By Phyllis Austin, Maine Environmental News (www.meepi.org). 2/17/04
(Photo: Century 21 Real Estate webpage for First Roach Pond Development)
The Land Use Regulation Commission (LURC) has upheld its staff’s approval of a permit allowing Plum Creek Land Co. to alter conservation covenants at its First Roach Pond development. The unanimous vote came after commissioner Ed Laverty, admittedly "agitated" over the issue, said he was disturbed about the covenant amendment because of possible future implications for large conservation easements.
Plum Creek received a permit from the staff to change the covenants in order to bury a utility line serving the North Shore Central subdivision. The work was begun immediately -- before the LURC commission had a chance to review an appeal of the staff approval by the Natural Resources Council of Maine (NRCM).
Diano Circo, North Woods policy advocate for NRCM, asserted that what happened was the result of "very bad planning on the part of Plum Creek." What good are conservation covenants if they can be altered "for the expressed purpose for which they are created," he questioned. The legitimacy of covenants was at issue, Circo asserted.
Plum Creek attorney Jeffrey Selser contended that the company was not trying to go through the "backdoor" to accomplish the covenant change it needed. It was a unique situation – the need for an amendment – and "will never come up again," he promised. Selser emphasized that the change was "in the spirit and intent" of the covenants because 700 feet of buried utility line – instead of 4,800 feet of overhead wires -- would cause less environmental impact.
After an hour of discussion, the commission unanimously agreed with Plum Creek on the "spirit and intent" point. However the board was uncomfortable with the fact that Plum Creek had buried the line before they could hear the appeal brought by NRCM. Members agreed that it shouldn’t happen again, regardless of who the applicant is.
The chance that other developers could be encouraged by Plum Creek’s maneuver, albeit it legal, clearly worried LURC commissioners. "I would just not like anyone out there in the development community, or environmental community, to get the idea we can tell them [one thing] but they can always ‘backdoor’ it – getting amendments later," said Ed Laverty. "We have got a whole perspective of land use that’s hooked on these . . . covenants. Let’s make sure they are not paper tigers."
The First Roach Pond subdivision is a lake concept plan – a special approach to development offered by LURC in exchange for natural resource protection. The concept plan’s goal is to balance conservation and development around lakes and ponds for the long-term, if not in perpetuity (depending on the individual plan).
The First Roach project, approved by LURC on Jan. 24, 2002, provides for the permanent protection of 11.7 miles of shoreland and 1,179 acres along the pond and North Inlet. Deed restrictions protect 160 acres; a conservation easement protects 525 acres in perpetuity ; and conservation covenants cover another 494 acres. The covenants are held by Plum Creek, the homeowners’ associations and individual camp lot owners. LURC must approve any amendments to, and has the authority to enforce, the terms of the covenants.
Plum Creek got into trouble with LURC once it started the development. A 1.5-mile above-ground utility line to serve the 32-lot North Shore West subdivision was installed in the fall of 2002 without a permit. Last May, the company agreed to pay a civil penalty of $4,000 for the violation, and LURC issued an after-the-fact permit.
Then Plum Creek determined that it needed to change the path of a utility line serving 20 lots within the North Shore Center subdivision. The company petitioned LURC to amend the conservation covenants to bury the line in a former skid trail.
(From Century 21 Real Estate webpage for First Roach Pond Development)
On Aug. 26, the LURC staff approved the amended covenants. NRCM appealed the staff’s decision on Sept. 12, arguing that the change would diminish the conservation values of the covenants. Thus, the council said, the amendment would undermine the balance between conservation and development and set a bad precedent for future conservation easements.
At the LURC meeting last week, agency counsel Jeff Pidot advised the panel that the question before members was whether the change did in fact violate the "spirit and intent" of the covenants. If there were one negative vote cast, it would mean a denial of Plum Creek’s amendment permit, since the commission had only four members present (a bare quorum). In that event, the line would have to be removed and the "amendment undone," Pidot said.
