Is it Time for Maine to do a State Constitution Review?
Is it enough for the Legislature to deem that what it does is constitutionally consistent- or should there be a higher standard?
Interlude at the beginning:
Back in 2019 when I joined Medium, my friend, the algorithm, distributed many stories into my stream about how to be successful. Number one on the list was to publish every day if not two or three times a day, advice which I transformed into writing every day, and publishing when done. There was also much advice such as “Don’t be a perfectionist! -It’s the quantity that one publishes every day that counts (towards generating an income), not the quality. I found that advice a recipe for a boring writing life. There were others who advocated for quality over quantity. I fall into that class, not necessarily as a recipe for great success on a platform like Medium, but because the process is infinitely more interesting and meaningful than churning it out.
Once one commits to writing every day, one commits to letting one’s stream of consciousness out onto the page. Within all that chaos there are dots that want to be connected and a story that wants to be told. As I set out to write this post, I may have an idea of what I am about to say, but more often than not, by the time I finish the post, the final result is not what I anticipated.
Today I am feeling overwhelmed by all that I have to manage. The Field opens up new possibilities for funding, leading to the question, “What is the first thing to apply for?” Answer: A staff to help figure it all out, including consultants, especially legal consultants.
If accepted, I no longer have to worry about a conflict of interest with the museum. Instead, the consideration of my involvement with the museum is time and energy. Andersen Design is a simpler starting point since it does not need a board to move ahead. Andersen Design is a small private free enterprise, my favorite type of organization. The museum would be a 501 3c and that is likely politically important in today’s world when the government has become a public-private-for-profit-nonprofit wealth concentration and redistribution industrial complex- for short PPFNWCD.INC, but nobody knows what that means.
Thinking about all of this is overwhelming and so for something easier to contemplate I returned to reading An Act To Implement the Recommendations of the Commission To Increase Housing Opportunities in Maine by Studying Zoning and Land Use Restrictions
There I found that my approach is mirrored in the State plans to take over control of municipal ordinances.
2. Grant program. The department shall develop a program to provide grants from the Municipal Planning Assistance Grant and Incentive Program Fund established under subsection 3 to municipalities for the purposes of contracting for services and hiring staff to help administer municipal responsibilities under this chapter. The department shall adopt rules outlining the application process and criteria for a municipality to receive a grant under this subsection. Approved uses of grants issued under this subsection include but are not limited to the following:
A. Contracting for the services of a regional planning organization or other private entity for assistance in the development and implementation of zoning ordinances and land use ordinances under this chapter; and
B. Hiring municipal employees to oversee or assist in the development and implementation of zoning ordinances and land use ordinances under this chapter. (emphasis by author)
The State needs the same as I or anyone needs to carry out a plan - a staff. Maine State Inc, as I like to call my government, has lots of money to attract a staff generated by the 9% sales tax on the Airbnb industry that has been expanding into housing where year-round residents once lived. Now the State wants to take over management of municipal land use and zoning codes so it can plan new housing for local resident occupancy, especially those who serve in the workforce needed by the Airbnb industry.
More and more, in the lovely and copacetic public narrative, housing is conceived of in terms of the workforce needs of Maine State Inc. It is said about centrally managed systems that if the system doesn’t manage something, then it doesn’t exist in the eyes of the system. That is what is scary about the State trying to take over the municipal role in zoning ordinances and land management. The State is a special interest corporation trying to protect the housing needs of its own primary interest while solving the housing needs of its secondary targeted sector just as other businesses are doing for their sector, since the Airbnb industry, one of the State’s primary financial interests, if not the primary interest (or so I surmise) is squeezing out all other sectors. To solve the problem of housing the state recommends downgrading housing solutions for all!
The name of the States new housing bill is ridiculously long. For short it could be called the Airbnb Industry Expansion Act to match Paul LePage’s An Act To Promote Major Business Headquarters Expansions in Maine, Promote the Commercialization of Research and Development in Maine and Create Jobs. The State approaches zoning and land use ordinances as a corporation designing its own campus including housing for its workforce, consistent with employers as landlords of their employees, a return to the good old days of feudalism.
