Land Use Planning

Comprehensive Plan Review Criteria Rule (Annotated)

7 EXECUTIVE DEPARTMENT

105 STATE PLANNING OFFICE

Chapter 208: COMPREHENSIVE PLAN REVIEW CRITERIA RULE

SUMMARY: This chapter establishes the criteria the State Planning Office uses to review community comprehensive plans for consistency with the goals and guidelines of the Growth Management Act (30-A MRSA §4312 et seq.). The Office uses this Chapter to review and comment on proposed comprehensive plans under §4347(1) of the Act, and to review the plan component of local growth management programs for which certification has been requested under §4347-A(2).

SECTION 1. General Provisions and procedures

1. Purpose

The primary purpose of this Chapter is to establish the process and criteria the State Planning Office uses to review community comprehensive plans for consistency with the goals and guidelines of the Growth Management Act (30-A MRSA §4312 et seq.). 30-A MRSA §4312 can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp.
close If a community requests certification of its growth management program Certification of a growth management program includes Office review of a municipality's land use ordinances, in addition to the comprehensive plan, in accordance with 30-A MRSA §4347(2). Contact the Office at 800-662-4545 with any questions.
close under 30-A MRSA §4347(2), the Office also uses this Chapter to review the comprehensive plan component of that program. This Chapter sets forth a two-part process for the Office's consistency review: 1) a completeness determination for all required elements of a comprehensive plan; and 2) a more in-depth review of the Future Land Use Plan.

The criteria of this Chapter are based on the Act's goals, substantive guidelines, and procedures. They are not intended to prohibit or discourage a community from developing a plan, ordinance, or program that is more specific or detailed, or that covers more subject areas than called for by required elements.

2. Definitions

The following terms, as used in the Act and this Chapter, have the following meanings unless the context indicates otherwise:

A. Act: "Act" means the Growth Management Act (30-A MRSA §4312 et seq.), alternately referred to in this rule as the Growth Management Act.

B. Amendment: "Amendment" means a change to a comprehensive plan that is adopted subsequent to an Office finding that the plan is consistent with the Growth Management Act. Contact the State Planning Office if there are questions regarding amendment review.
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C. Applicable regional council: "Applicable regional council" means the council of governments, established under 30-A MRSA §2311-2316, or regional planning commission, established under 30-A MRSA §2321-2326, that is the authorized review agency for the regional planning and development district or subdistrict, designated under 30-A MRSA §2341-2342, within which the community submitting a comprehensive plan or zoning ordinance is located. See a map showing coverage areas for every regional council in the state at: http://www.maine.gov/spo/landuse/techassist/regcouncil.php#map.
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D. Arterial: “Arterial” means a highway providing long-distance connections as approved by the Federal Highway Administration For the Federal Highway Administration information, see: http://www.fhwa.dot.gov/hep/23cfr470.htm#Sec.%20470.105
close pursuant to 23 Code of Federal Regulation, Section 470.105(b)(1999) and as so designated by MaineDOT pursuant to the Maine Highway Driveway and Entrance regulations, 17-229 CMR 299. For the MaineDOT information, see: http://www.maine.gov/sos/cec/rules/17/229/229c299.doc
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E. Business day: “Business Day” means Monday through Friday, excluding federal and state holidays.

F. Capital Improvement Program: “Capital Improvement Program” (CIP) means a detailed schedule for capital improvements, estimates of total cost of each improvement, financing sources, scheduling of construction starts or equipment life spans, and projected annual expenditures. The CIP implements the Capital Investment Plan that is prepared as part of the comprehensive plan.

G. Capital Investment: “Capital Investment” means expending municipal funds to purchase assets such as land, machinery, or buildings. For the purposes of this Chapter, capital investments at a minimum include expenditures of more than $10,000 that are used to purchase assets that serve a useful life of at least five (5) years.

H. Capital Investment Plan: “Capital Investment Plan” (CInP) means a summary list of municipal capital investments anticipated during the planning period in order to implement the strategies in the comprehensive plan. Components would include needed investments, sources of funding, and time frame. Link to a couple of examples (Lincolnville and Blue Hill).
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I. Commercial development: “Commercial development” means for-profit business operations that provide goods, services, or commodities. For the purposes of this Chapter, home occupations are not considered commercial development.

J. Community: “Community” means any municipality or multi-municipal region.

K. Comprehensive plan: "Comprehensive plan" or “plan” means a document or interrelated documents developed by a community in accordance with the procedural provisions of 30-A MRSA §4324, and the substantive requirements of 30-A MRSA §4326.

L. Critical natural resource: “Critical natural resources” means those areas in the community comprised of one or more of the following:

(1) Shoreland zone; Link to definition of shoreland zone in rule. 38 MRSA §435 can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp.
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(2) Large habitat blocks; Link to definition of large habitat blocks.
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(3) Multi-function wetlands; Link to definition of multi-function wetlands.
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(4) Essential Wildlife Habitats and Threatened, Endangered, and Special Concern Species occurrences as depicted on maps See the Department of Inland Fisheries and Wildlife mapping page
close prepared by the Department of Inland Fisheries and Wildlife Contact the Department at 800-287-8000 with any questions.
close pursuant to the Maine Endangered Species Act;

(5) Significant wildlife habitat as defined in 38 MRSA §480-B(10); 38 MRSA §480-B(10) can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp
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(6) Significant freshwater fisheries habitat;

(7) Rare and exemplary natural communities, and rare plant occurrences as determined by the State’s Natural Areas Program Link to MNAP: http://www.mainenaturalareas.org/
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(8) Coastal sand dune systems as defined in the Natural Resources Protection Act (38 MRSA §480-B(1); 38 MRSA §480-B(1) can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp. For more information on NRPA, see: http://www.maine.gov/dep/blwq/docstand/nrpapage.htm
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(9) Beginning with Habitat For more information on the Beginning with Habitat program, see: http://www.beginningwithhabitat.org/
close Focus Areas of Ecological Significance Statewide map of focus areas
close identified by the Beginning with Habitat Program of the Maine Department of Inland Fisheries and Wildlife;

(10) Fragile mountain areas as defined in 38 MRSA §480-B(3); These include areas above 2700 foot-elevation. 38 MRSA §480-B(3) can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp
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(11) Coastal bluffs and coastal landslide hazards as depicted on maps Maine Geological Survey website and maps: Online Coastal Bluffs Maps and Digital Data for Coastal Landslide Hazards Maps
close prepared by the Maine Geological Survey; See MGS web site: http://www.maine.gov/doc/nrimc/mgs/pubs/index.htm
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(12) Flood plains as depicted on Federal Emergency Management Agency flood hazard identification maps How to get these maps
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(13) Areas designated as a National Natural Landmark Link: http://www.nature.nps.gov/nnl/
close pursuant to the National Park Service’s National Natural Landmark Program (36 Code of Federal Regulation, Section 62).

