By Phyllis Austin, Maine Environmental News (www.meepi.org). 4/23/04
As the planning and zoning board for half of Maine, the Land Use Regulation Commission (LURC) would appear to have enormous clout over activities in the unorganized territory. But in recent years, there have been crippling budget and staff cuts, loss of statutory authority and lack of visionary leadership. The small agency has been whittled down now to the point that its relevance is being questioned -- from outside and within.
"LURC is not at the center of action anymore, except with major subdivision proposals," says Cathy Johnson, North Woods project director for the Natural Resources Council of Maine (NRCM). "It’s not playing the role it could." Likewise, Jym St. Pierre, a LURC staff member in the 1970s and 1980s and now Maine director of RESTORE: The North Woods, asserts that LURC "unfortunately has largely become irrelevant in the debate over the North Woods. Unprecedented changes are occurring, and LURC is hardly a player," he says.
Both environmentalists agree that LURC has sidelined itself by concentrating so much on customer service and fast permitting -- activities that satisfy individuals but distract the agency from its broader planning and policy responsibilities. Arguably, the legislature supported the narrowing of LURC’s focus when it slashed the 2004 personal services budget by 11 percent, effective July 1, 2003. It resulted in a 17 percent loss of staff.
The agency "will be reeling . . . for a long time" because of the fiscal hit, according to LURC's director, Catherine Carroll. To achieve the budget savings, she fired five senior planners. Carroll forewarned that the impact on LURC would be less efficiency and responsiveness to constituents and more regulatory violations and environmental damage in the field.
LURC had to slice $35,000 from its "capital and all other" budget this year because of the state's deficit. Occurring on the heels of the drastic loss of staff, LURC commissioner Ed Laverty said the additional cut was doubly damaging. To compensate for inadequate staff, he suggested it was more important than ever to upgrade the agency’s technical tools.
The subject of LURC's current status -- in light of dramatic land sales, economic shifts and recreational pressures in the jurisdiction -- is much on the minds of the agency's policymaking commission and the Baldacci administration.
Ed Laverty observes, "This is really a unique time in the history of LURC and the North Woods." He believes the agency must attend to "the vision thing," meaning what LURC should be doing to achieve its big picture goals. As an example, Laverty points to the large-scale, private conservation easements that affect the agency’s ability to guide the location and character of development, but the commission has not addressed the situation. "We need to push harder on what are the legitimate public interests," Laverty says.
Steve Wight, the commission’s senior member, agrees: "We need to change with the times. There should be a major review [of the agency’s management]." One has not been done since the late 1980s, when public confidence in LURC was at a low point due to the agency’s crushing workload and too-few staff. The consulting group, Peat Marwick Main & Co., evaluated the situation, bringing to light LURC’s weaknesses and problems during that era. Among the recommendations were more staff and employee training, better communications and delegation of certain responsibilities from the Augusta headquarters to regional offices.
Department of Conservation (DOC) commissioner Pat McGowan and deputy commissioner Karen Tilberg are sensitive to the lack of support for LURC's traditional role, especially during the previous administration of Governor Angus King. They are cognizant that LURC may be at a crucial crossroads and promise they will give the agency more attention. Exchanging perspectives with the DOC officials at a recent meeting, Laverty predicted that land use patterns in the North Woods will be reshaped within the next five years by private enterprise unless LURC takes assertive actions to guide development, as it is empowered to do by statute.
McGowan told the commissioners that Governor John Baldacci would be very open to the idea of helping LURC meet the shifting needs of the unorganized territory. The DOC leader foresees an increasing workload for LURC in the days ahead and promised to be aggressive in asking for greater financial resources for the agency.
Baldacci isn’t able to give LURC more staff at this time, says Tilberg. However she thinks there may be "creative ways" to help in the near term. She has suggested that working with the Land for Maine's Future Board and other agencies involved in significant land protection efforts might help LURC redefine its role and rethink its resource needs.
All parties are betting on the newly reconstituted LURC commission to elevate the agency with a can-do attitude and help solve recalcitrant problems. Four people nominated by Baldacci were recently confirmed for the board -- the largest simultaneous turnover in LURC's 30-year history. At the legislative hearing for the group, they showed great enthusiasm for their new job. The revamped commission symbolizes "a new window of opportunity" for LURC to rise to its potential, says Laverty.
The challenges ahead will not only require the commission to understand fully their specific role but to also evaluate their relationship to the staff and the difficult problems there. History has shown that LURC’s director clearly has a pivotal position between the two camps. Catherine Carroll, the first woman director, not only manages the daily operations of the agency but makes recommendations to the commission about priorities and staff resources. Like her predecessor, she could put a "stamp" on her tenure that could be as consequential as the commission’s, especially if she wants to change the agency's modus operandi from reactive to pro-active and rebuild the staff into a cohesive team.
The term unorganized territory is synonymous with the jurisdiction, the wildlands and the North Woods. It is the largest block of undeveloped forestland in the Northeast – the size of Massachusetts, Connecticut and Rhode Island combined. Except for a few communities on the fringe of the region, there is has no local government, thus the need for LURC. About 12,000 residents live in the far-flung townships, plantations and islands within LURC's jurisdiction. The region sweeps from the Western Mountains north to the Canadian border at the tip of Maine and southward to the eastern county coastal area and includes several offshore islands.
