01-672 C.M.R. ch. 4, § 05 - APPLICATIONS, REQUESTS, AND RULEMAKING

A. GENERAL PROVISIONS

1. Applications for Permit and Zoning Change, and Requests for Advisory Ruling and Certification

Applications must be submitted using the Commission's forms, which may be changed from time to time by the Commission. The Commission's application forms will require information deemed necessary or desirable by the Commission to evaluate the application. The Commission may coordinate with the MDEP to incorporate any Commission certification forms into the MDEP's permit application materials.

A person requesting Commission approval must use the appropriate form, but need not complete any portions of a form determined by the Commission to be unnecessary for a specific application.

2. Signatory Requirement

In addition to the provisions of Section 4.02(D), signatures must comply with the following:

a. Each application or rulemaking petition submitted to the Commission must include the signature of the applicant or the person petitioning for rulemaking, or the duly authorized officer or agent.

b. If a form is signed by an agent, it must include evidence of the agency signed by the applicant or person requesting certification.

3. Title, Right or Interest

Unless otherwise provided by law, the Commission will not accept an application as complete for processing unless and until the applicant demonstrates, to the Commission's satisfaction, legally enforceable title, right or interest in all the property proposed for development or use sufficient to evaluate the proposed development and use of the property, including closure and post closure care, where required. Unless submitted to the Commission before filing a MDEP permit application, determinations of title, right or interest for certification requests made pursuant to 12 M.R.S. §§685-B(1-A) (B-1) and 685-B(1-A)(B-2) are made by the MDEP and are not subject to Section 4.05(A)(3). Methods of demonstrating title, right or interest include, but are not limited to, supplying the following:

a. when the applicant owns the property, a copy of the recorded deed(s) to the property. However, in the instance of large ownerships where, at the discretion of the Commission, providing deeds would be impractical or cumbersome, other methods, such as certificates of ownership, may be acceptable;

b. when the applicant has a lease or easement on the property, a copy of the lease or easement. The lease or easement must be of sufficient duration and terms, as determined by the Commission, to permit the proposed zone change, development, and use of the property;

c. when the applicant has an option to buy, lease, or obtain an easement on the property, a copy of the option agreement and a copy of the property owner's recorded deed. The option agreement must be sufficient, as determined by the Commission, to give rights to title, or a leasehold or easement of sufficient duration and terms to permit the proposed development and use of the property;

d. when the applicant asserts eminent domain power over the property, evidence describing the ability and intent to use the eminent domain power to acquire sufficient title, right or interest as determined by the Commission;

e. when the applicant has either a valid preliminary permit or a notification of acceptance for filing of an application for a license from the Federal Energy Regulatory Commission for the site which is proposed for development or use, a copy of that permit or notification;

f. when a project involving the State's submerged lands requires a submerged lands conveyance from the Bureau of Parks and Lands (the BPL), title, right or interest in the property will be presumed for purposes of the Commission's processing and acting upon the application or notification, subject to the following requirements:

(1) When an application is submitted to the Commission involving a use of the State's submerged lands, the Commission will forward a copy to the BPL. The Commission will not act upon an application until it has received written notice from the BPL that a submerged lands lease or easement is not required, or that BPL has initiated formal review of the project. If the Commission receives written notice from the BPL that a grant of a submerged lands lease or easement is legally required but has been or is likely to be withheld, the Commission will cease processing the application. As a condition of the Commission's licensing of any project involving the State's submerged lands which requires a submerged lands lease or easement from the BPL, construction may not commence unless the BPL has granted the required interest in the State's submerged lands and provided a copy of the submerged lands conveyance to the Commission.

(2) For projects involving the salvage of sunken logs from the State's submerged lands and which require a sunken log salvage authorization from the BPL, the Commission will not begin processing the application until the BPL has issued an authorization allowing the salvage in the location proposed, unless the BPL provides written notification that it has initiated review of the proposed salvage operation and approval in the proposed location is likely. The Commission may not issue a permit for sunken log salvage before the BPL issues a sunken log authorization for the project. A permit issued by the Commission must be effective for a period not to exceed the term of the authorization as granted or reissued by the BPL.

