Agenda - Planning Commission - 05/05/2011

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March 25, 2011 1 Volume 5 No. 6 Zoning Bulletin MDOT permit. The Board eventually approved Barnett's subdivision ap- plication. However, the Board later found that Barnett violated the Ordi- nance because he failed to fully comply with two of the MDOT permit's special conditions. The town filed a land use complaint in the district court. It alleged, among other things, that Barnett violated the Ordinance by not fully complying with the special requirements of his MDOT highway en- trance permit. The court entered judgment against Barnett. Barnett appealed. He did not challenge the Ordinance's requirement that he obtain an MDOT permit. Rather, he contended that the town did not have authority to enforce the conditions of the MDOT permit once it was issued. He said this was because the enforcement function had been preempted by state law and reserved to MDOT. Accordingly, Barnett argued that he fully complied with the Ordinance when he sub- mitted the permit with his subdivision application. DECISION: Affirmed. The Supreme Judicial Court of Maine disagreed with Barnett. It held that the town had the authority to enforce the conditions of Barnett's MDOT permit. The court acknowledged that MDOT had the sole authority to issue the required permit initially. However, it found nothing in the governing statute-23 M.R.S. § 704—reserved to MDOT the exclusive authority to enforce the permit once it had been issued. Rather, the court found § 704 contemplated "shared responsibility for the enforcement of high- way entrance standards between MDOT and the municipality involved." Furthermore, the court said that under the town's home rule author- ity, the Ordinance was presumed to be valid unless: it purported to "ex- ercise a power or function expressly denied to the [t]own by statute"; or "if enforcement of the Ordinance `would frustrate the purpose of any state law."' In this instance, found the court: "the [t]own's enforce- ment of Barnett's MDOT permit requirements further[ed], rather than frustrate[d], the purpose of 23 M.R.S. S 704." As such, the court con- cluded that the town's enforcement of the permit was a "valid exercise of the [t]own's home rule authority." See also: Damon v. S.D. Warren Co., 2010 ME 24, 990 A.2d 1028 (Me. 2010). Case Note: The court noted that MDOT could have taken enforce- ment action against Barnett if it chose. However, in enacting § 704, the court found that "the Legislature did not intend to render the 10 © 2011 Thomson Reuters