The landscape greatly defines Maine and encompasses innumerable places of the heart for residents and visitors alike – breathtaking Moosehead Lake, the remote upper St. John River area, the mighty East and West branches of the Penobscot River, "forever wild" Baxter State Park and the shimmering Downeast Lakes country.
Not so long ago, all of this territory was known as a giant "paper plantation" mostly owned by a dozen or so big corporations and families. In the late 1980s, the industry began to shrink, well-paying mill jobs left Maine, and large land sales began. Just in the last five years, more than 5,000 jobs have been lost in the forest industry. In that same period, 5.57 million acres of forestland (representing about 28 percent of Maine) have changed hands. Two million of those acres have been protected from development by conservation easements. Yet more than eight million acres of forestland remains vulnerable to conversion.
Old and new timberland owners, among them unidentified investor groups, have increasingly become real estate developers. They have discovered that they can rake in impressive profits from subdividing their lands on attractive lakes or ponds instead of keeping it in productive timberland management. The sales have resulted in a fragmentation of ownership into smaller and smaller parcels with a variety of non-timber uses.
Building can be proposed for anywhere in the unorganized territory because LURC has declined to zone areas where development is banned. Large and small subdivisions with year-round homes, road, and utility services, are inching toward the core of the wildest country left in Maine. Housing units in the jurisdiction have increased 42 percent over the past 20 years. The traditional access to the North Woods in the Moosehead Lake region was Greenville. But that "gateway" has moved 18 miles north to the former outpost of Kokadjo, where Plum Creek Timber has created an 89-lot subdivision on First Roach Pond (See Phyllis Austin report). With a freshly paved road and utility services, Kokadjo is the new passage to the remote north and a new bedroom community to Greenville. The First Roach Pond development is the largest subdivision ever approved by LURC in the unorganized territory.
LURC has strict laws regulating building and subdivisions, but there are alternative avenues to those rules that landowners are using more for large-scale developments. The Lake Concept Plan process paves the way for significant subdivisions on water bodies in exchange for a "balance" of conservation. The Planned Development Subdistrict (D-PD) process allows for the creation of large facilities that require specific resources, such as mountains for skiing or wind for power generation. The D-PD permit does not require a conservation component.
Most recently, LURC approved the creation of a new alternative for developers – so-called "minor" (or Level II) subdivisions, with a limit of five lots and no land use rezoning requirement. The change fits in with director Carroll’s drive to facilitate faster permitting to control the backlog of development applications and relieve the thin staff’s workload.
How far LURC will go to appease developers – and erode the character of the wildlands – is a question that begs an answer more than ever. The issue is not just about the sheer number of new buildings but also the kind of houses. The trend seems to be more toward year-round rather than seasonal homes. Plum Creek's First Roach Pond lots quickly sold for $60,000 to $115,000 and the houses being built there appear to be year-round, not the frill-less seasonal camp of the past. Mansions are also sprouting up along lakefronts and mountain slopes. Two other lake concept developments in the works – at Brassua Lake near Rockwood and Whetstone and Foss ponds near Abbott – should say more about the "gentrification" of the woods.
Conservation watchdogs have raised important policy issues for the commission and cautioned that other large landowners undoubtedly will be closely watching . . . as they decide wether to continue managing their land for timber or get into real estate development. Some of the questions that environmentalists have asked are relevant for the new commission to consider in light of the work ahead of them:
Do the lake concept projects strike a true publicly beneficial balance of development and conservation? Does almost doubling the amount of development on a lake or pond constitute "orderly growth", as defined in LURC’s Comprehensive Land Use Plan (CLUP)? Do lake concept plans with major subdivisions create rural suburbanization and "bedroom" communities to nearby towns or regional service centers? What is the impact of major subdivisions created on the doorstep of state and nationally significant remote recreation areas? How far should services, such as electricity and utility lines, go to seasonal or year-round developments in remote areas? What is the impact of increasing day use and motor access on the backcountry experience in the unorganized territory? Is the "adjacency rule" that has protected the core of LURC territory from development being eroded by the special avenues to development, such as lake concept plans? How much consideration should be given to the impact of proposed development on existing uses and resources on Class 3 lakes -- those lakes that LURC has designated as potentially suitable for development? Does the lake concept planning process need altering to allow the public to be involved in the process as equally as in other kinds of development proposals? Should LURC standardize lake concept plan conservation easements, rather than consider each application on a case-by-case basis?
(From Century 21 Real Estate webpage for First Roach Pond Development)
Much of the development at issue is occurring in the unorganized territory’s management zone -- the category LURC created for commercial timberland and where subdivision of more than two lots in five years was banned without a rezoning and permit. The lake concept plan provision provided a bigger opening into that zone, but hardly any landowner wanted to go that route – until now. The increasing development proposals through lake concept plans, D-PD subdistricts and the new minor subdivision rule challenge the original zoning. What the management zone will look like in 10 or 20 years is an important question.
The subdivision issues underscore the fact that the commission – every commission to this point -- has been too politically timid or philosophically divided to zone the jurisdiction to set-aside wilderness areas where no development can occur.
NRCM's Johnson is cautiously positive about LURC’s willingness to tackle the very tough matters awaiting attention. So far, LURC has been a low priority for the administration – indicated by the lag time in naming replacements for retiring commissioners. And there hasn’t been a real "test case" to see where the governor wants the commission to go, she says.
