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Articles 1 - 30 of 56
Full-Text Articles in Land Use Law
The Status Of Private Covenants In Gross In Maine, Geoffrey Forney
The Status Of Private Covenants In Gross In Maine, Geoffrey Forney
Maine Law Review
In State v. Moosehead Mountain Resort, the Maine Supreme Judicial Court recently held that the State may enforce a restrictive covenant in gross. The decision appears to create new law by departing from the established rule in Maine, as laid down in an earlier decision in Brown v. Heirs of Fuller, that restrictive covenants in gross are not enforceable in equity. Although the holding in Moosehead Mountain is arguably narrow because the case only addressed the government's ability to enforce covenants in gross, the Law Court's omission of any reference to or discussion of its decision in Brown leaves open …
Symposium Keynote: “A Call To Housing Advocacy”, Greg Payne
Symposium Keynote: “A Call To Housing Advocacy”, Greg Payne
Maine Law Review
Keynote: A Call to Housing Advocacy
Suggested Revisions In Maine's Planning And Land Use Control Enabling Legislation—Part Ii, Orlando E. Delogu
Suggested Revisions In Maine's Planning And Land Use Control Enabling Legislation—Part Ii, Orlando E. Delogu
Maine Law Review
The process which transfers land from its natural or an unintensively used agricultural state to house lots, shopping centers, or industrial sites is often referred to as land subdivision. No more long-lasting or fundamental series of changes with respect to the land can be imagined; yet the process in Maine is not only unregulated by the state and by most local levels of government, but is not at present capable of being regulated in any meaningful sense of the word. No state statutes exist which impose even the most reasonable standards, limitations, or procedural safeguards on either the process of …
The Law Of The Land: Development Legislation In Maine And Vermont, J. Jackson Walter
The Law Of The Land: Development Legislation In Maine And Vermont, J. Jackson Walter
Maine Law Review
In recent Maine and Vermont environmental protection legislation, desecration of the landscape has emerged as an issue as controversial as pollution of water and air. Traditional techniques of land use regulation operate locally, some say parochially, without any regular regard for Earth Day or statehouse politics or even administrative fair play. The trend in northern New England to adopt state-level standards totally changes the business of land development. And statewide rules are not the end; national land use standards are imminent. A report by the President's Council of Environmental Quality recommends federal controls within areas of critical environmental concern, such …
Contract Zoning: A Flexible Technique For Protecting Maine Municipalities, Maine Law Review
Contract Zoning: A Flexible Technique For Protecting Maine Municipalities, Maine Law Review
Maine Law Review
Since the constitutionality of comprehensive zoning plans was upheld by the 1926 United States Supreme Court decision in Euclid v. Ambler Realty, municipal zoning has become an acceptable, indeed a necessary, fact of life. Maine, as well as most states, has enacted zoning enabling legislation pursuant to which many Maine municipalities have adopted zoning ordinances. The standard zoning approach which has evolved since Euclid has been based largely on the concept of uniform gridiron districts which conform to a legislatively preconceived comprehensive plan intended to assist municipalities in maintaining an orderly growth. These comprehensive plans, however, frequently have become a …
Maine's Public Lots: The Emergence Of A Public Trust, Lee M. Schepps
Maine's Public Lots: The Emergence Of A Public Trust, Lee M. Schepps
Maine Law Review
Maine's public lots were originally reserved from conveyances of townships of public domain and were held by the state for the benefit of schools in the towns which would or could someday be created among the unorganized townships of the state. Many towns came into existence and inherited their public lots for the purposes for which the lots were reserved. Unlike many other states, however, almost half of the land area of Maine has never been incorporated into towns. Because of the great number of townships which have never been incorporated into towns, there are now approximately 400,000 acres of …
Nineteenth Century Dams And Twentieth Century Problems: Commentary On A Statutory Solution, G. Graham Waite
Nineteenth Century Dams And Twentieth Century Problems: Commentary On A Statutory Solution, G. Graham Waite
Maine Law Review
In times past streams were commonly dammed to provide water power for machinery, improve navigation, or serve some other business purpose. The dams today pose serious problems for the public and for riparian owners along the dammed streams, problems stemming from either operation of the dams or failure to maintain them properly. The dams are operated to further the business purposes for which they were built, sometimes resulting in water levels or flows detrimental to game fish in the streams and to shoreline recreational property. When the old dams cease to be economical to operate, as often has happened, the …