M. Critical Resource Area: “Critical Resource Area” means those areas in a community most vulnerable to impacts from development and must include:

(1) Critical rural areas;

(2) Critical natural resources; and

(3) Critical waterfront areas.

N. Critical rural area: "Critical rural area" means a rural area that is specifically identified and designated by a community's comprehensive plan as deserving maximum protection from development to preserve natural resources and related economic activities that may include, but are not limited to, significant farmland, forest land or mineral resources; high-value wildlife or fisheries habitat; scenic areas; public water supplies; scarce or especially vulnerable natural resources; and open lands functionally necessary to support a vibrant rural economy. This definition comes from the Act: 30-A MRSA §4301-4(A)
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O. Critical waterfront area: "Critical waterfront area" means a shorefront area characterized by functionally water-dependent uses, as defined in MRSA 38 §436-A(6) 38 MRSA §436-A(6) can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp
close, and specifically identified and designated by a community's comprehensive plan as deserving maximum protection from incompatible development.

P. Floor area: “Floor area” means the total area covered by all floors in a building, typically measured in square feet or acres.

Q. Growth area: "Growth area" means an area that is designated in a community's comprehensive plan as suitable for orderly residential, commercial, or industrial development, or any combinations of those types of development and related infrastructure, and into which most development projected over 10 years is directed.

R. Growth management program: ''Growth management program" means a set of interrelated documents that comprise a comprehensive plan and implementation program, including zoning ordinances, as described in 30-A MRSA §4326. 30-A MRSA §4326 can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp
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S. Industrial development: “Industrial development” means business operations that manufacture, process, or store goods or commodities. For the purposes of this Chapter, home occupations are not considered industrial development.

T. Institutional development: “Institutional development” means establishments such as governmental facilities, colleges, vocational schools, hospitals, or health care facilities.

U. Large habitat blocks: “Large habitat blocks” means contiguous, undeveloped areas of 150 acres or more.

V. Managed forest lands: “managed forest lands” means lands managed for any of the following purposes: timber stand improvement, timber or other forest products harvesting, regeneration of forest stands, habitat management, aesthetics, recreation, or water quality protection.

W. Marine transportation facilities: “Marine transportation facilities” means public and private facilities used for cargo and/or passenger transport that rely on water access, including infrastructure and support facilities such as buildings, piers, docks, parking, and storage.

X. Minimal commercial/institutional development: “Minimal commercial development” means that there has been less than a ten (10) percent increase in the floor area devoted to commercial and institutional development in the community over the previous ten (10) years.

Y. Minimal industrial development: “Minimal industrial development” means that there has been less than a ten (10) percent increase in the floor area devoted to industrial development in the community over previous ten (10) years.

Z. Minimal residential development: “Minimal residential development” means that residential development in the community is characterized by:

(1) Less than five (5) percent population growth over the previous ten (10) years; and

(2) Less than fifty (50) units of residential housing, including apartment, condominium, and seasonal units, constructed over previous ten (10) years.

AA. Mobility corridor: “Mobility corridor” means an arterial that is a designated “mobility corridor” pursuant to the Maine Highway Driveway and Entrance regulations, 17-229 CMR 299. For Maine Highway Driveway and Entrance, see: http://www.maine.gov/sos/cec/rules/17/229/229c299.doc
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BB. Multi-function wetlands: “Multi-function wetlands” means those wetlands found to provide three of more wetland functions as depicted on the Wetlands Characterization Maps developed by the Office. Contact the State Planning Office at 800-662-4545 with any questions.
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CC. Municipal growth-related capital investment: “Municipal growth-related capital investment” means investment by the municipality in the following projects, even if privately-owned, using municipal, county, state, federal, or other public funds, in the form of a purchase, lease, grant, loan, loan guarantee, credit, tax credit, or other financial assistance: Municipal infrastructure typically includes transportation, sewer, reservoir, potable water supply systems, police stations and local jails, and other infrastructural capital - the built environment - under the jurisdiction of a municipal government or other local government.
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(1) Construction of new transportation infrastructure Transportation infrastructure may include anything from roads and bridges to municipal/private transit systems to traffic lights.
close or capacity;

(2) Construction or acquisition of newly constructed multifamily rental or affordable housing;

(3) Development of industrial or business parks;

(4) Construction or extension of sewer, water, or other utility lines;

(5) Construction of public, quasi-public, or private service infrastructure, facilities, and community buildings; or

(6) Construction or expansion of municipal office buildings, municipal educational facilities, municipal courts, and other quasi-public facilities and other civic buildings that serve public clients and customers.

Municipal growth-related capital investment does not include investment in the following: the operation or maintenance of a governmental or quasi-governmental facility or program; the renovation of a governmental facility that does not significantly expand the facility’s capacity; maintenance of existing transportation infrastructure without significantly expanding capacity; municipal revenue sharing; capital projects that by their purpose are likely to be outside a growth area (such as recreational trails, drinking water holding or purification systems, public works facilities, landfills, etc.); or public health programs.

DD. Municipal officers. "Municipal officers" means the selectmen or councilors of a town, or the mayor and aldermen or councilors of a city.

EE. Non-point sources of pollution. “Nonpoint sources of pollution” means facilities, activities, or any circumstance that cause rainfall, snowmelt, or irrigation water, running over land or through the ground, to pick up pollutants and to deposit them into rivers, lakes, coastal waters, or ground water. For general information regarding non-point source pollution, including various ways to prevent non-point source pollution, see the Maine DEP web site: http://www.maine.gov/dep/blwq/doceducation/nps/index.htm. For information regarding additional practices at the local level, see the “Low Impact Development” publication
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FF. Office: "Office" means the State Planning Office.

