WHY LD 2003 is UNconstitutional and Why We Must Strike it Down!

The future for Maine that this act paints needs challenging with better visions and models.

commissioner study.

Jon Tyson Unsplash

Dear Reader,

Recently I had a conversation with Mario Mariotti, of Constitution Party Services;
an independently operated service provider, for political party organizing. Mario is an organizer and offered to help get a Constitutional Party of Maine established, a party that is about issues, not about nominating candidates and so can include those from any political party, which is as it should be since all of our leaders, whatever party, must take an oath to uphold our Constitution. Mario said the party should begin by organizing around one political issue and I suggested challenging the constitutionality of LD 2003 since it has recently been enacted. and has taken a large amount of control over municipal ordinances without any significant debate over LD 2003’s constitutionality. Forming a Constitutional Party around LD 2003 can make both LD2003 and the Maine Constitution a focal point.
Mario is an organizer, I am a writer, and a party needs both. Writing is work that requires its own focus. Someone is needed to take on organizational leadership. If you are willing, Mario can be a great help. He can be reached at 781-386-1889 and by email at constitutionparty@yahoo.com

Why we cannot let LD 2003 go unconstitutionally challenged:

The commissioner study for LD 2003 is written as if it was created with the pre-existing intention to write a statute that facilitates urban blocks of production houses placed in or in close proximity to New England villages, where corporate-owned single-family homes will be built en masse in town after town across the State of Maine. This is a political philosophy of top-down centralized government.

In the study that became LD 2003 under the heading Key points of the presentations and questions from the commission, the commissioner study for LD 2003 acknowledges that the Maine Consitution is something to be considered “in the balance” and then quickly moves to the Intention to use wealth redistribution as a workaround of the Home Rule Amendment, in fact, takes a quantum leap of thought straight to declaring funding will be needed for the local authority to execute state mandates- Home Rule, notwithstanding- it never had a speaking chance and the authors of Appendix Q, the framework for this law, never took an oath to uphold the Maine Constitution.

The importance of home rule authority, the balance of state mandates and local control, and a recognition that municipalities cannot be relied upon to implement policy changes without resources and funding; pg 5 of the commissioner study.

What do the words “the balance of state mandates and local control” mean? The phrasing is too generally applied to have significance in an enactment forbidding municipal ordinances from prohibiting overcrowding or influencing community character, fitting squarely into the category of regulating “matters which are local and municipal in character”

The Commissioners exist in a bubble world that occludes the Maine Constitution, and yet hints at it, like something that has almost, but not quite receded into the mists. They still need to pay it nominal lip service and so they acknowledge “home rule authority” without mentioning that home rule authority comes from the Maine Constitution.

The Home Rule of The Maine Constitution states

Section 1.  Power of municipalities to amend their charters.  The inhabitants of any municipality shall have the power to alter and amend their charters on all matters, not prohibited by Constitution or general law, which are local and municipal in character.  The Legislature shall prescribe the procedure by which the municipality may so act.

The Constitution says that the inhabitants of any municipality shall have the power to amend their charters on all matters local and municipal in character but does not say that municipalities that do not have Town Charters are governed by Title 30-A: MUNICIPALITIES AND COUNTIES.

Title 30 came afterward.

It is interesting to ponder the meaning of §3001. Ordinance power

1.  Liberal construction.  This section, being necessary for the welfare of the municipalities and their inhabitants, shall be liberally construed to effect its purposes.  

[PL 1987, c. 737, Pt. A, §2 (NEW); PL 1987, c. 737, Pt. C, §106 (NEW); PL 1989, c. 6 (AMD); PL 1989, c. 9, §2 (AMD); PL 1989, c. 104, Pt. C, §§8, 10 (AMD).]

2.  Presumption of authority.  There is a rebuttable presumption that any ordinance enacted under this section is a valid exercise of a municipality's home rule authority.  