(3) When the Department of Inland Fisheries and Wildlife or the BPL files a notification to establish a public boat launch, title, right or interest to submerged lands will be presumed for purposes of accepting the notification if the applicant demonstrates it has filed an application for a submerged lands conveyance with the BPL. Work on the project may not begin until a lease or easement is obtained or the BPL has provided notification that one is not necessary.

g. if the property is subject to a conservation easement or other restrictions of record, a copy of the conservation easement or other restrictions.

The Commission, in its discretion, may require additional information from the applicant to determine whether the applicant has sufficient title, right, or interest.

The Commission may return an application after it has already been accepted for processing if the Commission determines that the applicant did not have, or no longer has, sufficient title, right, or interest.

4. Fee.

The application must be accompanied by the proper fee as set in Chapter 1 of the Commission's rules or by the Director pursuant to 12 M.R.S. §685-F.

5. Acceptance of Applications.

a. Application Accepted as Complete for Processing. Upon receipt of an application, the Commission must determine whether to accept the application, as complete for processing based upon whether it:

(1) is properly signed;

(2) is accompanied by the proper fee;

(3) contains sufficient documentation of title, right, or interest;

(4) contains documentation that notice of the filing, when required, has been provided. Documentation of notice must include a list of the recipients and applicable addresses or email addresses, the means and date of notice, and a copy of the notice provided; and

(5) answers all applicable questions in the application and contains all applicable exhibits.

b. Notwithstanding the provisions of Section 4.05(A)(5)(a), requests for an advisory ruling must be accompanied by the proper fee and contain sufficient information for the Commission to begin its review.

c. The Commission will notify the applicant of any deficiency in the application within a reasonable time after it becomes aware of the deficiency.

d. Additional Information May Be Required. In addition to the threshold information required by Section 4.05(A)(5)(a), the Commission may request additional information the Commission deems necessary to evaluate applicable review criteria. Even if an application is accepted as complete for processing, the Commission may deny the application if the applicant fails to provide additional information the Commission deems necessary for it to make findings required by applicable review criteria including, but not limited to, criteria set forth in 12 M.R.S. §685-A(8-A) and § 685-B(4), Criteria for Approval, and any other applicable review criteria.

e. Modification of Application. If the Commission determines in its sole discretion that an applicant (i) materially modifies its application such that the modified application requires new or supplemental review by the Commission, or (ii) submits additional information necessary to enable the Commission to make findings under applicable review criteria, and the additional information requires new or supplemental review by the Commission, the Commission may:

(1) If there is insufficient time to make the findings and conclusions required by law within the deadlines set forth in 12 M.R.S. §685-A(7-A) and §§ 685-B(2-B) and (3-A), deny the application; or

(2) With the agreement of the applicant, accept the additional information as a modified application, in which case the processing times set forth in 12 M.R.S. §685-A(7-A) and §§ 685-B(2-B) and (3-A) restart on the date that the Commission determines there is sufficient new information for the Commission to begin its review of the modified application.

6. Burden of Proof

Unless otherwise provided herein or by other applicable provisions of law, the burden of proof is as follows:

a. The burden of proof is upon the applicant. An applicant must demonstrate by substantial evidence that the criteria of all applicable statutes and regulations have been met.

7. Comment Periods Without a Hearing

a. The Commission must allow a period of not less than five days after providing notice of receipt of a permit application, during which time any interested persons may submit written comments to the Commission.

b. Certifications. The Commission must allow a period of not less than 20 days after accepting a request for certification as complete for processing, during which time any interested persons may submit written comments to the Commission. This 20-day period does not apply to the Commission's determination of whether to certify that the proposed development is an allowed use within the subdistrict or subdistricts for which it is proposed.

c. Exceptions. Exceptions to the time periods stated in Section 4.05(A)(7)(a) and (b) may be made in cases involving emergencies, as determined by the Commission, and requests for certifications determined by the Commission to be routine in nature.

8. Withdrawal of Applications

Unless otherwise provided herein or by other applicable provisions of law, applications may be withdrawn by the applicant at any time prior to:

a. a staff issued decision; or

b. the commencement of Commission deliberation on the application at a Commission meeting.