GG. Planning committee: "Planning committee" means the committee established by the municipal officers of a municipality, or combination of municipalities, in accord with 30-A MRSA §4324(2) 30-A MRSA §4324(2) can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp
close, which has general responsibility for the comprehensive plan.

HH. Planning period: “Planning period” means a minimum of ten (10) years. Generally, 10 years is an accepted horizon for comprehensive planning. Also, certain data (such as the US Census) are updated every 10 years.
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II. Regional council: "Regional council" means the council of governments, established under 30-A MRSA §2311-2316, or regional planning commission, established under 30-A MRSA §2321-2326, that is the authorized review agency for the regional planning and development district or subdistrict, designated under 30-A MRSA §2341-2342. For a map showing coverage areas for every regional council in the state, see: http://www.maine.gov/spo/landuse/techassist/regcouncil.php#map
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JJ. Rural area. "Rural area" means a geographic area that is identified and designated in a community's comprehensive plan as an area that is deserving of some level of regulatory protection from unrestricted development for purposes that may include, but are not limited to, supporting agriculture, forestry, mining, open space, wildlife habitat, fisheries habitat, and scenic lands, and away from which most development projected over 10 years is diverted.

KK. Shoreland zone: “Shoreland zone” means the same as “Shoreland Area” in the Mandatory Shoreland Zoning Act (38 MRSA §435 et seq.). 38 MRSA §435 can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp
Also see DEP link:http://www.maine.gov/dep/blwq/docstand/szpage.htm for information regarding the Mandatory Shoreland Zoning program
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LL. Significant freshwater fisheries habitat: “Significant freshwater fisheries habitat” means any freshwater river, stream, brook, lake, or pond that is identified as:

(1) a brook trout stream as depicted on maps developed by the Maine Department of Inland Fisheries and Wildlife For more information about the Maine Department of Inland Fisheries and Wildlife, see: http://www.maine.gov/ifw/
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(2) diadramous fisheries habitat as depicted on maps developed by the Maine Department of Inland Fisheries and Wildlife Beginning with Habitat program.

MM. State Transportation System: “State transportation system” means:

(1) Maine Department of Transportation For more information, see: http://www.maine.gov/mdot/index.php
close and Maine Turnpike Authority For more information, see: at www.maineturnpike.com
close administered or supervised state or state aid highways along with associated sidewalks, paths, trails, and/or bridges;

(2) Maine Department of Transportation administered or supervised marine highways, airports, and rail lines along with associated sidewalks, paths, trails, and/or bridges; and

(3) Any associated facilities essential to the safe and efficient operation of those state transportation systems, including but not limited to highway maintenance facilities, transit/rail stations, toll plazas, ferry terminals, cargo ports, intermodal transportation centers, weigh stations, rest areas, visitor information centers, service plazas, and park-and-ride lots, as well as parking lots and other infrastructure serving those facilities.

NN. Stream: “Stream” means the same as “Stream” in the Mandatory Shoreland Zoning Act (38 MRSA §435 et seq.) 38 MRSA §435 can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp
Also see DEP link: http://www.maine.gov/dep/blwq/docstand/szpage.htm for information regarding the Mandatory Shoreland Zoning program
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OO. Strip development: “Strip development” means a pattern of development, usually commercial in nature, in which individual establishments have direct access to a single arterial or main thoroughfare. Strip developments are generally not in downtown areas and often lack pedestrian facilities, but are characterized by automobile-focused access with multiple curb cuts in relatively short distances.

PP. Transit services: “Transit services” means public or private operations that provide transportation to the public, such as rail and bus operations.

QQ. Transitional area: "Transitional area" means an area that is designated in a community’s comprehensive plan as suitable for a share of projected residential, commercial, or industrial development but that is neither intended to accept the amount or density of development appropriate for a growth area nor intended to provide the level of protection for rural resources afforded in a rural area or critical rural area.

RR. Wetlands: "Wetlands" means any coastal wetlands or freshwater wetlands as defined below: Wetlands in Maine may be regulated under the state Natural Resources Protection Act
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(1) Coastal wetlands include any of the following:

a. all tidal and sub-tidal lands, including all areas below any identifiable debris line left by tidal action;

b. all lands containing vegetation that is tolerant of salt water and occurs primarily in a salt water or estuarine habitat; and

c. any swamp, marsh, bog, beach, flat, or other contiguous low land that is subject to tidal action during the maximum spring tide level identified in tide tables published by National Ocean Services.

(2) Freshwater wetlands include freshwater swamps, marshes, bogs, and similar areas (other than areas considered part of a great pond, coastal wetland, river, stream, or brook) that are inundated or saturated by surface or ground water at a frequency and for a duration sufficient to support, and which under normal circumstances do support, a prevalence of wetland vegetation typically adapted for life in saturated soils. Freshwater wetlands may contain small stream channels or inclusions of land that do not conform to the above defining criteria.

SS. Zoning ordinance: "Zoning ordinance" means a municipal land use ordinance that:

(1) Divides a community into zoning districts and prescribes the reasonable application of different regulations in each district to encourage orderly growth and development and implement a community's designation of growth, rural, and critical resource areas in its comprehensive plan; and

(2) Has been developed by the community in accordance with the procedural provisions and the substantive requirements of 30-A MRSA §§4324, 4326, and 4352. 30-A MRSA §4324, 4326, and 4352 can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp
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3. Transition from Chapter 202 If there are questions regarding these options, please contact the Office at 800-662-4545 or email Stacy Benjamin at SPO.
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This Chapter replaces Chapter 202, which is repealed as of the effective date of this Chapter.

A. Communities that have submitted plans or amendments to plans to the Office for review prior to the effective date of this Chapter but have not yet received a Finding of Consistency have two options:

(1) Resubmit the plan for review under the provisions set forth in this Chapter. Resubmission resets the comment and findings deadlines set forth in 30-A MRSA §4347-A(3); or

(2) Continue to be reviewed under the review standards of Chapter 202 (which are incorporated by reference for this specific purpose only) until found consistent, provided consistency is determined within 24 months after the initial finding letter is issued pursuant to 30-A MRSA §4347-A(3).