Jym St. Pierre wants to believe that the "new blood and energy" of the commission can make a difference between the LURC of the King administration and the LURC of the Baldacci years. However, he worries that the contentious political issues the governor is facing will keep LURC at the bottom of the administration’s agenda.
Environmentalists' guarded expectations of LURC are based on the blows the agency took under Gov. King when it was run by director John Williams. With the backing of King and DOC commissioner Ron Lovaglio (a former paper company official) Williams was successful in getting the legislature to diminish LURC's raison d’etre -- a move supported by business and industry.
Oversight of important "linear" development projects, such as power lines, pipeline and highways, was transferred to the Department of Environmental Protection (DEP). LURC's regulation of timber harvesting in shoreline zones -- authority that had greatly defined LURC -- was moved to the Maine Forest Service (MFS). LURC also stepped back from zoning deer wintering areas to allow large landowners and the Department of Inland Fisheries and Wildlife to work out cooperative agreements.
Along with losing authority, LURC also failed to address the remote ponds resource -- one of national significance. Jym St. Pierre argues that the 167 remote ponds are a feature of national significance equivalent to Yellowstone’s Old Faithful. The zoning protection LURC gave the remote ponds 30 years ago was done so at the urging of the Department of Inland Fisheries and Wildlife (IFW) and with the support of anglers.
To qualify, a pond had to be inaccessible, undeveloped and have a cold-water (brook trout) fishery. A one-half mile zone around the ponds is off-limits to two wheel-drive vehicles, and logging roads can be built no closer than 1,000 feet to the ponds' normal high water mark. The roads must be discontinued, gated, obstructed or otherwise made impassable to vehicles within three years of construction, according to the law. Yet St. Pierre said that roads "have been mysteriously showing up in a lot of remote pond zones, and ATVs are sneaking into these ponds even where there are no roads." He is critical of LURC for not taking action. The remote pond law was written before four-wheel ATVs became popular, so they can be used to reach remote ponds without violating the statute.
LURC staff numbers fluctuated under Angus King. In 1991, the number was the highest ever, at 32. In 1995, when King took office, there were 29 employees. A total of 31 LURC employees left during the six and a half years that Williams was director, though some were replaced. The current staff number is 22.5.
Williams and Lovaglio preached "customer service," in step with King’s philosophy of soft regulation. Diligent enforcement of laws was relaxed in favor of education and voluntary compliance. King, Lovaglio and Williams wanted a "friendly" LURC and as few complaints and controversy as possible.
Williams sold LURC’s philosophical and statutory changes to legislators as responsible efficiency moves that were good for the constituency of the unorganized territory. But in diminishing LURC’s authority, the agency’s role was refashioned by default.
Amid the legislative maneuverings over LURC, its oversight of development was left intact. That, in itself, left the agency with great relevancy, asserts Catherine Carroll. With development pressures remaining steady and anticipating another building boom, she thinks that LURC is in a position to shape the unorganized territory beyond what anyone may have imagined. She points to the planned build-out of the Saddleback Mt. ski area and the increasing number of major subdivisions via lake concept plans as evidence of how LURC still can make a difference on the ground.
Even LURC veterans find it hard to know where to begin in reflecting on how the agency reached the situation it is now in. The past informs the present.
LURC was born and grew up amid rancorous partisanship and never had the staff numbers or financial resources necessary to meet its stated goals, according to Fred Todd, the supervisor of planning and administration who has worked at LURC since its start in 1971. He refers back to that year when fiery Jim Haskell assumed the reins of the fledgling agency. Haskell asked lawmakers for a half million dollars to run his shop but received just enough for a modest salary for himself and one clerical employee.
Still, somehow – maybe it was LURC’s underdog status – the agency attracted smart, talented staff who proved year after year that they were impassioned about LURC's mission and potential. For staff and commission members alike, the "wildlands" symbolized a dream of landscape-scale conservation possibilities that would preserve the cherished natural qualities that made the North Woods as much a national treasure as the West’s Sierras or Canyonlands.
Photo: Bill Silliker
LURC was hobbled in its endeavors partly because it operated with just general fund support -- unlike sister agency DEP, which was linked to federal funds by virtue of its tie-in to national environmental protection programs. The forest industry was a formidable obstacle by virtue of its statewide economic power and lobbying influence. The agency was initially independent but was placed in DOC through government reorganization in 1973.
The forest industry was the leading opponent of LURC from the beginning because the vast territory proposed for regulation was commercial timberland, and the owners didn’t want the state meddling in their woods activities. A myth evolved that the agency was created to regulate the industry, and LURC and the industry did butt heads hard in the early days over standards for construction of logging roads. However, the impetus for LURC was a growing public awareness of environmental issues and a land speculation boom.
Until the 1970s, there were essentially no land use controls in the unorganized territory. State Sen. Horace Hildreth Jr. (R-Cumberland), made the first stab at regulating the region with a bill that targeted a thin corridor along lake shorelines and roads. He was motivated by personal awareness, according to a legislative history and analysis of LURC published by then-staffer Esther Lacognata in 1974. In the past, Hildreth had been counsel for the pulp and paper industry, and in that capacity realized that the owners of Maine's wildlands "were sitting on a gold mine."
Lacognata said that Hildreth knew that some landowners, not necessarily the large corporations, were "quite ready to sell their holdings to real estate developers or to enter the real estate development business by themselves or their own subsidiaries." He thought that land speculators would be attracted to the wildlands because the property taxes were low and the land use was essentially nil.