[PL 1987, c. 737, Pt. A, §2 (NEW); PL 1987, c. 737, Pt. C, §106 (NEW); PL 1989, c. 6 (AMD); PL 1989, c. 9, §2 (AMD); PL 1989, c. 104, Pt. C, §§8, 10 (AMD).]

3.  Standard of preemption.  The Legislature shall not be held to have implicitly denied any power granted to municipalities under this section unless the municipal ordinance in question would frustrate the purpose of any state law.  [PL 1987, c. 737, Pt. A, §2 (NEW); PL 1987, c. 737, Pt. C, §106 (NEW); PL 1989, c. 6 (AMD); PL 1989, c. 9, §2 (AMD); PL 1989, c. 104, Pt. C, §§8, 10 (AMD).]

And how does the above apply to the case when the purpose of the state law is to take central control over municipal ordinances? The Constitution is a higher authority of law. §3001. Ordinance power is only a statute. The State is forbidden from writing rules that undermine the intention of the Constitution by the fact that our representatives take an oath of loyalty to our Constitution. However, when the State becomes government through public-private relationships, over time constitutional government is eroded as private partners who do not take oaths to uphold our Constitution write the law.

The wording of LD 2003, except in one instance of legal vaguery, refers to ordinances and not to Town Charters. The Home Rule Amendment authorizes municipal power to alter and amend their charters on all matters, not prohibited by Constitution or general law. Are matters local and municipal in character general laws or special laws? Can the Legislature constitutionally enact a general law regulating matters local and municipal in character?

The Commissioners Report opines that “However, this does not mean that the State cannot enact legislation requiring municipalities to adopt local ordinances consistent with state policy. One example is the mandatory shoreland zoning laws in the Maine Revised Statutes, Title 38 – this is an instance in which the state required local municipalities to adopt ordinances consistent with state law.” (emphasis by author)

The shoreline is not municipal and local in character. The shoreline is statewide and beyond. Housing ordinances are municipal and local in character. The housing shortage is not uniform statewide, the shortage is highly concentrated in Southern Maine, especially Portland.

The Office of Policy and Legal Analysis weighs in without giving an opinion about LD 2003’s constitutionality, merely repeating that Maine is a Home Rule State. Nothing new or insightful is to be found there. It seems apathetic.

I submit that the Home Rule Amendment precludes the Legislature from enacting laws that regulate matters local and municipal in character when it states the following:

If Maine were to be governed by the purity of the statement above, our system would be decentralized regionalism.

The first hurdle is to have court standing.

What if there are some Town Charters pre-existing LD 2003 that prohibit overcrowding? A Town with such a charter might have the standing in court to challenge LD 2003. Standing requires that the person or entity bringing the case before the court demonstrates personal harm afflicted them.

LD 2003 does not regulate municipal charters, Constitutionally, it cannot do so, the Legislature can only set up the procedure by which the municipality may so act, but can the following vagueness in the law be interpreted as instructing municipalities what they can’t put in their charters about matters municipal and local in character?

Amends the fair housing provisions of the Maine Human Rights Act to define the terms "character of a location," "overcrowding of land" and "concentration of the population" and to prohibit municipalities and government entities from using these criteria to restrict the construction or development of housing accommodations in any area; HP 1489

If the State can just write laws dictating what municipalities can put in their charters about matters local and municipal in character, what does that say about the balance between State mandates and the State Constitution?

Moving on to the method. The Commissioners study is full of detail:

How to implement the Wealth Redistribution Work Around of the Home Rule Amendment to gain central control over municipal ordinances is in Reccomnendation #6
Recommendation #6. Create a three-year statewide incentive program for municipalities as follows: in Year 1, a qualifying community must make a commitment to reviewing zoning and land use restrictions. In Years 2 and 3, adopt zoning and land use policies to promote housing opportunities; qualifying communities would receive a state financial reward for up to three years, so long as they remain in good standing with the program requirements. pg ii of the Study ) emphais by author)

The method of asserting State control over municipal ordinances is the same method used In the Year 1968, The United States Intergovernmental Cooperation Act of 1968, Public Law 90–577 included detailed instructions on how State and municipal constitutions and laws should be amended to conform with federal management of the Union’s economy. Public Law 90–577 uses grants to encourage states to enact its agenda and gives instructions for keeping states informed about the availability of grants.