A Reexamination Of Passamaquoddy V. Morton, John M.R. Paterson, David Roseman
A Reexamination Of Passamaquoddy V. Morton, John M.R. Paterson, David Roseman
Maine Law Review
In December 1975, the United States Court of Appeals for the First Circuit issued its historic decision in Joint Tribal Council of the Passamaquoddy Tribe v. Morton. That decision set in motion a sequence of events that only the most prescient of the original participants could have imagined. At its height the litigation that grew out of Passamaquoddy involved a threatened suit by the United States Justice Department on behalf of two Indian groups in Maine against the State of Maine, several of the nation's largest corporations, 350,000 residents, and scores of Maine municipalities. The plaintiffs sought possession of 12,000,000 …
Judicial Enforcement Of The Federal Restraints On Alienation Of Indian Land: The Origins Of The Eastern Land Claims, Robert N. Clinton, Margaret Tobey Hotopp
Judicial Enforcement Of The Federal Restraints On Alienation Of Indian Land: The Origins Of The Eastern Land Claims, Robert N. Clinton, Margaret Tobey Hotopp
Maine Law Review
The land claims of the Passamaquoddy, Penobscot, Oneida, Mashpee, Narragansett, and other eastern Indian tribes have recently drawn attention to the federal statute governing alienation of tribal lands upon which the claims are based—25 U.S.C. § 177. This provision conclusively established, at least in theory, the exclusive authority of the federal government to extinguish aboriginal title to land. The actual practice was quite different, however, because some of the original thirteen states, accustomed to some degree of power under the Articles of Confederation in the field of controlling tribal Indian title, did not immediately acknowledge the complete federal preemption of …
A Survey Of Eastern Indian Land Claims: 1970-1979, Tim Vollmann
A Survey Of Eastern Indian Land Claims: 1970-1979, Tim Vollmann
Maine Law Review
The eastern Indian land claims are a remarkable phenomenon of jurisprudence. Unmomentous at the time of their filing, the claims have given rise to litigation attracting nation-wide attention, judicial precedent directly affecting several dozen communities on the east coast, and debates in Congress raising political and constitutional questions that go to the heart of this nation's policy toward Indian tribes. From a broad perspective, this essay surveys the eastern land claims cases and highlights some of the resulting significant legal and political developments.
The Misuse Of Land Use Control Powers Must End: Suggestions For Legislative And Judicial Responses, Orlando E. Delogu
The Misuse Of Land Use Control Powers Must End: Suggestions For Legislative And Judicial Responses, Orlando E. Delogu
Maine Law Review
Municipal governments in almost all parts of the country are frequently inclined to exercise their police, spending, and policymaking powers in an impermissibly exclusionary manner. Their objective in many instances is simply to keep population growth and local property taxes down. In Maine these tendencies are very much in evidence. This misuse of local governmental powers is almost totally predicated on a misconception of the status of local governments and the purposes for which they exist. Local governments are not sovereign. They are not independent units of government. They are subunits of state government, creatures of the state analogous to …
Securing Solar Access In Maine, Martha Freeman
Securing Solar Access In Maine, Martha Freeman
Maine Law Review
This Comment explores the common law property concepts of nuisance, water law, and easements which arise by operation of law in order to determine the kind and degree of solar access protection they can provide Maine residential users of solar energy. The final section of this Comment proposes an express solar easement by which Maine citizens can create their own enforceable interests in unobstructed sunlight for solar energy use. In highly urbanized areas where space is scarce and already developed, the conflicts between solar energy users and other land and airspace users may be too difficult to resolve. In Maine, …
A Response To Professor Delogu: Is Impermissible Exclusion A Reality In Maine?, Madge Baker
A Response To Professor Delogu: Is Impermissible Exclusion A Reality In Maine?, Madge Baker
Maine Law Review
A basic premise of Professor Orlando Delogu's article, The Misuse of Land Use Control Powers Must End: Suggestions for Legislative and Judicial Responses, is that many Maine municipalities are using their land use regulatory powers in impermissibly exclusionary ways. Professor Delogu proposes that the legislature and courts of Maine should respond to correct the situation. This Commentary will attempt to illustrate that Professor Delogu has failed to document his premise or to define accurately the difference between permissible and impermissible exclusion. He is unable, therefore, to substantiate the need for state intervention in an area of law traditionally delegated to …
A Final Note On The Misuse Of Land Use Control Powers Must End: Suggestions For Legislative And Judicial Responses, Orlando E. Delogu