It took several efforts in the legislature from 1967 to 1971, before lawmakers had a compromise bill that could get by forest industry lobbyists. Its reach went beyond what Hildreth proposed to a land use and zoning plan for all the unorganized territory. Without the leadership of progressive Republican lawmakers, such as House majority leader Harrison Richardson, the bill wouldn’t have had a chance.
At a legislative hearing in April, 1971, Rep. Richardson (R-Cumberland) spoke plainly about the need for the bill and called a spade a spade when it came to landowner opposition. "The paper companies and the big owners, with their usual head in the sand attitude fought the original bill every inch of the way and they will fight [the current proposal] with their usual total disregard for the public's interest," he said. "They have consistently taken a position against any attempt by the people of this state to protect these lakes and these lands and they have done so even when it was squarely contrary to their own best interest. No one has any rights under any possible view of private enterprise to turn our lakes into little Lake Eries," Richardson declared.
In subsequent legislatures, unrelenting efforts were made by the industry and others to reduce or eliminate LURC. Despite constant attack, LURC's first groundbreaking effort was to establish planning and zoning standards for the jurisdiction, a mammoth undertaking. Created was a huge body of rules and regulations to guide and control everything from routine activities, such as building a camp to locating heavy industry.
A review of news reports over the years shows what a wild ride the agency had in trying to be true to its mission and in rendering decisions that often made people fighting mad. The battles played out publicly -- timber harvesting in sensitive areas, a new resort in Katahdin's shadow, deer wintering yard zoning, copper mine development, the Big A dam plan, Saddleback Mountain ski area development along the Appalachian Trail, sporting camp expansions and the creation of landfills. These struggles revealed the high level of conflicting interests in the North Woods.
Those who have followed LURC can name the different directors and commissioners through the years who were known privately and publicly as either top-notch or "deadwood." Newspaper stories and editorials attest to the best and the worst leadership, as well as to the public's divided trust and shifting confidence in the agency.
In the last 10 years, life has been Herculean for LURC. After the resignation of David Boulter, one of LURC's most effective directors, enforcement supervisor Bill Galbraith was appointed acting director. With one foot in the staff camp and the other in management, Galbraith's position was compromised from the start. Day-to-day operations became messy and bogged down. Disarray among staff became obvious. To make matters worse, there was bitter philosophical in-fighting among commission members.
Staff members tried to fill the leadership vacuum. During LURC’s review of the controversial Kenetech windpower proposal in 1994, some staff were accused of trying to dictate policy to the commission and undermining LURC’s reputation for unbiased analysis. DOC commissioner Lovaglio responded by micromanaging LURC staff.
The upshot of the situation was that staff planning analysts David Allender and Fred Griffith were removed from the Kenetech project by Lovaglio, who, with Gov. King, wanted the development approved. LURC commissioner Jim Sherburne resigned, charging that Lovaglio's "invasive behavior" violated the integrity of LURC's permitting process. Allender and Griffith resigned too. King replaced all LURC commissioners except Steve Wight, and four staff positions were cut.
Gov. King felt that LURC was too heavy-handed and enforcement-oriented. He made "customer service" and improved building permit turnaround time the guiding principles for the agency. John Williams was hired as director in mid-1995 to carry out those policies. A trained scientist, Williams alarmed environmental groups because he had closed down the Maine Low-Level Radioactive Waste Authority and acted in a similar capacity at New York's Radioactive Waste Siting Commission. Williams had been picked by King to head the Maine Waste Management Agency and then eliminated it too.
Williams told a reporter at the time that he wouldn't have taken the LURC position if getting rid of the agency had been part of the bargain. He said he would rebuild the staff into a team and restructure LURC so that it could function well. By the time he left in late 2001 to work for the forest industry, Williams had caused the staff to feel so unvalued that resignations were almost routine.
Some former LURC staffers, who didn’t want to be identified, say that Williams had poor communications with staff and "managed by walking around. He didn't want to be there," the source said. "His view of the world was so narrow. He had no vision of what LURC could be and wasn't sympathetic to the [uniqueness of] the North Woods in concrete ways. But he could walk the walk of the forest industry group."
A major upset during Williams' tenure was in the spring of 1996 when forest industry representatives lobbied three commissioners about changes they wanted to see in the Comprehensive Land Use Plan (CLUP). NRCM’s Johnson believes that LURC's current problems have roots in that situation.
The special interest lobbying was illegal because the lobbyists' calls were made after the public record was closed. Representatives of Boise Cascade, Bowater and Champion International let the commissioners know that they favored deletion of a zoning category in the CLUP called "natural character" that could be used to create set-asides, or wilderness areas. The zone had been on the books for years but never used. The environmental community was keen on LURC keeping the zone for its future potential.
Prior to the lobbyists' calls, the majority of the commissioners voted in favor of retaining the natural character zone and allowing its use without landowners' approval. But a day after calls to the commissioners, another vote was taken. The second time the vote was reversed -- 5 to 1 to require landowner approval before imposing the zone.
CLUP politics galvanized public attention statewide for months. LURC continued to be in the public eye in connection with highly contested boat launch projects on Spencer Lake and then John's Bridge in the Allagash Wilderness Waterway.