B. Plans or amendments to plans submitted to the Office for review after the effective date of this Chapter must comply with the requirements of this Chapter, except that if a community submits a plan or amendments to a plan developed by a planning committee that was formed and held its first meeting prior to the effective date of this Chapter, the community has the option of having the Office review the plan or amendments under the review standards of Chapter 202 (which are incorporated by reference for this specific purpose only) or this Chapter, provided that the plan is submitted for review prior to September 20, 2008.

4. Submission Requirements

Plans submitted to the Office for review under this Chapter must be submitted in a manner and on forms The forms are available from the Office. Link to self-assessment checklist and submittal forms. Contact the Office at 800-662-4545 with any questions.
close prescribed by the Office. The submission must include all of the applicable required elements in Section 2.

5. Review Process

A. Notification of Completeness

Upon receipt of a comprehensive plan for review for consistency with the Act, the Office will solicit comments on the plan in accordance with Section 1.5(C). The Office will review the submittal and Self-Assessment Checklist One of the goals of the self assessment checklist is to enable communities to identify the items that the Office will look for in its review for completeness.
close for completeness; consider any comments received pursuant to Section 1.5(C); and, within thirty-five (35) business days of receipt, either issue a Notification of Completeness or notify the community in writing if there are any missing elements. The Office will issue a Notification of Completeness and begin its focused review of the Future Land Use Plan if:

(1) The plan is submitted in a manner and on forms as prescribed by the Office;

(2) A completed Self-Assessment Checklist is included;

(3) The plan includes a vision statement that summarizes the community’s desired future community character;

(4) Public participation has occurred in accordance with the 30-A MRSA §4324;

(5) A regional coordination program is included in accordance with Section 2.3;

(6) The minimum required analyses, condition and trend data, policies, and strategies from Section 4 are included in the plan;

(7) The Plan includes a Future Land Use Plan with associated maps and narrative;

(8) An implementation section is included; and,

(9) The plan provides for future periodic evaluation of the plan and its implementation.

A Notification of Completeness means that portions of the plan other than the Future Land Use Plan have been accepted by the Office as consistent with the Act.

If missing elements are identified during the completeness review, the Office will notify the community in writing of the missing elements. If a community submits additional information to the Office in response to a notification of missing elements within ninety (90) business days, the Office will review the additional information and, within ten (10) business days of receipt, notify the community in writing if the missing elements have been adequately addressed. If the missing elements have been adequately addressed, the Office will issue a Notification of Completeness.

A new completeness review process begins if a community submits additional information to the Office in response to a notification of missing elements more than ninety (90) business days from that notification.

B. Review of Future Land Use Plan

Following the issuance of a Notification of Completeness, the Office will review a community’s Future Land Use Plan under Section 3 of this Chapter, taking into account any comments received pursuant to Section 1.5(C).

C. Comment Solicitation

Pursuant to 30-A MRSA §4347-A(3), 30-A MRSA §4347 can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp.
close upon receipt of a comprehensive plan for review, the Office shall solicit written comments from applicable regional councils, state agencies, all municipalities contiguous to the community submitting a comprehensive plan, and any interested residents of the community or of contiguous municipalities. Comments must be received within twenty-five (25) business days of the Office’s notice of plan submittal. The Office shall consolidate all written comments from all sources and forward them to the community and any applicable regional council.

(1) State Agency Comments

State agencies may comment on a submitted comprehensive plan. If they do so, comments must:

a. Identify the comprehensive plan being commented on.

b. Identify the state agency and the name and contact information of its designated review coordinator.

c. List any missing elements identified during the agency’s review.

d. Conclude whether the comprehensive plan demonstrates the appropriate use of data provided by the agency, how the plan's policies, implementation strategies, and other provisions relate to the agency's objectives and directives, whether the plan supports the agency's programs and policies in carrying out the goals of the Act, and, if necessary, what goal of the Act is not adequately addressed.

e. Suggest what additional measures, if any, the community might take to improve the quality or effectiveness of its comprehensive plan.

(2) Regional Council Comments

Regional councils may comment on a submitted comprehensive plan. If they do so, comments must:

a. Identify the proposed comprehensive plan being commented on.

b. Identify the regional council and the name and contact information of its principal reviewer.

c. List any missing elements identified during the council’s review.

d. Evaluate whether the comprehensive plan addresses identified regional needs and policies, supports existing, adopted regional plans, and whether the plan supports the adopted or proposed comprehensive plans of contiguous municipalities.

e. Solicit and provide comments to the Office from contiguous municipalities.

f. Suggest what additional measures, if any, the community might take to improve the quality or effectiveness of its comprehensive plan.

6. Consistency Findings

A. Notification of Consistency Findings

Within ten (10) business days of issuing a Notification of Completeness, the Office will notify the community by certified mail, return receipt requested, whether its plan has been found consistent with the Growth Management Act. This deadline may be extended upon mutual agreement between the Office and the community.

B. Finding of Consistency

The Office shall issue a Finding of Consistency for the comprehensive plan if:

(1) A Notification of Completeness has been issued; and

(2) The Future Land Use Plan conforms to Section 3.

C. Finding of Inconsistency

The Office shall issue a Finding of Inconsistency if it finds that the comprehensive plan is not consistent with the Growth Management Act. A Finding of Inconsistency must identify:

(1) The goal(s) of the Growth Management Act that is (are) not adequately addressed;

(2) The specific section(s) of this Chapter that is not adequately addressed; and

(3) Recommended measure(s) needed for a Finding of Consistency.

Within twenty-four (24) months of a Finding of Inconsistency, a community may submit revisions to address the inconsistencies without a new review of the entire plan. After twenty-four (24) months, the plan must be resubmitted in its entirety for state review under this Chapter.

A community may appeal the Office’s Finding of Inconsistency to the Director of the Office pursuant to Section 1.7.

7. Appeal of a Finding of Inconsistency

A. Making an Appeal.

A community whose comprehensive plan is found inconsistent with the Growth Management Act may appeal that finding to the Director of the Office Martha Freeman, Director, State Planning Office, 184 State Street, 38 State House Station, Augusta ME 04333-0038
close, hereinafter referred to as the Director, as follows:

(1) Any appeal of a Finding of Inconsistency must be made by the municipal officers of the community and must be received no later than twenty (20) business days after such a finding is received.