A Final Note On The Misuse Of Land Use Control Powers Must End: Suggestions For Legislative And Judicial Responses, Orlando E. Delogu
Maine Law Review
The Baker criticism of my article is flawed in several major respects. First, while tacitly accepting the basic premise of the article that impermissible exclusion may be achieved by local misuse of a wide variety of facially permissible land use control tools, Ms. Baker argues that merely because the article did not demonstrate a sufficient degree of misuse in Maine, the corrective measures suggested are unwarranted. But a full reading of the article makes clear that no such exhaustive indictment of Maine towns was intended. The article was not an empirical study. The article intended to point out a widening …
Coastal Recreation: Legal Methods For Securing Public Rights In The Seashore, Jeffrey D. Curtis
Coastal Recreation: Legal Methods For Securing Public Rights In The Seashore, Jeffrey D. Curtis
Maine Law Review
The coastal shores of the United States are a peculiar form of property in that both the littoral landowner and the general public have legally protected interests in the use and enjoyment of the land. In most coastal states the title to the land below the high-water mark is vested in the state in trust for the beneficial use of the public, subject to certain limited rights of the littoral owner. Maine and Massachusetts, however, share a unique allocation of public and private interests which vests the title to the foreshore, the land between the high and low water marks, …
The Dilemma Of Local Land Use Control: Power Without Responsibility, Orlando E. Delogu
The Dilemma Of Local Land Use Control: Power Without Responsibility, Orlando E. Delogu
Maine Law Review
Land use planning and control has traditionally been perceived as a set of issues best dealt with by local government. State governments historically have been called upon to provide nothing more than a suitable framework of planning and land use control enabling legislation. In recent years some states have sought to address land use issues having regional or statewide impact. This has usually been done on an intra-state basis, however, and meaningful interstate or multi-state approaches to land use problems, though much discussed in the literature, are almost non-existent in practice. Federal involvement in land use issues has also been …
Another Veil Of Protection For Exclusionary Zoning Ordinances: Warren V. Municipal Offices Of Gorham, Peter A. Gleichman
Another Veil Of Protection For Exclusionary Zoning Ordinances: Warren V. Municipal Offices Of Gorham, Peter A. Gleichman
Maine Law Review
In Warren v. Municipal Officers, the Maine Law Court refused to alter the rules it articulated eighteen years ago for reviewing municipal zoning decisions and reaffirmed the application of a narrow standard of review of allegedly exclusionary zoning ordinances. The plaintiffs asserted that the Gorham zoning ordinance, which prohibited them from locating a single-unit modular home' on their land and restricted such units to mobile home parks, unconstitutionally discriminated against them. On appeal of the denial of a permit for the Warrens to place their modular home on their property, the Superior Court held that state statutes regulating the construction …
Supplements To Environmental Impact Statements: Implementation Of The Standards Set By The Council On Environmental Quality, Dale Lynn Gavin
Supplements To Environmental Impact Statements: Implementation Of The Standards Set By The Council On Environmental Quality, Dale Lynn Gavin
Maine Law Review
Environmental impact statements (EISs) are prepared before any major federal project is undertaken, as required by the National Environmental Policy Act (NEPA). An original EIS may become obsolete if a Project's operation later changes in any significant way, or if previously unsuspected environmental impacts are later discovered. When either of these two events occurs, compliance with NEPA demands that a supplemental EIS be prepared to focus on the changes. The decision whether a supplement is required in any particular situation is guided by standards set by the Council on Environmental Quality (CEQ). In addition, some federal agencies have promulgated their …
Deinstitutionalizing The Mentally Retarded In Maine: The Inevitable Face-Off With Zoning, Pamela D. Albee
Deinstitutionalizing The Mentally Retarded In Maine: The Inevitable Face-Off With Zoning, Pamela D. Albee
Maine Law Review
In July 1978, agencies and officials of the State of Maine entered into a federal consent judgment which terminated a class action lawsuit that had dragged on for three years. The consent judgment in Wuori v. Zitnay detailed a comprehensive plan designed to bring about speedy and meaningful relief to the plaintiff class: mentally retarded citizens of Maine involuntarily confined to Pineland Center, Maine's principal institution for the mentally retarded, and certain others who were conditionally released from Pineland and in community placements. The relief granted was a right to be provided the least restrictive and most normal living conditions …