9. Procedures and Time Limits for Issuing a Decision on Applications

a. Except where otherwise directed by the Commission or determined by the Director, the staff will prepare a recommendation for each application brought to the Commission for a decision.

b. Commission staff will send notice of the decision on an application to the applicant, intervenors, and to any other person having requested such information.

c. Notice of a decision of the staff will indicate that any person aggrieved by the staff decision has the right to a review of the staff decision by the Commission. The request for such review must be made in writing within 30 days of the date of the staff decision.

d. In the event the Commission approves an application for a subdivision, a copy of an approved plat or plan and a copy of the conditions required by the Commission to be included in any deed or other document conveying an interest in the subdivision must be filed by the applicant, or the Commission at the applicant's expense, with the appropriate registry of deeds for each county in which the real estate lies.

B. ADVISORY RULINGS

1. General Provisions

Commission staff may, at its discretion, issue an advisory ruling with respect to the applicability to any person, property, or actual state of facts of any statute, standard, or rule administered by the Commission.

a. The request for an advisory ruling must be consistent with Section 4.05(A)(1). The advisory ruling must be made in writing upon review and approval of the Director or their designee, and must state that it is limited in application to the facts stated in the request.

2. Rulings Not Binding

In accordance with 5 M.R.S. §9001(3), advisory rulings are not binding on the Commission.

C. USE NOTIFICATIONS

Where a written notification to the Commission is required by Chapter 10 of the Commission's rules or by other Commission approved plans, such notification must be submitted in advance of the date on which the activity, which is the subject of the notification, is commenced. Except as provided in Chapter 10, Section 10.27(L), or by other Commission approved plans, such notification must state the:

1. location of the proposed project by use of an official Commission Land Use Guidance Map of the area;

2. nature of the proposed project; and

3. time period of the proposed project.

Such notification must also state that the activity or project will be accomplished in conformance with the applicable minimum standards of Chapter 10, Sub-Chapter III and must be signed by a duly authorized person who will be responsible for the execution of the activity.

D. PERMIT APPLICATIONS

1. Applicability. This section governs the procedures by which the Commission may consider permit applications submitted under 12 M.R.S. §685-B and Chapter 10 of the Commission's rules.

2. Who May Apply. An applicant may designate an agent for the purposes of completing an application and representing the applicant's interests before the Commission.

3. Who May Apply for a Subdivision Application in which Interests Have Been Sold without a Subdivision Permit

The following provisions apply to a permit application for a subdivision or similar development in which interests have been sold without a subdivision permit as required by 12 M.R.S. §685-B:

a. If the person who subdivided the land is still holding an interest in some or all of the land that was subdivided, that person must be the applicant or co-applicant.

b. If the Commission determines that the person who subdivided the land is unavailable or no longer holds an interest in the subdivision, all persons having an interest in any lot in the subdivision may apply for a subdivision permit provided that:

(1) All such persons coapply or are otherwise represented, or

(2) The Commission determines that those lot owners not represented are not necessary to the proceeding. In determining the necessity of such representation, the Commission will consider:

(a) The extent to which a decision reached in the person's absence might be prejudicial to that person's interests in the subdivision or to the interests of the other parties to the proceeding;

(b) The extent to which such prejudice can be lessened or avoided by provisions in the decision; and

(c) Whether the other parties will have an adequate remedy if no decision is made by the Commission.

c. An applicant must provide the following to the Commission:

(1) A complete list of those persons having an interest in any lot in the subdivision; and

(2) A written statement certifying that the applicant has provided all persons having an interest in any lot in the subdivision with notice of the pending application. The notice must state the nature of the application, the criteria pursuant to which the application will be reviewed, the procedure for review of the application, the possible effects of the application on persons having interests in lots in the subdivision, the opportunity for any such persons to participate in the proceedings before the Commission and any other information which the Director deems appropriate.

4. Who May Apply for Amendments to Existing Subdivision Permits

The following provisions apply to an application to amend a subdivision permit issued by the Commission pursuant to 12 M.R.S. §685-B:

a. The person who subdivided the land must file the application. If the Commission determines that this person is unavailable or no longer holds an interest in the subdivision, the lot owners' association or, if no lot owners' association has been formed, any individual lot owner must be considered a proper applicant before the Commission.

b. The applicant must provide to the Commission all information required by Section 4.05(D)(3) (c). In addition, if there is a lot owners' association, the applicant must document how that the amendment is in compliance with all applicable bylaws.