Efforts continued to be made in the legislature to eliminate LURC -- to the point in 2001 that the Bangor Daily News labeled the meddling the "kill LURC syndrome." It was supported, the News said, by "a small but energetic group looking for a single culprit to blame for the economic decline of rural Maine" that had portrayed the agency as "the epitome of heavy-handed, inflexible and unreasonable government" -- complete with "horror stories of absurd bureaucratic behavior and outrageous penalties . . . Hogwash," said the News, which supported LURC for doing a "tough job well, and when it does not, genuinely strives to do better."
As John Williams steered LURC to concentrate on permitting efficiency and streamlining the agency, the agency faded from the kind of public attention it had received in the past. The controversy surrounding Plum Creek Timber’s First Roach Pond subdivision proposal garnered coverage statewide. But when the latest big budget reduction for LURC was announced in 2003, the news media were paying less attention.
PEER (Public Employees for Environmental Responsibility) tried to raise public awareness of LURC’s cumulative troubles at the end of Williams’ tenure. Director Tim Caverly surveyed the LURC staff and reported that 86 percent of those answering thought the agency had inadequate staffing, an unfair approach to balancing development with resource protection and a director who didn't support LURC's mission. Caverly also reported that the respondents feared that combining LURC’s permitting and compliance divisions in 2000 would impair enforcement efforts.
John Williams deflected PEER's charges by revealing that only seven of 21 employees had answered the survey. But the number of staff resignations alone spoke to serious troubles at LURC, and David Tardiff gave voice to the difficulties when he resigned in May, 2003.
Tardiff, who had worked for seven years at LURC in enforcement and previously for eight years at DEP, alleged that the agency's management had "consistently impeded investigations and sidestepped environmental laws." The staff, according to Tardiff, was "often encouraged to falsify findings of fact. In order to just get a permit issued, that staff was unable to appropriately resolve legitimate enforcement cases, especially the more serious ones."
Also, Tardiff charged that many cases were "closed" with a token penalty but never truly resolved; that cases that should have been referred to the attorney general’s office were not; that management often disregarded rules that would normally insure the improper issuance of permits or approved permits after-the-fact; and that the commission had made "arbitrary, inconsistent and unfair" decisions.
"The overall effect," Tardiff asserted "was to undermine staff credibility and the validity of commission rules. In addition, the size of the budget reduction imposed upon the commission has led me to conclude that there is no one fighting for a strong agency." LURC has five field offices, and Tardiff predicted the staff cuts would prevent those offices from functioning properly.
Tardiff summarized his allegations in an editorial printed in the Bangor Daily News on June 21, 2003. PEER, trying to keep LURC issues before the public eye, publicized Tardiff’s resignation, as well as violations by Clayton Lake Woodlands (CLW) that caused significant siltation of Glazier Brook, a tributary of the Allagash River. CLW settled the case with LURC and paid a $10,000 fine. PEER warned that the settlement with repeat violator CLW would likely be the last of its kind, given the staff reductions and growing backlog of enforcement cases. (But there have been two others of note – Plum Creek’s penalty of $4,000 and Carrier Timberlands’ fine of $5,000.)
Maine PEER also revealed that in 2000 and 2001, John Williams blocked numerous cases that staff had forwarded for referral to the attorney general's office for prosecution. Only 10 such cases had been referred in the past 10 years, Caverly said. Bill Galbraith, now supervisor of the combined permitting and compliance division, affirms that "it was difficult to get the attention of John Williams unless there was a major incident," such as Cherryfield Foods' big plume of sedimentation down the Narraguagus River. Williams was more interested in customer service, Galbraith says.
There have been no enforcement cases referred to the attorney general's office under Catherine Carroll's watch. Charges for legal services began in 2003 for the first time ever, thus creating yet another financial barrier to prosecuting future environmental violations.
The LURC commission and its counsel took a cursory look at some of the allegations by Tardiff involving enforcement but then dropped it.
Reports are increasing from the field about landowners building without the required permits because they think they can get away with it, given how LURC has backed off from enforcement and presence in the field.
As for the LURC staff problems, Steve Wight says that after Williams left to take a job as president of the Maine Pulp and Paper Association, he became aware that the former director "let things fester" with staff, causing morale problems. "After [he] left, I started to hear that John would come to the office and not say hello to the staff . . . never had staff meetings. I was amazed," says Wight. "It bothers me. I pride myself on being in contact with staff . . . but never received information" about the extent of the problems, he says.
Photo: Phyllis Austin
Catherine Carroll, who had headed LURC's permitting and compliance division, was named acting director shortly after Williams left. When Baldacci was elected governor a year later, Carroll was named permanent director. "We have in Catherine Carroll a very strong, people-oriented director," says long-time commissioner Steve Wight.
Carroll, who has a biology degree from Evergreen College in Washington State, started her career in 1981 working in different parts of the country for federal and non-profit agencies. She held a variety of jobs, from studying wintering dunlin at Point Reyes Bird Observatory in California to investigating the breeding biology of pelagic (avian) species for the National Geographic Society. She was at Maine’s State Planning office for a year, then at the Department of Inland Fisheries and Wildlife and DOC before joining the LURC staff.