(2) Such appeal must be made by filing with the Director a written notice of appeal specifying which portion or portions of the finding is being appealed, and on what grounds, in accordance with Section 1.7(B).

B. Grounds for Appeal

The grounds for an appeal are limited to and must specifically address one or more of the following:

(1) errors of fact made during the review;

(2) failure to apply and follow the process and criteria of this Chapter or the Act; or

(3) arbitrary or capricious decision.

C. Procedure on Appeal

The Director may delegate the appeal to another senior staff person outside of the Office’s Land Use Team who was not involved in the consistency review; hereinafter referred to as the Designee.

Upon being notified of an appeal, the Land Use Team Director shall transmit to the Director or Designee all of the papers constituting the record of the decision being appealed.

In considering an appeal, the Director or Designee shall:

(1) examine relevant portions of the comprehensive plan submission, the relevant requirements of the Act and this Chapter, and the Finding of Inconsistency by the Land Use Team;

(2) determine, on the basis of the entire record presented, whether the Land Use Team followed the required process and reasonably interpreted the facts to reach the conclusion(s) upon which the Finding of Inconsistency under appeal was based; and

(3) determine whether there are grounds for the appeal of the Finding of Inconsistency pursuant to Section 1.7(B).

D. Decisions of the Director and Appeals to Superior Court

(1) Remand

If the Director or Designee finds, based on the record presented, that there are ground(s) for appeal under Section 1.7(B), the Director or Designee shall remand with recommendation(s) all or a portion of the finding to Land Use Team Director for reconsideration. The decision of the Director or Designee to remand is not final agency action by the Office and is not appealable to Superior Court.

In the case of such a remand, the Land Use Team Director shall reconsider the original finding and issue a new finding based on the recommendation(s) of the Director or Designee within ten (10) business days. The Office will notify the community of the new consistency finding by certified mail, return receipt requested. The new consistency finding constitutes final agency action.

(2) Decision finding no grounds for appeal

If the Director or Designee finds no grounds for appeal, he/she will issue a notice of decision so stating. The Office will notify the community of the new consistency finding by certified mail, return receipt requested. The notice of decision finding no grounds for appeal constitutes final agency action.

(3) Notice of right to appeal to Superior Court

The Office’s new finding or the Director’s notice of decision finding no grounds for appeal must include an explanation of the community’s right to judicial review of final agency action under 5 MRSA §11001 et seq.

8. Duration of Consistency Findings

A Finding of Consistency under this Chapter A Finding of Consistency has three benefits to a town: 1. The comprehensive plan has been found to meet the goals of the Act and have a reasonable chance of being successful if implemented; 2. communities with such Findings are awarded points in certain State grant and loan programs; and 3. the Growth Management Act requires rate of growth, zoning, or impact fee ordinances to be consistent with a consistent comprehensive plan.
close is deemed valid for twelve (12) years from the date of issue. A Finding of Consistency issued under Chapter 202 is deemed valid until January 1, 2012 or twelve (12) years from the date of issue, whichever is later. An expired Finding of Consistency does not automatically make a plan inconsistent with the Act and this Chapter. If a Finding of Consistency expires, then the status of a community’s comprehensive plan is determined to be “unknown” until an updated plan is submitted for review.
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9. Review of Amendments to Approved Comprehensive Plans Contact the Office at 800-662-4545 or Stacy Benjamin at SPO for more information if you have questions regarding the scope of the proposed amendments and to discuss the review process for amendments.
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If a community proposes or adopts amendments to a comprehensive plan that previously has been found consistent with the Act, the community may submit the amendment(s) for review to determine if the changes affect the consistency finding. The Office will review the submitted amendments under the process and criteria of this Chapter in the most expedient manner practicable commensurate with the scope of the amendments and issue a finding as outlined in Section 1.6.

Communities need not submit amendments that do not affect the substance of the plan, such as typographical or grammar corrections. Such nonsubstantive corrections do not affect the consistency status of a community’s comprehensive plan. If an amendment includes changes to a Future Land Use Plan, then the Office will review the amendment to ensure that the amendment meets the requirements for a Future Land Use Plan set forth in Section 3. If an amendment does not include changes to a Future Land Use Plan, then the Office will review the amendment to ensure that the plan contains the state goal, analyses, condition and trend data, policies, and strategies for each of the required topic areas in Section 4.

A Finding of Consistency for amendments does not reset the duration of the original plan consistency finding for the purposes of Section 1.8.

[NOTE: Substantive changes to policies or strategies proposed to be adopted as amendments to a consistent comprehensive plan, especially changes within the Future Land Use Plan section, may result in a judicial declaration invalidating a Finding of Consistency.]

SECTION 2. Required Elements

1. Vision Statement

The plan must include a vision statement A vision statement may be developed in a number of ways, but should reflect the overall community’s vision. See the “Visioning Handbook”, available from the Office and at this link: http://www.maine.gov/spo/landuse/docs/visioning/visioning.pdf for more guidance on the visioning process.
close that summarizes the community’s desired future community character in terms of economic development, natural and cultural resource conservation, transportation systems, land use patterns and its role in the region.

2. Public Participation Summary

The plan must include a summary of the public participation process used by the planning committee in developing the plan pursuant to 30-A MRSA §4324. The summary must indicate how information gathered during the public process was used to guide the plan’s vision statement, analyses, policies and strategies.

3. Regional Coordination Program

Pursuant to 30-A MRSA §4326(4), a regional coordination program must be pursued with other communities (or the Land Use Regulatory Commission (LURC) if the community abuts land under LURC jurisdiction) to manage shared resources and facilities, including but not limited to lakes, rivers, aquifers, and transportation facilities. The plan must identify any shared resources and facilities, describe any conflicts with neighboring communities’ policies and strategies pertaining to shared resources and facilities and describe what approaches the community will take to coordinate management of shared resources and facilities. In addition, the plan must include a summary of regional coordination efforts from all applicable topic areas.

4. Future Land Use Plan

The plan must include a Future Land Use Plan that meets the requirements set forth in Section 3. Link to Section 3 of the rule
close The Future Land Use Plan will be the focus of the Office’s in-depth review for consistency with the Act.