Stewart V. Inhabitants Of Durham: An Exclusionary Purpose Ignored, Peter Alexander Meyer
Stewart V. Inhabitants Of Durham: An Exclusionary Purpose Ignored, Peter Alexander Meyer
Maine Law Review
Exclusionary zoning of mobile homes has become an increasingly important issue in Maine because of escalating costs of conventional housing and rising unmet housing needs. Although towns may regulate mobile home or any other housing use in order to foster public health, safety, morals, or general welfare, they may not enact a zoning ordinance to exclude people of lower income in an attempt to avoid the "increased governmental costs and the stresses upon public services which generally accompany such an incursion." In Stewart v. Inhabitants of Durham, the Maine Supreme Judicial Court was confronted with an exclusionary purpose in a …
Local Land Use Controls: An Idea Whose Time Has Passed, Orlando E. Delogu
Local Land Use Controls: An Idea Whose Time Has Passed, Orlando E. Delogu
Maine Law Review
The suggestion that local land use control powers are not working well—that they may not be susceptible to modest but useful reforms or modifications and thus ought to be more drastically altered or abandoned altogether—is not new. Beginning nearly twenty years ago with Richard Babcock's publication of The Zoning Game, the literature and case law in the field is rife with express and implied suggestions that too much land use control power has been given to local governments. More recently Professor Jan Krasnowiecki suggested we abolish zoning, and the New Jersey court in its latest Mount Laurel decision underscored the …
The Public Trust Doctrine In Maine's Submerged Lands: Public Rights, State Obligation And The Role Of The Courts, Mitchell M. Tannenbaum
The Public Trust Doctrine In Maine's Submerged Lands: Public Rights, State Obligation And The Role Of The Courts, Mitchell M. Tannenbaum
Maine Law Review
The State of Maine has within its borders over three thousand miles of coastline and numerous navigable rivers and lakes. The productive use of these waterways and the lands which lie beneath them historically has been linked to the quality of life within Maine and continues to be essential to the social and economic development of the state. Both the state's control over its thousands of acres of submerged lands and the public's right to use these lands derive from what has come to be known as the "public trust doctrine." The basic tenet of the doctrine is that the …
Wilderness, Trust, And Finality: The Baxter State Park Snowmobile Dispute, Ellen Kandoian, Brooke E. Barnes
Wilderness, Trust, And Finality: The Baxter State Park Snowmobile Dispute, Ellen Kandoian, Brooke E. Barnes
Maine Law Review
The recent controversies surrounding the use of snowmobiles in Baxter State Park exemplify the human essence of the trust relationship and the law's awkwardness in addressing the inherently nonlegalistic principles of trust. Baxter State Park is an area of 201,018 acres in northern Maine, purchased by former Governor Percival Proctor Baxter and then donated to the State of Maine in trust. The park includes Mount Katahdin, the highest mountain in Maine and the head of the Appalachian Trail. As Chief Justice McKusick wrote in a recent decision construing the trust, "in its combination of size, uniqueness, permanence, and vision, his …
Managing The Cumulative Effects Of Coastal Land Development: Can Maine Law Meet The Challenge?, Alison Rieser
Managing The Cumulative Effects Of Coastal Land Development: Can Maine Law Meet The Challenge?, Alison Rieser
Maine Law Review
Following a period of slow economic growth for the State of Maine in the early part of this decade, improved economic conditions and new demographic trends have renewed the demand for commercial, residential, and recreational development in coastal communities across the state. For many years, Maine has tried to stimulate growth in its communities. Now, many of its coastal towns face a huge development boom, particularly in the southern and mid-coast areas, in communities such as York, Wells, Ogunquit, Kennebunk, Kennebunkport, Portland, Camden, and Belfast. These towns are struggling to find ways to control the increasing density of development along …
General Discretion Under Maine's Site Location Of Development Law, Tybe Ann Brett
General Discretion Under Maine's Site Location Of Development Law, Tybe Ann Brett
Maine Law Review
The 1960s brought nationwide concern about the environmental impact of post-World War II development and industrial growth. Efforts to protect the environment took many different forms. Part of Maine's response to the growing need for environmental improvement measures was the Legislature's enactment in 1970 of the Site Location of Development Law (Site Law). The Site Law gives the state control over the location of developments that would substantially affect the environment, rather than leaving such decisions to single towns and individual developers. The Law also addresses concerns beyond those dealt with in air and water pollution control legislation. The Site …
Construing "Consideration" In Maine's Recreational Use Statute: Robbins V. Great Northern Paper Co., Russell B. Pierce Jr.