Carroll has been with the agency for 16 years, starting as a permitting analyst. She rose to senior permitting analyst in 1990 and was promoted to fulltime supervisor of the permitting and compliance division in 1997 and then division manager in 2001. As a manager, she worked continuously to reduce the permitting backlog (up to 600 at one time), and to simplify the applications and permitting process. While acting director, Carroll created the use of permit-by-standard to reduce the permit workload and paperwork for applicants
Staff and environmentalists were divided on Carroll's permanent appointment. Some thought she was a good choice because she was a LURC veteran, and had management experience as head of the permitting and compliance division and was good on details. Others were disappointed because they thought there were much stronger candidates from outside the agency, especially in the areas of policy and legislative strategy. They saw her appointment as proof that LURC was of minimal importance to the Baldacci administration and the DOC.
They felt that Carroll was someone who lacked the vision required to help "save LURC" and would do what she was told by superiors. Because she had spent all of her time at LURC in permitting and focusing on customer service, they thought she would be too inclined to please applicants and not be able to say "no" when warranted.
One of Carroll's first decisions as permanent director was very upsetting to the staff and to environmentalists. She targeted personnel services for the mandated 17 percent budget cut because it accounted for the largest percentage of the LURC financial pie. Carroll says she "went through a dozen scenarios" before deciding to fire five senior employees -- four of them planners from the Augusta headquarters -- to reduce the staff from 26. "It was the worst day of my career," she says. "I gutted the permitting and compliance division. The good news is that they found other jobs." (The non-planner position was restored by the legislature.)
Carroll says she had a choice between staff positions and keeping the regional field offices open. She chose the field offices, believing they are critical to the relationship between LURC and its residents. Each field office "is a gold nugget," she says, because it puts the agency close to people. Carroll disagrees with the idea held by some observers that she dismissed the senior planners because they were so expensive.
NRCM's Johnson says the loss of those experienced planners was a big loss of the agency's institutional memory. For instance, she says, when an important development project is proposed, the new LURC analysts hired to replace the senior planners have no history or context to inform their reviews, such as the controversial Grace Pond, Lakeville Plantation and Snake and Carpenter lakes development proposals. Some things "were not written down . . . yet they impact how LURC looks at things," says Johnson.
Fred Todd agrees that institutional memory is "very important." More crucial, he says, is "that we have an effective network of communication within the agency." Because of the staff’s increasing prerogative to approve or deny permit applications, it’s important that the planners and "specialists" talk to each other and mistakes aren’t made. Todd points to the former Bangor Hydro transmission line as an example of "how we can miss the boat." The staff recommended approval of the permit without it passing through the planning shop, despite the project’s environmental impact Down East. The proposal received commission approval, but the company let the permit expire. (The project is being revived.)
Carroll's staff is currently five-and-a-half positions in the planning division, 12 in the permitting and compliance division, and five in clerical and administrative support. There is no longer an enforcement division. Of the 22.5 employees, 12.5 are in the Augusta, and 10 are in the five regional offices. There are four employees in the Greenville office, two each in the Rangeley and the Ashland offices and one each in the East Millinocket and Cherryfield offices.
Carroll acknowledges that the staff is "feeling the strain" of getting up to speed again -- given the many employee departures. Fred Todd was unsure how the re-formed staff would function but says he has been impressed with how quickly the new staff is learning the ropes.
Behind the scenes, however, the staff turnovers and uncertainty about LURC's future has taken a toll on the staffs' confidence in the agency's leadership and their ability to make a difference. Some staff say that internal communications haven’t improved under Carroll. People are afraid to speak up about dissatisfactions because Carroll wants to minimize criticism. Some don't feel valued in much the same ways as they didn’t under John Williams.
They are chaffing under their new dual duties as permitters and compliance officers, saying that enforcement is taking a backseat to writing out permits. There is such a staff shortage in the regional offices that the office workload, they say, is simply out of control. Look out, they warn, for other resignations.
LURC chairman Bart Harvey concedes that LURC "has had more than our share of turnovers . . . and it makes morale difficult." However LURC is not in "a unique situation" in having to make cuts to meet budget needs, he says. "With ups and downs, people are going to be unhappy." Bill Galbraith has advised the commission that, given the situation, the board needs to address what the priorities are for the field staff.
Concerning staff communications, Carroll says her door is open. While she had not had many meetings of the full staff, she said the two supervisors have divisions meetings weekly "so there's less need to get together" as a full staff. She rarely makes decisions unilaterally, most always consulting with the staff, Carroll says. "I communicate weekly with someone on the commission, and it's not about mundane things." The commissioners know they can "call me anytime," she says.
Carroll is sensitive to criticism that LURC is too focused on permitting and not enough on planning and policy. It makes sense, she asserted, to keep working to expedite permits. Cutting down on paperwork, she contends, translates into more time for staff to work on more substantive matters. Ed Laverty, at a commission meeting last fall, applauded LURC’s success in application turnarounds but suggested that the increasingly minimal gains would suggest it is time to shift emphasis to enforcement issues.
One result of the people shortage and the emphasis on less permit review was the creation of the minor subdivision rule. It allows subdivisions of no more than five lots in specific locations to be approved without a rezoning change -- and without meeting the adjaceny rule requirement that the subdivision be adjacent to or near existing development. Williams initiated the minor subdivision law to quiet complaints about the then-existing "one size fits all" review process. The new process increases predictability and reduces processing time and cost.
Fred Todd pointed out that the change allows such subdivision in 42 towns covering a total of three towns, or 72,000 acres, within the jurisdiction. But the change is troubling to some at LURC. Commissioner Laverty, for one, is determined to keep an eye on how it’s used by developers in the next year and then review the consequences.