Is it unrelated that Maine became a Home Rule State in 1969?

The Federal law was enacted in 1968 and the Home Rule Amendment was added to the Maine Constitution in 1969. The federal law aimed to establish central control of the states through wealth redistribution but recognized all forms of borrowing and debt as decided by a local public majority vote. When the federal law and the Maine Home Rule amendment were enacted, the public funding landscape was far more limited than today but new inventions of financial instruments and the inclusion of non-profit giving to public causes should not alter the principle of a majority vote by the inhabitants of the community over matters affecting public community development.

However, the intent in the Maine Home Rule Amendment is written as applying to municipal bonds only. For the Amendment to be interpreted as the principle that all forms of financing municipal development are approved with a public vote the wording needs to be added to the amendment but it will take a movement to make it happen.

Statutory laws could also be enacted requiring that all funding, of any kind, that affects public municipal development must be approved by a public referendum. It is often argued that a constitutional amendment is harder to change than statutory law but as I have been showing in the newsletter, that is not so. Precedence establishes how easily the Constitution can be changed by statutory law. Easy as pie! If the Constitution prohibits the Legislature from chartering corporations by special acts of legislation, write a statutory law that says that if a corporation is chartered by a special act of legislation, it is not a corporation. On the other hand, the Maine Legislature was able to get away with that because no one challenged the constitutionality of Tile 13 B.

When the Maine Legislature, or their private partners, write statutes to get around the Maine Constitution, the undoing of those statutes through challenging their constitutionality is difficult for many reasons, including establishing standing with the court, legal expenses, and the concern that judges do not always seem just. One could more easily campaign for a law to be repealed but challenging an enactment on a constitutional basis sends a message that the Constitution still matters, perhaps functioning as a deterrent against laws enacted on absurd lines of reasoning.

One way or another LD 2003 is an ominous law that ought to be undone before Maine becomes a rural short-term rental industry dotted with inner-city ghettos and suburbs, but not ghettos and suburbs of the city, ghettos, and suburbs of New England villages, and the rural countryside, as the short-term rental and leisure time industries expand unhindered into our former New England villages, and still have their essential workers and workforces who live in dormitories, graciously built for them by for-profit subsidiaries of non-profit organizations, or so they think as the planners of such dreams cannot imagine that the working classes will have any say in the matter. But I say imagine it! That is the way the new era begins, in the imagination!

Some may agree that the working classes are mere powerless pawns but in China the ghost cities sit mostly uninhabited, differing only in scale and purpose from the 36-acre housing concentration zone planned by the Boothbay Region Development Corporation whose spokesperson is Erin Cooperrider, one of the three Commissioners who wrote the framework for LD 2003.

What is a ghost city?

Ghost cities come in many shapes and sizes. While information about them is scarce, studies have identified some 50 municipalities of varying sizes, often labelled as development areas (开发区), new areas (新区), or eco-cities (生态城). They are often located on the outskirts of second and third-tier Chinese cities; most are fully completed, but some were suspended mid-construction. Miniature replicas of London, Paris and European villages have low residency rates, making them perfect venues for wedding photoshoots or film sets. source

In Maine, ghost suburbs are called “priority zones”, meaning housing concentration zones for a targeted economic sector, where short-term rentals are prohibited, and serf-force housing is designated, to be referred to as “workforce housing” by the new rules of the twenty-first century, an era when those who work for a living are excluded from home ownership as the centrally managed public-private state unfolds its master plan.

As it stands today our Town selectmen can award public funding without having to go through a municipal referendum as is the case of awarding American Rescue Plan Funds allotted by Boothbay selectmen to a corporation that is not to be found in the Secretary of State database. At least there should be a law that says a corporation receiving public funding must be registered on the Secretary of State database, even if it is a subsidiary of another corporation, even if it is a corporation chartered by a special act of legislation and declared not to be a corporation by a separate legislative act.

