New Legislation Affecting Public Entities

By August 24, 2022 Government Services


The Second Regular Session of the 130th Maine Legislature has adjourned, leaving behind several newly enacted laws that apply to municipal and county government and special districts.  We have summarized some of the most important of these below.  Except for new laws enacted as emergency bills, which take effect upon approval by the Governor, these new laws will become effective August 8, 2022.

PL 2021, c. 666 (LD 1772) – An Act to Amend the Remote Meeting Law in Maine’s Freedom of Access Act

This new law amends the recent changes to the Maine Freedom of Access Act (FOAA) that permit remote meetings by public bodies.  Prior to COVID, FOAA generally had been interpreted to prohibit remote participation in meetings by public body members and to prohibit remote meetings of the public body.  Emergency legislation in March 2020 amended FOAA to allow State, county and local government to continue despite the pandemic by meeting remotely during the Governor’s declaration of an emergency.  As that declaration was set to expire, the Legislature amended FOAA prospectively to permit public bodies to meet remotely and to permit public body members to participate remotely, but this was to be the exception to the expectation that government bodies would meet in public.  Each public body in a municipality had to adopt a remote participation policy, and remote participation and remote meetings were permitted only in limited circumstances.

This new law removes the expectation that members of a public body shall be physically present for its meetings unless an exception applies.  However, a public body still must find “there is an emergency or urgent situation” in order to meet remotely.  The new law also permits a city or town council or select board to adopt a common remote participation policy for all of the municipality’s boards and committees, unless a particular board or committee adopts its own policy.

PL 2021, c. 611 (LD 1971) – An Act to Implement the Recommendations of the Right to Know Advisory Committee Concerning Remote Participation

This new law permits a public body to hold a remote proceeding even if it has not yet adopted a remote meeting policy, but the chair first must determine that an emergency or urgent issue exists, meeting notice must be given that includes how the public may participate in the remote meeting, and upon convening, the body’s members must by at least a 2/3 majority vote to ratify the chair’s determination that an emergency or urgent issue exists that prevents an in-person meeting. The public body also may vote whether to adopt a remote participation policy at that meeting if a copy of the proposed policy was referenced in the notice and made available in advance of the meeting and there is an opportunity for a public hearing.

PL 2021, c. 672 (LD 2003) – An Act to Implement the Recommendations of the Commission to Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions

This new law results from the work of the Commission to Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions.  The decreasing availability of affordable housing led to the creation of this Commission, which recommended several solutions for the Maine Legislature to consider through introduction of LD 2003.  The legislation as enacted has four major components:

(a) Statewide housing production goal. It directs the Department of Economic and Community Development to establish, with the Maine State Housing Authority, a statewide housing production goal to increase the availability and affordability of all housing types in all parts of the State.

(b) Increased density for affordable housing development. A municipality shall permit affordable housing developments on or after July 1, 2023, whether the housing is rented or owned, at a density of at least 2 ½ time the base density otherwise allowed in the area, and with no more than 2 off-street parking spaces for every 3 dwelling units. Such developments must be located in a municipality’s designated “growth area” or served by public water and sewer, must comply with the minimum lot size, and shall be kept affordable for at least 30 years through restrictive covenants. Proof of connection to adequate water and sewer services is required before occupancy

(c) Additional dwelling units. In areas where housing is allowed, a municipality shall allow structures with up to 2 dwelling units per lot if the lot doesn’t contain an existing dwelling unit, and up to 4 dwelling units per lot if the lot is unimproved and is in a designated growth area or is served by public water and sewer.  Where a lot has one existing dwelling unit, a municipality shall allow the addition of up to 2 dwelling units, one within or attached to an existing structure or one additional detached dwelling unit, or one of each, on that lot.  No greater dimensional or setback requirements may be placed upon additional dwelling units than upon single-family dwelling units, and proof of connection to adequate water and sewer services is required before occupancy. Municipalities are not required to implement these provisions until July 1, 2023.

(d) Accessory dwelling units. A municipality shall allow an accessory dwelling unit (ADU) to be located on the same lot as a single-family dwelling unit in any area in which housing is permitted.  The ADU may be within the existing dwelling unit, attached to the existing dwelling unit, or as a new accessory structure.  Except for ADUs permitted in an existing accessory building as of July 1, 2023, the dimensional or setback requirements that apply to an ADU can be no greater than those that apply to a single-family dwelling.  Proof of connection to adequate water and sewer services is required before occupancy.  Permits for ADUs do not count under rate of growth ordinances (i.e., annual building permit limits). Municipalities are not required to implement these provisions until July 1, 2023.