One of the most protective LURC regulations is the adjacency rule. Its goal is to prevent sprawl and leap-frogging development throughout the jurisdiction by limiting new building to within a quarter-mile of existing development at the fringe of the jurisdiction, where most year-round roads are located. Laverty wants to make sure that developers don’t use the minor subdivisions as "existing development" so they can penetrate the North Woods' interior.
Bill Galbraith, who has worked at LURC for more than a decade, has been particularly disheartened to see the staff turnovers, loss of statutory authority and change of priorities. At this juncture, he thinks it's crucial for the agency to determine what it "can do well, given the resources we have." He believes that "significant changes" will happen only when the commission or some outside force make it happen. "Trying to do it from the inside is next to impossible," he says.
Photo: Phyllis Austin
While not dismissing the importance of timely permit applications turnarounds and other necessary routine work, Ed Laverty said that LURC's future role in the unorganized territory should be focused far more on innovative planning and paying attention to the important changes occurring in the territory. "The stakes are too high to sit on the sidelines of the big picture decisions," he says.
How quickly the new commission can get up to speed to know what direction they want to take remains to be seen. Having four inexperienced members at once has never happened at LURC. Plus, they will be working with a staff half of which has in-depth experience and half of which is almost as new as the commissioners.
Over the years, there have been substantial changes in the business the commission handles and what decisions the staff can make. There are legal guidelines, but the Bangor Hydro transmission line review is an example of decisionmaking's gray area. Plum Creek Land Co. got into trouble with LURC earlier this year when the staff approved a conservation covenant change that the commission wanted to see after-the-fact. The commission made it clear that it expects the staff to take sensitive issues to them, even if the staff has authority to approve the details of the expansion.
Catherine Carroll says she is "not looking for the staff to do the work of the commission" but favors staff decisionmaking whenever practical within the law. In the case of Saddleback Mt., she asked the commission to let the staff handle the reconstruction of the base lodge because the project didn't involve "a material change" in the permit proposal. She is aware that "the important kind of applications we're getting, especially the larger type," may require more thought about what to take to the commission.
The new commission will be quickly facing major development proposals. In the wings is entrepreneur Harley Lee's long-awaited windpower proposal for Redington Mt., and already the Appalachian Trail Conference has gone on record against it because of the visual impacts on the A.T. Union Water Power's planned subdivision on Richardson Lake will be considered this summer. Expected also is a lake concept plan for Whetstone and Foss ponds and Western Mountains Foundation’s proposed trail and hut-to-hut recreational project.
Taking on the second prospective zoning effort and revisiting the CLUP are on the agenda. The Greenville/Moosehead region is likely to be chosen for prospective zoning because so much building activity is occurring there. Prospective zoning facilitates development in the growth areas of a town and makes it harder in less built-up or wild places.
NRCM’s Johnson gives LURC high marks for the Rangeley plan, completed in 2001. It took two years, required 50 public meetings and cost LURC untold thousands of dollars in staff time. But the process was "impressive and there was a credible and reasonable outcome," says Johnson. Implementation of the plan has gone well, in her estimation, because LURC has stood firm, turning down two building proposals in Rangeley’s outside the development zone.
Revisiting the CLUP is on the agenda. Updating the document is required every seven years. The last revision took several years to complete and raised a ruckus among different interest groups and residents of the unorganized territory. Catherine Carroll anticipates that the focus of the new CLUP will be land ownership changes, conservation easements and prospective zoning, the latter modeled by the Rangeley plan adopted in 2001.
Ed Laverty thinks the time is ripe for LURC to revisit the question of wilderness set-asides. In the last CLUP fight, environmentalists were unsuccessful in convincing the commission to use the existing natural resource zone, where development would be prohibited. They saw the zone as one that would encompass wilderness.
Although public opinion expressed at the LURC hearings on the CLUP favored designating some of the unorganized territory as wilderness, the commission declined to embrace that path in the face of property rights and forest industry opposition. Ed Laverty appreciates the political risks of raising the wilderness issue again but thinks the progress of conservation easements makes it unavoidable.
The easements by private and public entities, in effect, define the nature of future development outside LURC's purview, Laverty points out. "There needs to be a forum where we can all talk about this and address the issues. I think LURC needs to be that forum."
NRCM's Johnson is all for "moving forward to figure out how to . . . set areas off limits to development, review whether the loss of jurisdiction has harmed the natural resources and direct development to the fringe of the jurisdiction. [LURC has] the tools to ensure that large undeveloped blocks remain, regardless of ownership," she says. "They just have to use them."
In the context of the Plum Creek First Roach Pond project, NRCM advocated that the commission take time – before voting on the project – to understand thoroughly what was being proposed and what values were at stake.
NRCM contended that the Plum Creek plan had too much development and too little conservation. In particular, the organization highlighted the conservation covenants arranged between two Plum Creek entities, revealing how easements are more complex than they may appear and how important the details are.
Plum Creek Timber sold the land around First Roach Pond to Plum Creek Land, which then applied for a development permit. Part of the "conservation" approved was a conservation covenant between the two entities. It did not allow transmission lines. But Plum Creek Land changed its utility services plan and wanted to bury a line on land covered by the conservation covenant. The land entity went to the timber entity and asked to change the document to bury the line. (See Phyllis Austin report)
The timber entity agreed, causing NRCM to conclude that the relationship between the two entities was "not arm's length. The lack of arm's length transactions throws all the conservation provisions between the two companies into jeopardy," said Cathy Johnson at the time. "Who knows what they will try to change next?"