Ed Laverty scolded Plum Creek for the way it handled the matter. "One of the things that disturbs me is that Plum Creek is a leader of land management in the state of Maine," he said. "It really irks me that in a matter of months, after approval of the conservation plan, we find Plum Creek coming forward seeking a modification of these covenants. Given the length and breadth of the debate that took place on that day [of a public hearing], it is insensitive, to say the least, and I think it demonstrates lack of planning on the part of Plum Creek."
"The larger issue – is the message – we’re sending to other developers," Laverty reiterated. "Are we just going to issue these approvals . . . and modify them as we go along?" He wondered whether the public interest in the covenants "would be lost. I’m concerned," Laverty said. "I’d hoped better from Plum Creek."
Laverty’s colleague Steve Wight was supportive of Plum Creek’s amendment. He suggested the commission "could look [at changing the covenant to allow a buried line] as a [conservation net] benefit."
The covenant amendment might be reasonable under the circumstances, Laverty granted, after further discussion. But he remained troubled that "the ink was hardly dry on the concept plan before the request to modify the covenants . . .We are relying maybe wisely but maybe too exuberantly on these conservation easements and covenant restrictions," he said, referring to various large-scale projects in the North Woods. They "have to have teeth, some real meaning for the public interest to be served," Laverty added.
Plum Creek’s Selser affirmed that Plum Creek had geared up to lay the utility line prior to receiving the amendment permit. Then, work on the line itself began quickly, he said, explaining that Plum Creek fast-tracked the project "to beat the frost." Selser said he notified Plum Creek of the appeal in timely fashion.
Jeff Pidot pointed out that one of his objectives as LURC counsel is to preserve for policymakers their prerogative. "Their prerogative here is not preserved if the project is completed before the appeal is heard," he reminded the parties. Pidot said he shared "the blame" for the situation at hand. "It’s a learning experience for me, and I hope the staff and the commission and Plum Creek. If we’re going to amend something . . . the commission has to weigh in on it or at least not sign an amendment until the appeal [is considered]," he added.
Long-term commissioner Theresa Hoffman, who was attending her last LURC meeting, said the matter put the commission "in a compromise position." If she were not leaving LURC, she too would be concerned about setting a precedent with the covenant amendment.
Jeff Selser reminded the commission that Plum Creek was incurring more expense by burying the line than running it overhead. He understood the point about preserving the public interest, he said, and acknowledged that the public might not understand Plum Creek’s reasoning behind the covenant amendment. "Anything we can do to show our thinking we will," he offered. The company has already held meetings with current subdivision owners to explain the situation.
Diano Circo said NRCM did not necessarily want to see the buried line dug up. "I understand we need to be flexible." However, he stood by his position that there has been a loss of conservation value and argued that steps should be taken to add back that conservation value – as determined by LURC.
Chairman Bart Harvey said LURC might want to change the rules to make sure that a covenant amendment permit request be handled at the commission level, rather than the staff level. Laverty and Wight agreed. Wight observed that the commission’s regular monthly meetings offer the public a time to weigh in on proposals such as Plum Creek’s.
"We’re all a little nervous about making changes," said Harvey. As a practical matter, he didn’t see a problem with the amendment, but conceded that it did raise philosophical issues. "I, for one, as commissioner, will not be satisfied unless the infrastructure [of a development project such as First Roach Pond] is as elaborated as possible" before the necessary approvals are issued by the agency, Harvey said.
New LURC nominees
At the next LURC regular meeting, the board may be up to full membership for the first time in months. The seven-member commission needs four new members, and Gov. John Baldacci posted his nominations on Feb. 12. They are Steve Kahl of Old Town, a professor of water resources at the University of Maine at Orono; Rebecca Kurtz of Rangeley Plantation, the invasive plant program coordinator with the Rangeley Lakes Heritage Trust; Jim Nadeau, the chair and the first assessor of Winterville Plantation and town manager for the town of Eagle Lake; and Carol Murtaugh of Lubec, a nursing professional.
Legislative confirmation hearings on the nominees will be held within the month.Click here for large topo map of First Roach Pond area
Go to archive of Phyllis Austin Reports for Maine Environmental News (www.meepi.org).