PL 2021, c. 644 (LD 1911) – An Act to Prohibit the Contamination of Clean Soils with So-Called Forever Chemicals

This new law contains several provisions that address Perfluoroalkyl Substances (PFAs); it:

(a) Authorizes DEP to require a person with a wastewater discharge license to sample discharged effluent for PFAs and to report sample data to DEP;

(b) Prohibits DEP issuance of new licenses or permits for landspreading septage (sludge) at any location in Maine;

(c) Prohibits a person otherwise licensed or permitted by DEP to landspread septage (sludge) from applying septage at a location if DEP provides to that person a written determination that testing at or close to that location has caused DEP to determine that the concentration of PFAs in drinking water sources exceeds the applicable drinking water standard for PFAs;

(d) Repeals State law provisions that allow a homeowner to arrange for disposal of septage from that residence to be disposed of on the homeowner’s property;

(e) With limited exceptions, prohibits application or landspreading of sludge or any compost material that includes sludge from a municipal, commercial or industrial wastewater treatment plant or septage or other product intended for use as fertilizer, soil amendment or topsoil replacement or material that is derived from sludge from such a source;

(f) Prohibits sale or distribution of compost material or fertilizer, soil amendment, topsoil replacement or material that is derived from or contains sludge from a municipal, commercial or industrial wastewater treatment plant or septage; and

These prohibitions do not apply to the disposal of wastewater treatment plant sludge or septage at a solid waste landfill or to land application of compost derived from food waste, crops, brewery, winery or distillery residuals so long as those are not mixed with wastewater treatment plant-derived sludge or septage.

DEP is to conduct a study and develop a plan to implement these prohibitions, and will present it to the Legislature by January 15, 2023.

PL 2021, c. 626 (LD 1639) – An Act to Protect the Health and Welfare of Maine Communities and Reduce Harmful Solid Waste

The processing of solid waste from out of state at Maine facilities and the byproduct of “fines” have been deemed to create waste generated within the State that may be disposed of in Maine solid waste landfills.  DEP has authorized the use of fines as alternative daily cover at landfills in lieu of using soil or other cover.  This interpretation had been opposed by landfill critics, resulting in this legislation.  This new law provides that if the total weight of residue generated in a calendar year by a solid waste incineration, recycling or processing facility that is disposed of or placed in a landfill exceeds the total weight of the solid waste initially generated within the State that was incinerated or processed by that facility during that year, that excess residue is not considered waste generated within the State (and therefore may not be disposed of in Maine landfills).  This takes effect February 1, 2023.

It also adds “environmental justice” to the list of standards for the “public benefits determination” that is conducted for a proposed new or expanded solid waste facility.

PL 2021, c. 172 (LD 1875) – Resolve, to Address Perfluoroalkyl and Polyfluoroalkyl Substances Pollution at State-Owned Solid Waste Landfills (Emergency)

This Resolve directs the Department of Administrative and Financial Services, Bureau of General Services, which administers the State’s ownership of the Juniper Ridge Landfill in Old Town and the Dolby Landfill in East Millinocket, to study methods of PFAs/PFOs reduction in landfill leachate, and to report its findings and recommendations to the Maine Legislature’s Environmental and Natural Resources Committee by January 15, 2023.

PL 2021, c. 751 (LD 290) – An Act to Stabilize Property Taxes for Individuals 65 Years of Age or Older Who Own A Homestead for at Least 10 Years

As the bill title says, this new law permits persons who are 65 years of age or older who are Maine residents and have owned a homestead in Maine for at least 10 years and are eligible for a homestead exemption to apply by December 1 of each year to stabilize the property tax assessment on that property at the prior year’s tax amount.

PL 2021, c. 586 (LD 1847) – An Act to Prohibit a Public Utility from Terminating or Disconnecting Service to a Public Safety Facility Without Advance Notice and Approval (Emergency)

In 2021, Central Maine Power attempted to disconnect electrical service to the Town of Buckfield’s fire and rescue facility.  The reason given was billing and communication errors.  As a result, the Legislature enacted this new law to prohibit a public utility from terminating or disconnecting a public safety facility’s utility service for failure to pay utility service rates, fees or charges unless that utility has provided written notice of intent to terminate or disconnect service to the municipal government at least 60 days in advance and has obtained Public Utilities Commission and Department of Public Safety written authorization to terminate or disconnect utility service.

PL 2021, c. 711 (LD 245) – An Act Regarding Consumer-owned Water Utilities

What happens when so many members of the board of trustees of a water utility resign or are removed that there no longer is a quorum needed to meet? This new law provides that where the Public Utilities Commission finds that a consumer-owned water utility lacks enough trustees for a quorum to meet and act, then the PUC may appoint a receiver to oversee the utility’s operations until there are enough duly elected trustees to constitute a quorum.  The PUC may pass the cost of appointing receivers in its assessments to consumer-owned water utilities.

PL 2021, c. 590 (LD 1970) – An Act to Implement Agency Recommendations Relating to Sea Level Rise and Climate Resilience Provided Pursuant to Resolve 2021, Chapter 67

This new law makes several changes to encourage and facilitate undertaking of climate change resiliency and adaptation measures, including:

(a) Allowing road culvert repair, maintenance, and replacement without a Land Use Planning Commission permit so long as the work follows certain requirements;

(b) Amending the requirement that a proposal fit harmoniously into the natural environment to ensure there will be no undue adverse effect on existing uses, on the scenic character and on natural and historic resources in the area and to also require LUPC consideration of the effect of sea-level rise;

(c) Recognizes and defines a “local climate action plan” as a part of the municipal or regional comprehensive plan;

(d) Recognizes a “climate vulnerability assessment” as part of the comprehensive plan inventory and analysis step, and states that a municipality or region may include in its comprehensive plan projections of risk posed by climate change identified in that assessment, such as risks to municipal buildings and infrastructure; and

(e) Directs the Department of Economic and Community Development to give priority to municipalities or multi-municipal regions that have adopted a local climate action plan when the Department award financial assistance grants for planning.