Agenda - Planning Commission - 02/05/2015

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Zoning Bulletin December 25, 2014 1 Volume 8 1 Issue 24 MAINE (11/04/14)—This case addressed the issue of whether Maine's Ag- ricultural Protection Act and/or Solid Waste Act preempted a municipal land use ordinance that prohibited solid waste processing, except subject to a conditional use permit. The Background/Facts: Since 1981, Dubois Livestock, Inc. ("Dubois") operated an agricultural composting operation in an "R-4" zone in the Town of Arundel (the "Town"). Dubois composted horse and cow manure, horse and cow bedding, and fish waste—none of which were generated on site. In 2000, the Town amended its land use ordinance (the "Ordinance") to prohibit solid waste processing in an R-4 zone, except subject to a conditional use permit. Pursuant to the Ordinance, Dubois applied for a conditional use permit from the Town Planning Board (the "Board"). The Board issued a conditional use permit to Dubois in February 2000, and reissued a conditional use permit to Dubois in February 2011. Under the 2011 conditional use permit, Dubois was required to, among other things, provide certain information documenting materials processed at its fa- cility and allow the Town's code enforcement officer and the Town planner to inspect certain parts of the facility annually. In 2012, when Town representa- tives attempted to gather information from Dubois and inspect the facility, Dubois refused. The Town's code enforcement officer then issued to Dubois a notice of violation of its 2011 conditional use permit. Dubois appealed to the Town's Zoning Board of Appeals (the "ZBA"). On appeal, Dubois admitted that it refused to comply with conditions imposed by the 2011 permit. However, Dubois argued that it was not subject to regulation by the Town pursuant to the Ordinance or the permit because state laws, specifi- cally the Agricultural Protection Act and the Solid Waste Act, preempted the Ordinance. The Agricultural Protection Act prohibits a municipality from determining that a farm's method of operations violates a local ordinance if the farm has used "best management practices." The Solid Waste Act prohibits municipal ordinances that are stricter with respect to solid waste facilities than those contained in the Solid Waste Act and the rules adopted under that Act. The ZBA denied Dubois's appeal. It concluded that neither the Agricultural Protection Act nor the Solid Waste Act preempted the Ordinance. Dubois again appealed, and the superior court affirmed the ZBA's decision. Dubois once again appealed. DECISION: Judgment of district superior court affirmed. The Supreme Judicial Court of Maine held that neither the Agricultural Protection Act nor the Solid Waste Act preempted the Town's Ordinance prohibiting solid waste processing except subject to a conditional use permit. In so holding, the court explained that a state statute would preempt a local ordinance if: (1) the legislature expressly prohibited local regulation; or (2) the legislature intended to occupy the field and the municipal legislation would frustrate the purpose of the state law. Accordingly, the Ordinance would be preempted only if the state laws were "interpreted to create a comprehensive and exclusive regulatory scheme inconsistent with the local action." Here, the court concluded that the Agriculture Protection Act did not 2014 Thomson Reuters 3