5. Topic Area Components

In order to be found consistent with the Growth Management Act, the plan must contain the state goal, analyses, condition and trend data, policies, and strategies for each of the required topic areas in Section 4. Link to Section 4 of the rule.
close These minimum requirements in no way limit a community from expanding its plan to include additional information, analyses, policies, and strategies.

A. State Goals

The plan must indicate the state goal or goals relevant to each topic area as identified in Section 4. Local goals may be added but are not required.

B. Analyses and Key Issues

The plan must identify the key issues facing the community using the series of questions for each of the topic areas in Section 4. See also the self-assessment checklist for required analyses.

Note that the self-assessment checklist includes a column “N/A” (not applicable) which can be checked if a particular item is not applicable in the community’s instance. If this column is marked, please provide the rationale for marking that column in the space provided or as an attachment. SPO recommends speaking with staff if the N/A column is marked: 800-662-4545. See also Rule language in Section 2.6.
close These questions get to the heart of the issues a community must plan for to address the state goals. A community must address each of these questions in its plan’s narrative, unless determined not to be applicable per Section 2.6.

C. Conditions and Trends

To provide a basis for the analyses of key issues, the plan must include sufficient data necessary to identify current conditions and future trends for each of the topic areas in Section 4. See also the self-assessment checklist for required conditions and trends data.

Note that the self-assessment checklist includes a column “N/A” (not applicable) which can be checked if a particular item is not applicable in the community’s instance. If this column is marked, please provide the rationale for marking that column in the space provided or as an attachment. SPO recommends speaking with staff if the N/A column is marked: 800-662-4545. See also Rule language in Section 2.6.
close Some of the data requirements will not be applicable in a given community and therefore will not be required in accordance with Section 2.6. Much of the data will be provided by state agencies. Some data are only available from local sources. All data should be verified locally, if possible.

Data provided by state agencies for each of the topic areas are compiled into state data sets provided by the Office upon request by a community, or regional council on behalf of a community. If a community or regional council has requested a state data set and not received it within eight months of the request, then those state data components and associated analyses are not required for a Finding of Consistency.

Data included in state data sets are considered the most current data available and will be considered current for consistency reviews for three (3) years. Communities taking longer than three years to prepare a plan should request a new state data set from the Office and update the plan accordingly prior to submitting it to the Office for a consistency review.

D. Policies

The minimum required policies for each topic area in Section 4 See also the self-assessment checklist for the required policies.
close must be incorporated into a plan for it to be found consistent with the Growth Management Act. The language may be altered to better suit a community, but the specific intent of the minimum policy must remain. Altered policies must reflect the desired future direction of the community as stated in the community’s vision statement.

E. Strategies

The strategies describe what actions the community will take to carry out its policies. The plan must include all of the minimum required strategies identified in Section 4 for each topic area. See also the self-assessment checklist for the required strategies.
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Alternative strategies may be substituted for those included in this Chapter provided a rationale for the alternative strategy is detailed in the Self-Assessment Checklist. If a community wishes to substitute alternative strategies, discussion with the Office is recommended. Including additional strategies is encouraged as necessary to meet individual community priorities.
close Alternative strategies will be considered by the Office to determine if they, in combination with the other strategies in the plan, address the goals of the Act.

6. Applicability

If a required element is determined by the community to not be applicable, an explanation for that determination must be provided on the Self-Assessment Checklist. Some items, such as the applicability of marine resources in inland communities, will require only a simple explanation or notation. Other items will require more detailed explanation. This provision is not intended to allow communities to circumvent the requirements for consistency with the Act. During its review of a comprehensive plan, the Office will make a final decision on the applicability of a required element by considering the following criteria:

A. Does the information provided in the plan support the community’s explanation of non-applicability?

B. Does the exclusion of the required element create a gap in the information needed to support the Future Land Use Plan?

[NOTE: It is strongly recommended that a community coordinate with the Office well in advance of submission for review to discuss the applicability of required elements.]

7. Plan Implementation

The plan must include a separate section that prioritizes how implementation strategies will be carried out pursuant to 30-A MRSA §4326(3). The plan must identify the responsible party and anticipated timeline for each strategy in the plan. See this sample implementation table
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8. Evaluation

The plan must include an outline describing how the community will periodically (at least every five years) evaluate the following:

A. The degree to which future land use plan strategies have been implemented;

B. Percent of municipal growth-related capital investments in growth areas;

C. Location and amount of new development in relation to community’s designated growth areas, rural areas, and critical resource areas

D. Amount of critical resource areas protected through acquisition, easements, or other measures.

If the community’s evaluation concludes that portions of the current plan and/or its implementation are not effective, the community is encouraged to propose changes as needed.

9. Self-Assessment Checklist

A plan submitted to the Office for review must include a completed Self-Assessment Checklist (see Appendix A) Link to checklist
close which confirms that each of the elements required by this Chapter are included in the plan.

10. Certification

A plan submitted for review under this Chapter must include the original signature(s) of the municipal officer(s) of the community under the following certification: Link to submittal form
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I (we) certify that this comprehensive plan was prepared with the intent of complying with the Planning and Land Use Regulation Act (30 MRSA §4312 et seq.), that it includes all of the applicable required elements of the Maine Comprehensive Plan Review Criteria Rule (07-105 CMR 208), and that it is true and accurate.

Section 3. Future Land Use Plan

1. State Goal

To encourage orderly growth and development in appropriate areas of each community, while protecting the state's rural character, making efficient use of public services, and preventing development sprawl.

2. Future Land Use Plan Overview

The plan must include a Future Land Use Plan that is consistent with the community’s vision and other policies in the plan. The Future Land Use Plan brings together plan elements that affect land use. It is intended to synthesize these elements into a cohesive guide to realizing the community’s vision, including the development of land use regulations/ordinances. Use the analysis of conditions and trends data in Section 4, in conjunction with the vision statement, to develop the community’s Future Land Use Plan.

