |
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with respect to open areas within a municipality having a conservation commission shall notify that conservation commission of all plans and planning operations at least 30 days before implementing any action under that plan. |
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[1987, c. 737, Pt. A, §2 and Pt. C, §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, §§8, 10 (amd).] |
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[1987, c. 737, Pt. A, §2 and Pt. C, §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, §§8, 10 (amd).] |
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[1987, c. 737, Pt. A, §2 and Pt. C, §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, §§8, 10 (amd).] |
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Section History:
PL 1987, |
Ch. 737, |
§A2,C106 (NEW). |
PL 1989, |
Ch. 6, |
§ (AMD). |
PL 1989, |
Ch. 9, |
§2 (AMD). |
PL 1989, |
Ch. 104, |
§C8,10 (AMD). |
DIVISION 2.
CONSERVATION COMMISSION*
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* Cross References: Marine activities, structures and ways, Ch. 11; shellfishing, § 11-71 et seq.; streets, sidewalks and other public places, Ch. 14; parks and recreation areas, § 14-96 et seq.; zoning, App. A.
State Law References: Conservation commission, 30-A M.R.S.A. § 3261.
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Sec. 2-76. Composition.
There shall be a conservation commission appointed by the town council consisting of seven (7) members, called conservation commissioners as authorized by 30-A M.R.S.A. § 3261.
(Ord. of 10-3-88, § 101)
Sec. 2-77. Term of office.
The terms of office initially shall be one (1), two (2) and three (3) years, such that the terms of approximately one-third of the members shall expire each year, or until the appointment of their successors, and their successors shall be appointed for terms of three (3) years each. Any commissioner presently serving a term greater than three (3) years may serve until his term expires. The appointment of his successor shall be for a
term of three (3) years.
(Ord. of 10-3-88, § 101(1))
Sec. 2-78. Prohibition of membership.
A town councilmember may not be a conservation commissioner.
(Ord. of 10-3-88, § 101(2))
Sec. 2-79. Organization.
The conservation commission shall elect annually on or about April 1 a chairman, vice-chairman, and secretary from its own membership.
(Ord. of 10-3-88, § 101(3))
Sec. 2-80. Duties.
The chairman shall call and preside at all meetings of the conservation commission. The vice-chairman shall act in the absence of the chairman. The secretary shall keep the official minutes of the commission.
(Ord. of 10-3-88, § 101)
Sec. 2-81. Powers and duties.
The conservation commission has the following powers and duties:
(1) Research and coordination. The commission shall conduct research, in conjunction with the
planning board, into the local land areas and shall seek to coordinate the activities of
conservation bodies organized for similar purposes.
(2) Information. It may advertise, prepare, print, and distribute books, maps, charts, plans, and
pamphlets which it deems necessary within the limits of any funds appropriated for that purpose
by the town council, or otherwise acquired.
(3) Index of open areas. It shall keep an index of all open areas, publicly or privately owned, within
the town, including open marsh lands, swamps, and other wet lands, for the purpose of obtaining
information pertinent to proper utilization, protection, development, or use of these open areas
and may recommend to the town council or any town body or board, or any body politic or
public agency of the state a program for the better utilization, protection, development, or use of
these areas, which may include the acquisition of conservation easements.
(4) Land acquisition. It may, with the approval of the town council, acquire land in the name of the
town for any of the purposes set forth in sections 2-76 through 2-82.
(5) Gifts. It may, with the approval of the town council, receive gifts in the name of the town for any
of its purposes and shall administer the same for such purposes subject to the terms of the gift.
(6) Records and annual report. It shall keep records of its meetings and activities and shall make an
annual report to the town to be published as part of the annual town report.
(Ord. of 10-3-88, § 102)
State Law References: Similar provisions, 30-A M.R.S.A. § 3261(2), (3).
Sec. 2-82. Definition of "open areas".
For purposes of this division, "open areas" means any space or area the preservation or restriction of the
use of which would maintain or enhance the conservation of natural or scenic resources, protect natural streams
or water supplies, promote conservation of swamps, wetlands, beaches, or tidal marshes, enhance the value to
the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations or sanctuaries, or
other open areas or spaces, affect or enhance public recreation opportunities, preserve historic sites, implement
the plan of development adopted by the planning commission of any municipality, or promote orderly urban or suburban development.
(Ord. of 10-3-88, § 103)
State Law References: Open areas definition, 30-A M.R.S.A. § 2001(13).
Sec. 2-83. Public parks and shade trees excepted.
The regulation of public parks and shade trees is not within the jurisdiction of the conservation
commission.
(Ord. of 10-3-88, § 104)
Cross References: Parks and recreation areas, § 14-96.
Sec. 2-84. Notice of planning operations.
Any body politic or public agency of the state conducting planning operations with respect to the open
areas within the town shall notify the commission of all plans and planning operations at least thirty (30) days
prior to the implementation of any action thereunder.
(Ord. of 10-3-88, § 105)
Cross References: Buildings and building regulations, Ch. 5; zoning, App. A.
State Law References: Similar provisions, 30-A M.R.S.A. § 261(2)(D)(1).
This document was prepared by William Ferdinand, Jr. For further information, contact William Ferdinand, Jr. at bderdinand@eatonpeabody.com
This paper is provided as general information, and is not a substitute for legal or other professional advice.