The new act calls for residential housing zones often categorized as workforce housing, signifying housing for the targeted workforces in the industries that the State or municipality wants to attract. With the State in charge of municipal zoning and land use, there may be no place for alternative lifestyles or even remote working except in places that the state doesn’t care about, as in the Philip K Dick novel, The Man in The High Castle, which takes place in an alternate reality in which the other side won the second world war and the Japanese had the west coast, the Germans had the east coast of America and neither cared about fly-over land, the middle of America. In the new housing act, the Airbnb industry is left to expand to its heart’s delight and big corporations can buy up property in the designated housing zones to become the new landlords for the working classes for whom home ownership is no longer possible.
Do elected officials represent taxpayers or corporations? This question shouldn’t have to be asked, but the rise of nondisclosure agreements in negotiations over tax incentives and subsidies makes it necessary. source- Washington Post
It is happening today that corporations and politicians make deals for subsidies with terms that include an NDA agreement insuring that the voters will not know the identity of what they are subsidizing or approving until after the vote. Imagine if this were to happen with a housing development zone, or perhaps a fifty-million dollar school- or both, and throw in the industrial zone as well- with MEGA corporation the hidden investor in all of it. The voters get to find out that BIG corporation is paying for everything only after approving it.
Employers are becoming landlords renting only to their employees, so imagine politicians spinning the spin about a great new mysterious benefactor who is financing a development covering the entirety of the Town's designated affordable housing area but voters cannot know who the benefactor is until after it is passed. Later the corporation announces that the development will be reserved for its own employee housing. If our politicians agree to an NDA agreement with a benefactor, would the same politicians include anything in zoning and land use ordinances to protect the public from such an event?
The State’s emergency housing bill is designed to fit corporate needs while failing to acknowledge the remote worker’s movement. Corporate employees are considered to not need creative space of their own as their “innovative” work will take place at corporate facilities where it will be owned by the corporation, just like their dwelling units. Even the allowance for accessory dwellings on single-family homes permitting mid-term rentals is explained as rentals for corporate workers on a temporary stay. All housing categories in the emergency housing act are tailor-made for the State’s targeted sector but that encompasses only a narrow range of the populous. If there is no space allotted to a purpose in the zoning ordinances, that lifestyle cannot exist within the community or state. The community becomes very narrow and rigidly structured.
Dwelling units are becoming smaller and down-graded for every local residential sector of the economy. The upper-middle class is restricted from improving their subsidized home ownership, the skilled workforces live in boarding houses, and the homeless get 200 beds per room in an industrial opportunity zone in Portland, all to accommodate Maine’s rapidly expanding Airbnb industry and materializing a dystopian upstairs-downstairs community, bringing together the worst of Baroque and Industrial Revolution city planning.
Sec. 10. 30-A MRSA §4364-C is enacted to read:
§4364-C. Residential zones, generally; up to 4 dwelling units permitted
Notwithstanding any provision of law to the contrary, for any zone in which housing is permitted, a municipality shall permit structures with up to 4 dwelling units (emphasis by author)-suggesteed edit- replace structures with up to 4 dwelling units with structures that accomodate a business in a home.
Are you depressed now? Sorry about that. So am I. It is why action is needed by currently dormant sectors. Since there is so little separation between whoever controls concentrated sources of wealth, be public or private, for-profit or non-profit, to have a political voice increasingly requires forming a non-profit organization, but the good news is that anyone can do it, within the parameters of the law. The State wants to take over local land-use planning. It can force the municipalities to abide by state law but it can’t otherwise force communities to plan their land use and ordinances under the guidance of the State even though the State is prepared to bribe communities into doing so with a three-million-dollar fund. The under-represented need to create their own representation. Is that you? The process will be undergoing for three years. You can’t stop it so join it by whatever means are available. Be creative! Be you! Speak for your values and ideals! Remember what quantum physicists discovered. The observer affects the observed. We are part of the greater reality. Our actions are creative.
At this time, the focus should be on the criteria that the Department of Economic and Community Development is developing for the grant recipients for the State municipal planning board. Will it fairly represent all factions in the State? Unlikely. Will it limit the ratio of Airbnb owners or corporate real estate investors on the boards? The Act doesn’t mention these factions so why should the DECD? Other than raising our own voices, the people do not have a say in what the DECD does.