The Future Land Use Plan divides the community into geographical areas identified as either most suitable for growth or most suitable for rural uses unless exempted under 30-A MRSA §4326(3-A) 30-A MRSA §4326(3-A) can be found by searching for it at http://janus.state.me.us/legis/statutes/search.asp
close, more fully described below . The Future Land Use Plan also identifies critical resource areas Critical resource areas are those areas that deserve maximum protection from development to preserve scarce or vulnerable natural resources or economic activities that rely on natural resources. Link to definition in Rule.
close within the community. The Future Land Use Plan will be the focus of the Office review for consistency To be considered “consistent with the Act,” the State Planning Office must determine that a comprehensive plan meets the statewide goals of the Planning and Land Use Regulation Act (the Growth Management Act). To do so, the Office reviews the plan to see that it contains the required elements of a Plan, and then performs an in-depth review of the Future Land Use Plan. Link to Section on completeness in rule and consistency.
close with the Act.

3. Review Criteria for Future Land Use Plan Designations

A. Growth Areas

A community’s Future Land Use Plan must identify a growth area or areas. The designation of growth areas is intended to ensure that planned growth and development and related infrastructure are directed to areas most suitable for such growth and development. Land areas designated as growth area must be consistent with the following provisions.

(1) The Future Land Use Plan must designate as growth area those lands into which the community intends to direct a minimum of 75% of its dollars for municipal growth-related capital investments See the definition of Future Land Use Plan. Municipal growth-related capital investments are spelled out in the capital investment plan. A capital investment plan includes planning for public water, public sewer, transportation, and other public facilities; see the definition of capital investment and the requirements for a capital investment plan. The capital investment plan also identifies facilities needed to accommodate projected growth, assigns them priorities, and identifies possible funding sources.
close made during the planning period.

(2) Built-out or developed areas that may not have capacity for further growth but require maintenance, replacement, or additional capital investment to support existing or infill development must also be designated as growth areas.

(3) Growth areas must be limited to land areas that are physically suitable for development or redevelopment. Growth areas may include land areas that are physically unsuitable for development or redevelopment, such as a river, stream, floodplain, small natural hazard area, small lake or aquifer, or small critical natural resource, if the plan addresses how these areas will be protected to the greatest extent practicable or as prescribed by law.

(4) Growth areas, to the greatest extent practicable, must be limited to an amount of land area and a configuration to encourage compact, efficient development patterns (including mixed uses) and discourage development sprawl and strip development.

(5) Growth areas along arterials and mobility corridors must be configured to avoid strip development Link to strip development definition
close and promote nodes or clusters of development.

B. Growth Area Exemptions

In some communities, conditions may make the identification of specific areas for residential, institutional, commercial, and/or industrial growth inappropriate. These conditions, as described in 30-A MRSA §4326(3-A) and Section 3.5 of this Chapter, include:

(1) Severe physical limitations;

(2) Minimal or no growth; or

(3) The lack of a village or densely populated area.

Communities with one or more of these conditions may develop a Future Land Use Plan that does not identify growth areas for residential, institutional, commercial, or industrial growth pursuant to the criteria identified in Section 3.5. If a growth area exemption is proposed, the plan’s description of existing trends and conditions must support the exemption request. If a community is proposing a growth area exemption, SPO strongly recommends discussing the issue first, before the comprehensive plan is submitted for review or for vote. Contact SPO at 800-662-4545
close Communities with town-wide growth caps or rate-of-growth ordinancesA municipality may enact rate of growth ordinances that set different limits on the number of building or development permits that are granted in designated rural areas and designated growth areas. 30-A MRSA §4360 Rate of growth ordinances, provides the specifics on how the rate is set. See http://janus.state.me.us/legis/statutes/30-a/title30-asec4360.html

The town of Raymond has a growth limitation ordinance which caps growth in the rural section of town but not in the village center. See: http://www.raymondmaine.org/government/ordinances/default.htm, click on "Growth Management Ordeinace" in the left hand column.
close are not eligible for a growth area exemption.

C. Shared Growth Areas

Pursuant to and in accordance with 30-A MRSA §4325, 30-A MRSA §4325 governs cooperative growth management efforts conducted by 2 or more municipalities. Any combination of municipalities may conduct joint planning and regulatory programs to meet the requirements of this subchapter upon adoption of a written comprehensive planning and enforcement agreement by the municipal legislative bodies involved.
close communities may enter into an interlocal agreement with one or more neighboring communities to designate regional growth areas for anticipated residential, institutional, commercial, or industrial growth and/or related services or infrastructure.

D. Transitional Areas

The Future Land Use Plan may designate as transitional area those land areas which the community identifies as suitable for a share of projected residential, institutional, commercial or industrial development but that is neither intended to accept the amount or density of development appropriate for a growth area nor intended to provide the level of protection for rural resources afforded in a rural area or critical rural area. Designated transitional areas are intended to provide for limited suburban or rural residential development opportunities. Land areas designated as transitional area must be consistent with the following provisions:

(1) Transitional areas may not be defined as growth areas for the purposes of state growth related capital investment pursuant to 30-A MRSA §4301 (5-B).

(2) Development standards in transitional areas must limit strip development along roads through access management , minimum frontage requirements, Limitation or prohibition of the creation of new lots that front on existing major through roads, or the requirement for very large road frontages are ways to limit strip development. For ideas on controlling access in subdivisions, see: http://www.smrpc.org/landuse/subord/subord.htm (Performance and Design Standards).
close and other techniques.

(3) Transitional areas may not include significant contiguous areas of working farms, wood lots, properties in state tree growth and farm and open space tax programs, prime agricultural and forestry soils, unfragmented habitat, or marine resources identified in the conditions and trends in Sections 4.6, 4.8, and 4.10.

(4) Transitional areas must be compatible with designations in adjacent communities or provide buffers or transitions to avoid land use conflicts with neighboring communities.

E. Rural Areas

The community’s Future Land Use Plan must identify a rural area or areas. The designation of rural areas is intended to identify areas deserving of some level of regulatory protection from unrestricted development for purposes that may include, but are not limited to, supporting agriculture, forestry, mining, open space, wildlife habitat, fisheries habitat and scenic lands, and away from which most development projected over ten (10) years is diverted.