5. Procedures and Time Limits for Issuing a Permit Decision

a. Application with a hearing. Within 60 days after closure of a hearing concerning a permit, the Commission must make written findings of fact and issue a decision either granting approval, subject to reasonable terms and conditions that the Commission determines appropriate to fulfill the requirements and intent of the Commission's statute, the Comprehensive Land Use Plan, and the Commission's rules, or denying approval of the application as proposed.

b. Application without a hearing. If the Commission determines to act upon a permit application without a hearing, the Commission, within 90 days after accepting the application as complete for processing, must make written findings of fact and issue a decision either granting approval, subject to reasonable terms and conditions that the Commission determines appropriate to fulfill the requirements and intent of the Commission's statute, the Comprehensive Land Use Plan, and the Commission's rules, or denying approval of the application as proposed.

c. Subdivision. The Commission must render its determination on an application for subdivision approval within 60 days after the Commission accepts the application as complete for processing and determines that the proposal is a permitted use within the affected district or subdistrict.

d. Expedited permitting area for wind energy development. The Commission must render its determination on a permit application for a wind energy development in an expedited permitting area within 185 days after the Commission accepts the application as complete for processing, except that the Commission must render such a decision within 270 days if it holds a hearing on the application. At the request of an applicant, the Commission may stop the processing time for a period of time agreeable to the Commission and the applicant. The expedited review period specified in this paragraph does not apply to the associated facilities, as defined in 35-A M.R.S. §3451(1), of the wind energy development if the Commission determines that an expedited review time is unreasonable due to the size, location, potential impacts, multiple agency jurisdiction or complexity of that portion of the development.

E. APPLICATIONS FOR ZONE CHANGE

1. Applicability. This subsection governs the procedures by which the Commission may consider petitions to change the boundaries of existing subdistricts or establish new subdistricts (applications for "zone change"). If approved, the Commission will amend its land use maps to reflect the zone change.

2. Who May Apply. The Commission or its staff may initiate, and any state or federal agency, any county or municipal governing body, or the property owner or lessee may apply for a zone change. A lessee must provide, as part of the application for zone change, written permission from the property owner.

3. Application Content.

a. The district boundary that the applicant requests the Commission adopt or amend;

b. The existing and proposed district designations;

c. The basis for the change requested;

d. Compelling evidence that the requested change is in conformity with the applicable criteria for zone changes set forth in 12 M.R.S. §685-A(8-A); and

e. Evidence that the notice provisions of Section 4.04(B) have been completed.

4. Procedures and Time Limits for Issuing a Decision on an Application for a Zone Change.

a. Within 45 days after deeming an application for zone change complete for processing, the Commission must decide whether to hold a hearing, and either schedule a hearing or, if no hearing is held, set a final date by which comments on the petition may be submitted to the Commission;

b. The Commission must act on an application for zone change within 90 days after the final closure of the hearing, or, when the Commission does not hold a hearing, within 90 days of the close of the public comment period;

c. At any time before acting on an application for zone change, the Commission may elect to reopen the record and extend the time period for public comment to such date as it may designate;

d. District boundaries adopted by the Commission must be effective not less than 15 days after adoption, provided all applicable requirements for their adoption have been met and the Commission staff have filed the boundaries and maps with the appropriate registry of deeds for each county involved;

e. A notice of adoption of land use district boundaries must be filed by the Commission staff with the Secretary of State. This filing must state that current copies of maps showing district boundaries are on file in the Commission's office and must state the method by which copies of the adopted map may be obtained; and

f. Commission staff must ensure public notice of adoption is provided by publication one time in a newspaper or newspapers of general circulation in the area affected.

F. REQUESTS FOR CERTIFICATION

1. Certification of Development

Pursuant to 12 M.R.S. §685-B(1-A) (B-1) and 38 M.R.S. §489-A-1, for development in the unorganized and deorganized areas reviewed by the MDEP and requiring a permit, the Department may not issue a permit until the Commission certifies to the Department that the proposed development is an allowed use within the subdistrict or subdistricts for which it is proposed and the proposed development meets any land use standard established by the Commission that is not considered in the MDEP's review. Commission certification determinations will conform with the following:

a. The Commission will consider receipt, by the Commission, of a notice of intent to develop and map indicating the location of the proposed development, required by 12 M.R.S. §685-B(1-A) (B-1), as a request for certification. The person proposing development may provide the notice and map directly to the Commission or to the MDEP for the MDEP to provide to the Commission.

b. The Commission's decision on a request for certification will be issued:

(1) Solely to the MDEP for inclusion in the MDEP's permitting decision if the Commission approves a request for certification.