Individual people are not authorized to make any suggestions as to how the DECD sets up the board that will attempt to implement State management of our municipal zoning and land use ordinances. That is the way Maine State Inc. has operated since its inception in 1976 when it justified its establishment by claiming that it was going to help the then rapidly growing small business economy find capital. Governor Longley formed an advisory board composed of the heads of the largest and wealthiest corporations in the State, with no small business owners invited to the pow-wow. Then they chartered, by special act of Legislation, the Maine Capital Corporation.
Based on research found here, my conclusion is that the Maine Capital Corporation did very little in the way of helping small businesses to find capital. The primary beneficiaries were private investors.
As a layman, I see many legally questionable practices at work in this act embedded in other legally questionable practices in layers upon layers dating back to 1976 when the centrally managed economy was deemed into existence by the Maine Legislature.
For instance, does the setting up of boards, even if they are municipal boards, transgress lobbying statutes?
CHAPTER 15 LOBBYIST DISCLOSURE PROCEDURES 3 § 311. Declaration of purpose
The Constitution of Maine guarantees the right of the people to petition their government for the redress of grievances and to freely express their opinions on legislation and issues. The Legislature reaffirms its obligation to hear the requests and opinions of all of the people, and to preserve and maintain the integrity and accessibility of the legislative process.…….
The Legislature also recognizes that such activities must be carried out openly so that other citizens are aware of the opinions and requests made in this manner. Legislative decisions can fully reflect the will of all the people only if the opinions expressed by any citizen are known to all and debated by all, and if the representatives of groups of citizens are identified and their expenditures and activities are regularly disclosed.
Therefore, the Legislature declares that, in order to insure the full participation of all the people of the State in the legislative process, full disclosure of the identity, expenditures and activities of any persons who engage in professional lobbying is required. Such disclosure will insure the openness and integrity of the legislative process and encourage the expression of the will of all the people of the State.
One could argue that the boards being invited to rewrite municipal ordinances across the state are not legislative, they are administrative. Conversely one can argue that the ordinances under review are a form of legislation that fundamentally affects the quality of life that one can live in Maine. What is more fundamental to every single person than housing?
Maine Constitution Municipal Home Rule
The Home Rule Amendment was added to the Maine Constitution only seven years previous to the establishment of the corporate state of Maine, in 1976. The fact that Governor Longley’s task force specifically targeted eliminating the municipal referendums which get their authority from the Home Rule Amendment, speaks to the intentionality of the Taskforce to undo the Home Rule Amendment.
Section 2. Construction of buildings for industrial use. For the purposes of fostering, encouraging and assisting the physical location, settlement and resettlement of industrial and manufacturing enterprises within the physical boundaries of any municipality, the registered voters of that municipality may, by majority vote, authorize the issuance of notes or bonds in the name of the municipality for the purpose of purchasing land and interests therein or constructing buildings for industrial use, to be leased or sold by the municipality to any responsible industrial firm or corporation. (emphasis by author)
The Report- Governor's Task Force for Economic Redevelopment, Recommended Legislation for an Economic Development Program -110th Congress, calls for the elimination of local referendums on municipal bond issues, established in the Home Rule Amendment, with precise language:
2: eliminate the requirement for a local referendum on municipal bond issues.
The Home Rule Amendment was added to the Maine Constitution using a constitutional process that included a people’s vote. Home Rule is based on a political philosophy of decentralized regionalism. It grants authority to the local community to manage its own affairs, within parameters. Home Rule represents one side of a political spectrum, on which the United States was established as a union of states, or a union of regions, giving only limited powers to the federal government and based on a committed belief in individual freedom. The opposite side of the spectrum is totalitarianism and dictatorship
The centralized economy of Maine was deemed into existence by the Maine Legislature seven years after the Home Rule Amendment was added to the Maine Constitution following a report commissioned by Governor Longley. The Governor’s Task Force report recommended that two complimentary corporations be chartered by the Legislature, The Maine Capital Corporation, and the Maine Development Corporation. The Maine Constitution, Article IV Part Third, Sections 13 & 14, prohibits the Legislature from chartering corporations by special acts of legislation, with two exceptions, one being for municipal purposes, as in chartering a municipal corporation, the second being if the object of the corporation cannot be achieved another way, as in the private sector. The Legislature has since chartered a network of corporations, each one declared to be “an essential government function”. I submit that the reason for this often-repeated assertion is to imply that there is no other way for the object of the corporation to be achieved except by an act of government. To the degree that one cannot gain access and control over public money any other way, that is true, but unlikely an argument that would hold up in court, that takes into consideration the intent of the Constitution.