Allowing the line to be buried meant that Plum Creek could avoid running 4,600 feet of overhead transmission line – decidedly a better visual change. But at a LURC meeting in February, the commissioners made it clear they were unhappy with the amendment, and commissioner Harvey attributed the need for the change to poor planning by Plum Creek. A key reason for LURC is "to force people to do good planning," he says. The commission sent a message to developers that the Plum Creek decision didn't mean that they would allow other changes in conservation easement or covenant agreements in the future.
The Plum Creek project underscored the simmering issue of the closeness between the developer and the LURC staff in developing lake concept plans to take to the commission. The applicant and the staff go through a long planning process before the proposal reaches the policymakers or is available to the public for examination. Ed Laverty said that, in effect, the LURC staff becomes part of the developer's team.
NRCM's Johnson says the situation compromised the objectivity of the staff. "The way it's playing out, LURC is cutting deals with the applicant before the public knows," she said. She made the point during the Plum Creek case that LURC's goal is "not to make the process as fast as possible for the applicant. LURC's obligation is to preserve the natural and ecological values of the jurisdiction." Johnson suggested that LURC's decisions are flawed when the public hasn't been allowed involvement in a project until it "has essentially been blessed by LURC staff, or given enough time to evaluate applications or intervene in the proceedings."RESTORE's St. Pierre also weighed in on Plum Creek's First Roach Pond lake concept plan proposal. As a former LURC staffer he had a unique perspective on the project. He wrote a six-page letter to the commission pointing out that the deal did not strike "a reasonable and publicly beneficial balance between appropriate development and long-term conservation." He concluded that "because Plum Creek has not met the legal burden of proof, by law the commission cannot approve the application.... The Plum Creek concept plan and subdivision applications for First Roach Pond represent a stake in the heart of Maine's legendary wildlands."
When the commission recently took up Moosehead Wildlands’ lake concept plan for Brassua Lake, the same question arose about the balance of conservation and development. Again, NRCM insisted that the easements were too "lite" to meet the mandated standard of balance. Landowner Bob Linkletter of Athens has run into the question of enough conservation before his plan officially is presented to the commission. He is negotiating with the Small Woodlot Owners of Maine (SWOAM) to be the holder of the easement, and SWOAM is insisting that Linkletter increase the amount of conservation.
Fred Todd didn’t find the Brassua Lake conservation easements "alarming," because it was a Class 3 lake. But it had been "a Chesuncook or had more value for non-development…" it would have been a problem, he says. Todd puts the agency "on the upside of the learning curve" of lake concept plans. Maybe we need to look at more standardized conservation easements," he says, adding that LURC has a "short track record" with concept plans and doesn’t really know "what a headache we’re creating for ourselves."
Moosehead Wildlands’ owner John Willard made an agreement with Western Mountains Foundation (WMF) to hold the easement. Willard was a member of the foundation board at the time. LURC saw a conflict of interest, and Willard agreed to resign from the board. A potential issue remains. WMF plans to run a ski trail and build a lodge (part of its hut-to-hut project) on Willard's property.
The foundation has no track record as an easement holder -- a discomfort for environmentalists. But Steve Wight said that every holder is in the position of starting out with the first project and that shouldn't be held against a holder. In the Brassua Lake situation, the state Bureau of Parks and Lands agreed to be the backup in case WMF doesn't perform as required.
NRCM's Johnson wonders whether LURC is learning from the past. She points out that at Grace Pond, LURC accepted as the easement holder the Maine Conservation Rights Institute (MECRI), a property rights group that had never held an easement. It's leader, Robert Voight, became ill, and MECRI didn't take care of its monitoring responsibilities for the first few years. Cathy Johnson has concluded that the balance between conservation and development at Grace Pond "is turning out to be inadequate".
Steve Wight says that LURC "would like [the holder] to be above reproach" in all situations. The commission "didn't feel right" about the Grace Pond situation, but he notes that "it met the letter of the law." Johnson counters that when a conservation easement is part of a development permit -- in fact, the easement allows the development to be approved -- there should be "a higher standard" than usual. "A higher public interest exists when the easement is given as a condition of the permit," she says.
Ed Laverty praised easements as "a wonderful tool and worth [the problems]. The larger issue is using easements willy-nilly. They are contractual arrangements with benefits for landowners. We haven't paid enough attention to benefits for the public," he says. Steve Wight favors reviewing "the whole easement situation."
So far, the commission has been faced with the one landowner/one lake concept plan. It’s not out of the realm of possibility that a large landowner could come forth with a multiple lake plan. Before it sold out, Boise Cascade in western Maine was working on a 26-lake concept plan for its 656,000 acres. That mega-plan was abandoned before it reached the status of official proposal.
Wagner Timberlands is now managing that ownership for a new investor group called Bayroot LLC. A company representative has inquired at LURC about reviving the lake concept plan for Lake Moxie. Neither Wagner nor any other company has signaled LURC that they are thinking on the scale of a Boise plan. However, in this day of private "kingdom building" in Maine and other New England states and grandiose development proposals on lakes in New York’s Adirondack Park, it would be short-sighted to think that the single lake concept plan is the most ambitious project that LURC will have to deal with in the days ahead.
Go to archive of Phyllis Austin Reports for Maine Environmental News (www.meepi.org).