Construing "Consideration" In Maine's Recreational Use Statute: Robbins V. Great Northern Paper Co., Russell B. Pierce Jr.
Maine Law Review
Since 1961, when the Legislature enacted the original version of Maine's "recreational use statute," the Maine Supreme Judicial Court has had little opportunity to construe the statute's several components. The recent case of Robbins v. Great Northern Paper Co., however, allowed the court to interpret the "consideration" exception of the statute for the first time. In a 4-3 decision, the Maine Supreme Judicial Court, sitting as the Law Court, ruled that a $95.00 annual rental fee for noncommercial, recreational use of a lot on the defendant's property did not constitute "consideration" so as to fall within the exception to landowner …
Shoreline Access In Rhode Island: A Case Study Of Black Point, Michael Rubin
Shoreline Access In Rhode Island: A Case Study Of Black Point, Michael Rubin
Maine Law Review
Access to the shoreline in Rhode Island has been a strong tradition since the colonial era. However, with increasing development pressures on the formerly rural shore areas, especially in the region of the state commonly called "South County," it was only a matter of time before public and private interests collided over the diminishing resource. That inevitable collision occurred at a particular piece of shorefront property known as Black Point, in the Town of Narragansett, when a developer purchased this large tract of ocean-front property and proposed the construction of luxury condominiums. The project would entail the closing of an …
Rethinking The History Of The Seventeenth-Century Colonial Ordinance: A Reinterpretation Of An Ancient Statute, Mark Cheung
Rethinking The History Of The Seventeenth-Century Colonial Ordinance: A Reinterpretation Of An Ancient Statute, Mark Cheung
Maine Law Review
In 1648, the Massachusetts colonial government ordered into print The Book of the General Laws and Libertyes that included an ordinance, commonly known as the Colonial Ordinance. The Ordinance extended private seashore property rights to the low water mark but to no more than one hundred rods beyond the high-water mark. The 1648 Ordinance replaced an earlier version enacted in the Body of Liberties of 1641. While both versions of the Ordinance enumerated public rights of fishing, fowling, and navigation in the foreshore, the 1648 Ordinance provided the critical language extending the private boundary to the low water mark. Prior …
Expanding Public Access By Codifying The Public Trust Doctrine: The Massachusetts Experience, William L. Lahey, Lauren Sandler Zurier, Kenneth W. Salinger
Expanding Public Access By Codifying The Public Trust Doctrine: The Massachusetts Experience, William L. Lahey, Lauren Sandler Zurier, Kenneth W. Salinger
Maine Law Review
The Commonwealth of Massachusetts is dramatically expanding public access to the coast through statutory and regulatory codification of the public trust doctrine. Is this legislative and administrative experiment relevant to other states, particularly to Maine? The initial answer to this question may depend on the meaning of the Bell v. Town of Wells decision. For better or for worse, Massachusetts jurisprudence set the course followed by the majority of the Maine Supreme Judicial Court in Bell. To some, including several of the authors in this symposium, the bearing of the Massachusetts courts leads to a civic wasteland where the public's …
Intellectual Indifference—Intellectual Dishonesty: The Colonial Ordinance, The Equal Footing Doctrine, And The Maine Law Court, Orlando E. Delogu
Intellectual Indifference—Intellectual Dishonesty: The Colonial Ordinance, The Equal Footing Doctrine, And The Maine Law Court, Orlando E. Delogu
Maine Law Review
Perhaps the most disappointing aspect of the recent Bell decision was the fact that it was 4-3, that significant public interests were lost because a bare majority refused to examine, in the detail necessary, the Colonial Ordinance, old and new United States Supreme Court cases, Maine law, or the reasoning of their own colleagues who filed a compelling dissenting opinion in the case. A mere recitation of the dissenting opinion would serve no useful purpose—it is a part of the public record; its rationale speaks for itself. Had the rationale of the dissent been adopted by the majority it would …