A community’s Future Land Use Plan must designate as rural area or areas any portion of the community consistent with the following provisions:

(1) Rural areas must include agricultural, forest, open space, and coastal lands important to the local or regional natural resource-based economy, including:

a. working farms, wood lots, and properties enrolled in current-use tax programs related to forestry, farming or open space; Encourage owners of large agricultural, wood, or open space lots to take advantage of Current Use Farm, Tree Growth, or Open Space Current Use Tax Programs. For more information, see http://www.maine.gov/revenue/propertytax/propertytaxbenefits/CurrentUseLandPrograms.htm#farm
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b. large, unfragmented, undeveloped areas of prime agricultural soils;

c. important areas for nature-based tourism and outdoor recreation; and

d. unfragmented habitat.

(2) The Future Land Use Plan must identify current and proposed mechanisms, both regulatory Regulatory mechanisms include creation of agricultural zoning district, mandatory open space zoning, or a limitation on the number of lots that can be built upon annually in a subdivision in rural areas. For an example of a good Cluster/Open Space Development requirement, see: http://www.e-codes.generalcode.com/codebook_frameset.asp?t=tc&p=1284%2D140%2Ehtm&cn=649&n=[1][255] (Town of South Berwick ).

Also see to http://www.berwickmaine.org/ (Section 6.3.1 Residential Growth Limitations) for an example of limits in rural subdivisions and incentives for using water/sewer)
close and non-regulatory, There are a variety of non-regulatory measures that can be used to direct growth to appropriate areas and protect critical resources. One way is to get commitments from local water and sewer districts to not extend their services into designated rural areas. Another way is for the municipality to purchase conservation easements, or work with local land trusts to consider purchasing easements in designated rural areas.
close to ensure that the level and type of development in rural areas is compatible with the defined rural character and does not encourage strip development along roads.

(3) Rural areas may not include land areas where the community actively encourages new residential, institutional, or commercial development.

(4) Rural areas must be compatible with designations in adjacent communities or provide buffers or transitions to avoid land use conflicts with neighboring communities.

F. Critical Resource Areas

The Future Land Use Plan must identify and designate critical resource areas as defined in this Chapter. Land areas designated as critical resource area must be consistent with the following provisions:

(1) Critical resource areas are those areas in a community most vulnerable to impacts from development.

(2) The Future Land Use Plan must identify current and proposed mechanisms, both regulatory and non-regulatory, There are a variety of non-regulatory measures that can be used to direct growth to appropriate areas and protect critical resources. One way is to get commitments from local water and sewer districts to not extend their services into designated rural areas. Another way is for the municipality to purchase conservation easements, or work with local land trusts to consider purchasing easements in designated rural areas.
close to ensure that critical resource areas are, to the greatest extent practicable, protected from the impacts of development.

(3) Critical resource areas must be compatible with designations in adjacent communities or provide buffers or transitions to avoid land use conflicts with neighboring communities.

4. Required Elements for the Future Land Use Plan

A. Analysis and Key Issues

(1) How does the Future Land Use Plan align and/or conflict with the community’s vision statement? The vision statement describes what residents want the community to look like, feel like, and be like. Does the Future Land Use Plan and its blueprint for the future equate to what people want to see in the future when they walk along Main Street or sidewalks in town? When they use bike trails? When they travel community roads? When they visit parks and nature preserves? Does the Future Land Use Plan identify the best places for new houses and what those houses might look like? Does the Future Land Use Plan identify the best places for new economic development and what that might look like?
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(2) How is the configuration of the growth areas shaped by natural opportunities and/or constraints (i.e. the physical suitability or unsuitability of land for development)? The location of public facilities? The transportation network?

(3) How does the Future Land Use Plan relate to existing regional economic, housing, transportation and natural resource plans? Check with your Regional Planning Council and include any such Regional Plans or projects. Pursuant to M.R.S.A. 30-A section 2321, regional planning commissions are required to prepare and maintain a comprehensive plan. Check with your region’s planning commission to secure a copy of their latest plan.
close How does the Future Land Use Plan relate to recent development trends? Does the Future Land Use Plan account for anticipated growth, either residential, commercial, or industrial? If there are issues with the pattern of recent development, does the Future Land Use Plan address those issues?
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(4) Are most municipal capital investments currently directed toward growth areas? Why or why not?

(5) How can critical resource areas be effectively protected from future development impacts?

B. Components

The Future Land Use Plan must include:

(1) A map or maps showing the following land use areas and any smaller land use districts within them: Growth (unless exempted), Rural, Critical Resource, and Transition (if proposed).

(2) A narrative description of each land use area including:

a. The area’s relationship to the community’s vision;

b. The names of any smaller land use districts within the area;

c. The area’s natural opportunities and/or constraints;

d. The area’s transportation system;

e. The types and intensity of proposed land uses, including the range of residential densities;

f. The area’s proximity to existing and proposed public facilities and services;

g. The compatibility or incompatibility of proposed uses to current uses within and around the area along with any special development considerations Examples of land uses that might be deemed incompatible and, therefore, warranting special development considerations include:

1) industrial adjacent to residential
2) residential adjacent to natural resource protection
3) large-scale commercial adjacent to small-scale mixed uses.

Respectively, special development considerations might include:

1) Measures to mitigate noise and visual impacts (e.g. setbacks, fences, plantings) as well as a vehicular circulation pattern designed to exclude truck traffic from residential streets.
2) Measures to minimize development impacts such as specific minimum setbacks from sensitive environmental areas and/or mandatory use of open space subdivision provisions to minimize development footprint near those areas.
3) Measures to improve the visual, aesthetic and functional integration of large-scale development adjacent to small-scale development such as architectural design review and site plan design standards for the location and configuration of parking lots and specifications for consistent street trees, pedestrian amenities and street furniture.
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(e.g. need for additional buffers, architectural design standards, etc.); and

h. Any anticipated major municipal capital investments needed to support the proposed land uses.

(3) A summary of the key regulatory and non-regulatory approaches, including investment policies and strategies, the community will use to implement its Future Land Use Plan.

C. Policies

Minimum policies to address state goals:

(1) To coordinate the community’s land use strategies with other local and regional land use planning efforts.

(2) To support the locations, types, scales, and intensities of land uses the community desires as stated in its vision.

(3) To support the level of financial commitment necessary to provide needed infrastructure in growth areas.

(4) To establish efficient permitting procedures, especially in growth areas.

(5) To protect critical resource areas from the impacts of development.

D. Strategies

Land Use Planning Program