(2) Solely to the MDEP for inclusion in the MDEP's permitting decision if the Commission denies a request for certification and the request is associated with a development proposal being reviewed by the MDEP as part of a pending permit application.

(3) Both to the MDEP and to the person proposing development if the Commission denies a request for certification and the request is not associated with a development proposal being reviewed by the MDEP as part of a pending permit application.

c. A Commission decision to approve a request for certification may include reasonable terms and conditions that the Commission determines appropriate to fulfill the requirements and intent of the Commission's statute, rules, and plans. The Commission retains, pursuant to 12 M.R.S. §685-B(1-A) (B-1), the authority to enforce the land use standards certified to the MDEP, including through the enforcement of terms and conditions that are a part of a certification determination.

d. The Commission may conduct its certification review and issue its decision as a single certification determination or in two parts. If provided in two parts, the first part will address whether the proposed development is an allowed use within the subdistrict or subdistricts for which it is proposed and the second part will address whether the proposed development meets the land use standards established by the Commission that are not considered in the Department's review.

e. The Commission will evaluate the applicant's title, right or interest as follows:

(1) If a person requesting certification simultaneously applies to the MDEP for a permit for the same proposed development, the Commission will not evaluate whether the person has title, right or interest in the property proposed for development. In such instances, the Commission will rely on the MDEP's title, right or interest determination. If at any point the MDEP determines the applicant does not possess sufficient title, right or interest, the Commission may stop reviewing the companion request for certification. Any time period contained in this Chapter for completing review of a request for certification will be tolled if the Commission stops its review pursuant to this paragraph.

(2) If a person requesting certification seeks certification before filing a permit application with the MDEP, the Commission will proceed in accordance with one of the two options contained in this paragraph. The Commission may require the applicant to demonstrate, to the Commission's satisfaction, legally enforceable title, right or interest in the property proposed for development or use sufficient to approve the request for certification. Any title, right, or interest determination by the Commission will be made in consultation with the MDEP. If the Commission determines that a person requesting certification lacks title, right or interest, the Commission will return the request to the person who made the request for certification. Alternatively, the Commission may elect to not independently evaluate title, right or interest and condition any certification determination on the MDEP finding in a future companion permit decision that the person possesses title, right or interest in the property proposed for development or use.

f. A Commission determination to approve or deny a request for certification is not final agency action when the request is associated with a development proposal being reviewed by the MDEP as part of a pending permit application and will be incorporated into the MDEP permitting decision. Pursuant to 5 M.R.S. §§11001 et seq., a person aggrieved by a MDEP permit decision containing a certification determination may appeal the Department's final agency action to state court in accordance with applicable state laws and court rules. As part of such an appeal, a person aggrieved may seek judicial review of any of the components of the MDEP's final agency action, including the Commission's certification determination that is incorporated into the MDEP's permitting decision.

g. A Commission determination to approve or deny a request for certification is a final agency action subject to judicial review, when the request is not associated with a development proposal being reviewed by the MDEP as part of a pending permit application.

2. Procedures and Time Limits for Issuing a Certification

a. Within 60 days after closure of a hearing concerning a request for certification, the Commission must issue a written certification determination.

b. If the Commission acts upon a request for certification without a hearing, the Commission, within 90 days after accepting the request as complete for processing, must issue a written certification determination. Notwithstanding the provisions of Sections 4.05(F)(2)(a) and (b), the Commission must issue its determination on a request for certification for a subdivision within 60 days after the Commission accepts the request for certification as complete for processing.

d. Except where otherwise directed by the Commission or determined by the Director, the staff will prepare a recommendation for each request for certification brought to the Commission for a determination.

e. Notice of a certification determination of the staff must indicate that any person aggrieved by the staff determination has the right to a review of the staff determination by the Commission. The request for such review must be made in writing within 30 days of the date of the staff determination.

