December 9, 2014

Overseeing Natural Gas & Other Private Sector Projects

Philip Saucier, Esq.

Maine Rural Water Association

Agenda

• FOAA

• Land Use & Planning Tools – General

• Land Use & Planning Tools – Natural Gas• Phil Saucier

Integrity of the Governmental Process

• Conflicts of Interest

• Relationships

• Bias

Maine Freedom of Access Act

• Public Records• Public Proceedings

Responding to a FOAA Request

• Acknowledge request and provide an estimate of time and cost within 5 days

• Denial in writing within 5 working days

• Locate responsive records and redact exempt information

• Respond to requester with the documents within a reasonable time

• Schedule inspection, conversion, or copying during reasonable office hours

Public Records Exceptions

Common Exceptions

• Records designated confidential by statute• Statutory exceptions include personnel records, certain TIF submissions,

forest management plans (tree growth and open space programs), poverty abatement records applications, and certain GA applications

• Information contained in a communication between a constituent and an elected official if the information: is of a personal nature including medical information, credit or financial info, personal history, social security number, or complaints, charges of misconduct or other materials pertaining to disciplinary action.

• Juvenile records

• Investigations

Fees• $15/hour (up from $10) after the first hour for time spent searching,

retrieving, compiling or redacting• Reasonable fee for copying; actual costs for conversion and mailing

• If estimate of costs is greater than $30 (up from $20), must notify requester before proceeding; if costs exceed $100, payment in advance can be required

• Fee waivers can be granted if requester is indigent, or the agency or official considers release of the public record to be in the public interest because doing so is likely to contribute significantly to public understanding of the operations or activities of government, and is not primarily in the commercial interest of the requester

Development Review Building Blocks

• Comprehensive Plan• Zoning Ordinance• Site Plan and

Subdivision Ordinances• Building Permits

Municipal Boards and Officials

• Code Enforcement Officer• Zoning Board of Appeals• Planning Board

Variances

• Undue Hardship

• Practical Difficulty

• Disability

Specific Planning Tools

• Conditional and Contract Zones• Impact Fees• Moratoria

Specific Planning Tools- Conditional and Contract Zones

 

Specific Planning Tools-Impact Fees

 

Impact Fees Continued

 

Specific Planning Tools- Moratoria

Requirements:

• Necessity

• Definite Term

30-A M.R.S. § 4356

Legal Considerations

Conditions of Approval

Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586 (2013)• The government must show that there is a nexus

and rough proportionality between a demand or condition of approval for a landowner and the effects of the proposed land use. 

Legal Considerations

Eminent Domain- Economic Development

Kelo v. City of New London, 543 U.S. 469 (2005)• Fifth Amendment’s public use clause allows taking of private

property to promote economic development by transferring the property to another private interest for redevelopment

BUT- see Maine law limitations on eminent domain authority enacted post-Kelo at 1 M.R.S. § 816

Natural Gas• Where is natural gas• How natural gas gets to Maine• Who the players are• Who regulates this industry

Overview of the Industry – Another View from the Web

Interstate Pipeline System

Credit: Mexico Institute (TX to Mexico) – on left; Bernard Pipeline Company – on right

NATURAL GAS INFRASTRUCTURE IN NEW ENGLAND

Credit: EIA

Maine Distribution Infrastructure

Credit: EIA on left; MPUC on right

Four Utilities or Local Distribution Companies (LDCs) are authorized to operate natural gas distribution franchises in Maine:

• Northern Utilities d/b/a Unitil

• Bangor Gas Companies, LLC

• Maine Natural Gas Corporation

• Summit Natural Gas of Maine,

Inc.

Who’s on first? Regulation of natural gas service

• Key Federal Agencies

• State Government - Maine Public Utilities Commission• Public Utility Formation & Franchise Territories

Regulation of natural gas pipeline services: FERC

• Pipeline, storage, and liquefied natural gas facility construction.

• Natural gas transportation

• Certificate of Public Convenience

and Necessity

• Facility abandonment

• Wholesale rates

• U.S. points of entry

• Market manipulation

Regulation of natural gas pipelines: US Gov’t

• Federal Department of Transportation • Pipeline and Hazardous Materials Safety Administration

(PHMSA)

• National Transportation Safety Board• Commodity Futures Trading

Commission

Regulation of natural gas distribution: MPUC

• Rates and terms of service

• Sales, acquisitions or mergers

• Safety

• Gas purchasing strategies and pricing options

• Federal proceedings

Municipal Regulation of Natural Gas Facilities

• Subject to state and federal preemption• Local ordinances may control certain

facilities and the documentation of gas lines• Street openings

• Safety

Placing Pipelines in Public Ways

Natural gas pipeline utilities and gas utilities have explicit authority to lay their pipelines “in, along and under the roads and streets in any municipalities” in which they are authorized to provide service, subject to the requirement for a written location permit.

35-A M.R.S.A §§ 2302, 2304, 2501 et seq.

Regulation of activities near or in a street or public way

• Protection of underground facilities - 23 M.R.S.A. § 3360-A

• Location permit. 35-A M.R.S.A § 2503• Public hearing• May condition approval on issues related to public safety and the public’s

interest in use of the roadway.• “requirements deemed necessary in the best interests of the public safety and use of the

right-of-way so as not to incommode use for public travel.” Town of Windham v. Portland Water District, 537 A.2d 216, 220, n. 9 (Me. 1988).

Regulation of activities near or in a street or public way

• Dig Safe and notice requirements

• Documenting Pipeline Location – GIS Mapping

• Municipalities may develop a plan with various utilities for standardized horizontal and vertical locations for the utility lines.

Zoning and Planning

• Safety• Risk of explosion and fire• Maintenance inspections• Construction Impacts

• Above ground facilities• Location• Aesthetic Impacts• Noise impacts• Construction Impacts

Disclaimer

This presentation and the information provided does not constitute professional legal advice. It does not form a relationship and cannot take the place of consulting directly and individually with experienced and knowledgeable counsel.

The information presented today represents the opinions of the individuals on the panel only. It is not intended to represent the opinion or position of the law firm or any present or future client of Bernstein Shur.

Thank youPhilip Saucier, Esq.

psaucier@bernsteinshur.com

207-228-7160