The statute chartering the Maine Capital Corporation included the following rationalization:
The Legislature finds that one of the limiting factors to the beneficial economic development of the State is the limited availability of capital for the long-term needs of Maine businesses and entrepreneurs. In particular, the lack of equity capital to finance new business ventures and the expansion or recapitalization of existing businesses is critical………..
To help correct this situation, it is appropriate to use the profit motive of private investors to achieve additional economic development in the State. This can be accomplished by establishing an investment corporation to provide equity capital for Maine businesses and by establishing limited tax credits for investors in the corporation to encourage the formation and use of private capital for the critical public purpose of maintaining and strengthening the state's economy.
In 1977, when the Maine Legislature wrote that the private sector would be granted a leadership role, the government of Maine veered away from the objects of government found in the Maine Constitution. Public-private relationships are the merging of the corporation and state, the structural definition of fascism. Since 1976, the Maine Legislature has assigned more and more power to itself to centrally manage everything, from central managing the educational curriculum, the merging of industrial training with education, to creating former military bases as “municipal corporations serving as an instrument of the State”, to the current plan to centrally manage municipal ordinances and local land planning. Maine State Inc. has not yet established a state religion but using its self-assigned authority to manage the public educational curriculum, there has been established a minor at the University of Maine in Marxist and Socialist studies since 2004.
The state is working on centralizing municipal planning but even within the parameters of the law that the State writes, the State can only manage municipal code to the degree that municipalities allow the State to do so.
501 3c organizations or fiscally sponsored entities can raise their own funds and compete with the State on that score. So organize!
I have seen many acts passed that could be constitutionally challenged but are not, partly because a challenger has to have standing in court by establishing that the law is personally harmful. In the case of the new municipal appeals board that the State is establishing solely for that end, a person who loses in the State final appeal board might have the standing to challenge the constitutionality of the board as the court of final appeal. I cannot say if the cause is there, but there is no need for such a final appeals court exclusively to adjudicate municipal permits when municipal permit appeals have long been handled by the court system.
Another question is whether passing the housing bill as an emergency act is consistent with constitutional parameters. This is what the Mane Constitution says about emergency acts:
Section 16. Acts become effective in 90 days after recess; exception; emergency bill defined.
…..An emergency bill shall include only such measures as are immediately necessary for the preservation of the public peace, health or safety; and shall not include (1) an infringement of the right of home rule for municipalities,…… (3) provision for the sale or purchase or renting for more than 5 years of real estate.
Regarding the first, the Legislature deems it to be so, using the same wording as above, and that is as the Legislature did when it decreed that centrally managing the economy is an essential government function.
What is the point of having constitutionally defined parameters when all that is required to satisfy them is to simply deem that they are satisfied? I attest that this new act does not make me feel at peace because there is reason to fear by the limited focus of this act that through municipal zoning it will wipe out the possibility of a life lived consistently with my sensibilities about healthful living, and to the fact that businesses in a home are still treated as non-existent despite the growing interest in living such a life. I believe people need to be creative in their lives and for that one needs space and a connection to nature, not squeezed together like sardines.
How can anyone say that this bill is for public health when the bill specifically prohibits ordinances that limit overcrowding? “Overcrowing” is the language used in the act. It implies excessive crowding. Is the Legislature deeming that overcrowding is good for our health? Nor do I consider that overcrowding and class zoning promotes safety. When I went to Pratt in the sixties there was a nearby development similar to the ones that the Maine Legislature wants to construct for the working classes. We were told to stay away from that development because it was dangerous.
The Constitution says “and shall not include (1) an infringement of the right of home rule for municipalities”- Isn’t that exactly what this act does? Isn’t that the whole point of it?