G. RULEMAKING

1. Applicability

This section governs the adoption or amendment of the Commission's rules, other than zone changes, which are governed by Section 4.05(E).

2. Who May Petition

a. The Commission may initiate the adoption or amendment of any rule.

b. Any person may petition the Commission in writing to request the adoption of a rule or amendment of any rule administered by the Commission. Such petition must specify the change requested. Within 60 days after receipt of a complete petition, the Commission must either:

(1) Deny the proposed adoption or amendment, indicating in writing the reasons for denial; or

(2) Initiate rulemaking proceedings on the proposed adoption or amendment.

c. Whenever a petition to adopt or amend a rule is submitted by 150 or more registered voters of the State, the Commission must initiate rulemaking within 60 days after receipt of the petition. The petition must conform to the applicable provisions of 5 M.R.S., Chapter 375, the Maine Administrative Procedure Act, including with respect to the certification of names on the petition. Pursuant to 5 M.R.S. §8055, and Section 4.08(C)(1), rulemaking is considered to be initiated when the Commission directs staff to post the rulemaking to a comment process or a hearing, comment, and rebuttal process.

3. Petition Content

Petitions must be in writing and must state the change requested and the basis for the change requested.

4. Time Limits for Rule Adoption

a. Land Use District Standards:

(1) The Commission must act to adopt proposed land use district standards within 90 days after the final closure of the hearing, or where the Commission determines to proceed without a hearing, within 90 days of the final date by which data, views or arguments may be submitted to the Commission for consideration in adopting the standards.

(2) At any time prior to adoption of proposed land use standards, the Commission may elect to reopen the hearing record and extend the time period for public comment to such date as it may designate.

b. All Other Rules:

(1) Except as provided in Section 4.05(E)(4)(a) and (b), the Commission must act to adopt proposed rules within 120 days of the final date by which data, views or arguments may be submitted to the Commission for consideration in adopting the rule.

(2) The final date for comments may be extended if notice of doing so is published within 14 days after the most recently published comment deadline, in the Secretary of State's consolidated notice publication.

5. Adoption Requirements

With respect to all rules adopted or amended by the Commission, the Commission must follow the adoption procedures in 5 M.R.S. Chapter 375; and as applicable, 12 M.R.S. §685-A(7-A).

6. Coordination with the Legislature

The Commission must:

a. At the time of giving notice of rulemaking or within 10 days following the adoption of an emergency rule, provide to the Legislature a rulemaking fact sheet providing information described in 5 M.R.S. §8053-A(1), and where applicable, 5 M.R.S. §8053-A(2);

b. If the Commission determines that a rule which it intends to adopt will be substantially different from the proposed rule, provide the Legislature, in accordance with Section 4.05(G) (6)(a), with a revised fact sheet as it relates to the substantially different rule pursuant to 5 M.R.S. §8053-A(1)(A);

c. Provide copies of its regulatory agenda to the Legislature at the time the agenda is issued pursuant to 5 M.R.S. §8060;

d. If the Commission proposes a rule not in its current regulatory agenda, file an amendment with the Legislature and Secretary of State at the time of rule proposal, pursuant to 5 M.R.S. §8064; and

e. When the Commission provides materials to the Legislature, follow the requirements of 5 M.R.S. §8053-A(3).

7. Emergency Rulemaking.

If the Commission finds that immediate adoption of a rule is necessary to avoid an immediate threat to the public health, safety or general welfare, it may modify these procedures, to the extent required, to enable adoption of a rule to mitigate or alleviate the threat found. Emergency rulemaking is subject to the requirements of 5 M.R.S. §8054.

8. Effective Date of Adopted Rules.

a. Rules adopted or amended by the Commission become effective in accordance with 5 M.R.S. §8052(6) for routine technical rulemaking; §8054 for emergency rulemaking; and §8072(8) for major substantive rulemaking.

b. Land use district standards are effective not less than 5 days after filing with the Secretary of State, but must be submitted to the next regular or special session of the Legislature for approval or modification. If the Legislature fails to act, those standards continue in full force and effect. [12 M.R.S. §685-A(7-A)(B)(6)]

Notes

01-672 C.M.R. ch. 4, § 05