Gray's
Comprehensive Plan still fails
By Elizabeth Prata
Gray--What would you do if your child worked for two
years on a project, sent it to the teacher for a grade
and it came back flunked? What would you do if your
child decided that the report was good enough, the
teacher doesn't know anything anyway, and they won't
spend one more minute on it?
That's what Gray did.
Between 2001 and 2003 the Town worked on updating
their Comprehensive Plan. Consultants were hired,
committee members toiled, municipal officials devoted
time working with and facilitating the Comprehensive
Plan Committee members' discussions. Input was solicited
from the community-at-large, and homework was completed
by the members through the dark of night and into
the day. After all this, a 160-plus page document
was spiffily bound with color maps and nifty tables,
and it was sent off with a smile to the State Planning
Office (SPO).
In August, with fanfare and a flourish, the Council,
under the leadership of Chair Pam Wilkinson, adopted
the Plan, and said, "We have also recognized
that it is imperative to keep this a living document,
one that guides our daily work in the Town."
A few months later, the Plan was pronounced dead.
Matthew Nazar is Director of the Land Use Program
at the State Planning Office. He is on the SPO team
that reviews Comprehensive Plans and works with municipalities
to coordinate their land use programs with State Smart
Growth and Growth Management principles and federal
policies, programs, regulations and investments. The
SPO Land Use Team is responsible for reviewing local
comprehensive plans and growth management programs
for compliance with the Planning and Land Use Regulation
Act (30-A M.S.R.A.§4301 et seq - also known as
the "Growth Management Act"), and advising
communities on how specific elements of their plans
and programs can be brought into compliance with the
Act.
Mr. Nazar sent the Town Planner, Richard Cahill, a
letter in March 2004. Mr. Nazar wrote, "Unfortunately,
while the plan provides guidance to community leaders
on many topics, the State Planning Office finds the
Comprehensive Plan, Gray, Maine adopted August 5,
2003, with an accompanying Town of Gray, Capital Investment
Plan revised December 2003, to be inconsistent with
Maine's Growth Management Act (the Act)." There
were fourteen inconsistencies outlined in the letter,
as well as recommendations to bring the Plan up to
consistency with State land use laws. Mr. Nazar said
that with one inconsistency regards formatting of
the Plan while thirteen of the fourteen inconsistencies
are substantive.
Asked of Planner Mr. Cahill if there has been any
further work done over the last two years to comply
with the inconsistencies, Mr. Cahill said that the
person to speak to would be Manager Mitchell A. Berkowitz.
Mr. Cahill said that at one point Mr. Berkowitz and
the RGK Consultant met with Mr. Nazar, to determine
whether the cost and the benefits to complying would
be worth pursuing. Asked if he attended the meeting,
Mr. Cahill said, "I do not remember if I sat
in on that or not."
Mr. Nazar remembers, the Planner was there and Mr.
Nazar said, "As I recall, the meeting was in
the Spring of 2004 in Gray." Further, "In
order for the comprehensive plan to be found by SPO
to be consistent with the Growth Management Act, each
of the inconsistencies would have to be addressed.
Each inconsistency listed in the letter includes a
corresponding recommendation that is one way that
the municipality may address the inconsistency. The
municipality may choose to address the inconsistency
in another way and propose that to SPO for review,"
Mr. Nazar said.
The problem is, the review is good for two years,
or further work on the Gray Comprehensive Plan by
the SPO will have to be sent back to the beginning
of the process and the Plan reviewed in its entirety
all over again, along with other agencies' input.
The two-year date is March 16, 2006.
An outcome of the meeting between the Planner, Manager,
Consultant and Mr. Nazar, Mr. Cahill said, is that
"I think the Manager decided not to pursue anything
further with it," which would be unusual, since
in Mr. Nazar's estimation, "most towns (I'd estimate
80-90%) meet with SPO staff and try to resolve the
issues. There is no requirement that towns do so and
the only consequence is an increased exposure to litigation
against the local zoning ordinance, rate of growth
ordinance, or impact fee ordinance."
The increased exposure to litigation Mr. Nazar describes
is that if Gray's ordinances are challenged in court,
there is a greater chance that they could be invalidated
by the court in part or in whole because the Town
has a non-compliant Comprehensive Plan.
Mr. Nazar continued, "If the town is comfortable
with that increased exposure and feels that they could
answer any issues that may come up in court, assuming
a judge would allow them to counter SPO's finding,
then it is the municipal prerogative to take that
action."
Manager Mr. Berkowitz said, "At the time there
was much discussion by the Council. In summary the
then Council indicated that they did not want to pursue
the 14 inconsistencies at that time and let it be
known to the Plan Committee and the Manager. (Both
the Planner and myself did meet with the SPO and reported
back to the Council our discussions)."
Mr. Berkowitz continued, "Ultimately the Council
made the assertions that it was the Comprehensive
Plan as adopted by the Town, created and formatted
by the Town for Town use as a guiding tool and that
the the Plan should not be altered to satisfy the
state, especially in light of the fact that only six
communities in the state at that time had plans that
were deemed consistent. Lastly it was felt that at
some future time the remedies could be made since
an interim update would be due in 2008 ( now only
two years away!) Staff is ready to address this issue
if this Council believes otherwise."