The delimiters of the study for LD 2003

• Maine's aggressively expanding short-term rental industry is not dealt with in the study

• The new reality that working for a living no longer affords home ownership is an accepted matter of fact (or perhaps a victory?) in the report rather than a problem to be solved and a high motivator of change among the younger generations. This suggests that either the commissioners are misreading the younger generations, or are interested only in those of the younger generations who have passive incomes, or those who passively accept serfdom. The commissioners no more recognize other classes outside their targets than they acknowledge the aggressively expanding short-term rental industry as a cause of the housing shortage. The study context is a world in a bubble of its own making.

Facts the Committee left out of the report:

• Maine Biz reports Maine's Airbnb hosts earned $100 million from more than 534,000 guests in 2019. That's up from a reported 430,000 bookings in 2018 that generated $67 million. Maine Biz January 2020.

• The Airbnb website states :

Guests who book Airbnb listings that are located in the State of Maine will pay the following taxes as part of their reservation:

• Maine State Sales Tax: 9% of the listing price including any cleaning fees and guest fees for all reservations. For detailed information, visit the Maine Revenue Services’ website

The state collected at least 9 million on 100 million dollars in bookings in 2020, depending on whether fees are included or are additional.

In 2021, Maine Airbnb hosts earned over $180 million through the platform, the company says. Since 2010, they've earned approximately $485 million. The number of Airbnb listings in Maine reached 20,000 in October, up from 12,500 in 2019. (source)

The Commissioners attribute the cause of homelessness and housing shortages to the Covid-19 pandemic. The rapid development of homelessness and housing shortages in Maine predate Covid-19, but the study does not address any other cause. Back in 2019 when Erin Cooperrider was advancing the change of language terms from low-income and affordable housing to workforce housing, the data was in that the largest housing shortage was in low-income and affordable housing for those making 80% or less of the median income, and yet Ms. Cooperrder, then the director of Community Housing of Maine (CHOM), a for-profit subsidiary of CEI, was advocating for changing the language to target the subsidized demographic, “workforce housing” which she identified as making an above median income for the area per State corporate welfare deals (she didn’t mention the latter). This attests that the motivation was not to solve the most crucially needed housing shortages but to achieve the highest profit for the corporate developer, spun as it has been done for decades as “for the public benefit”. Click on the Community Housing of Maine (CHOM) and you will see that CHOM identifies itself as a 501 C3 organization:

Community Housing of Maine is a 501(c)(3) non-profit charitable organization.
We accept contributions from individuals, groups, and organizations.
​ Your help goes a long way in helping create an equitable society where everyone has a place they can call 'home'.

But CEI 990 Audit 2021 identifies CHOM as a for-profit subsidiary of CEI. This tells us that when an organization identifies itself as a 501 C3, it may not be the truth, especially when the organization is not found in the Secretary of State corporate name search- in an example, The Boothbay Region Development Corporation, which we are told in a Boothbay Register article is a 501 C3 organization whose VP and primary spokesperson is Erin Cooperrider, former director of CHOM and primary architect of LD 2003.

CHOM Housing, LP ("CHOM") - In 1999, CHI established a for-profit entity, CHOM. CCHI was the general partner and is was wholly-owned by CEI and, therefore, it was consolidated. In April 2021, the Corporation transferred ownership rights of CHOM to an unaffiliated third-party entity. CEI 990 Audit 2021

While information about subsidiaries of a non-profit corporation is consolidated and hidden from public knowledge, Ms. Cooperrider gives us a revealing piece of information in her About Page for the New Heights Group when it is written “Erin served 17 years as Development Director for Community Housing of Maine (CHOM), a statewide affordable housing developer, helping to grow the organization’s asset base from $5 million to more than $100 million using low-income housing tax credits, state and federal historic tax credits, grants, loans, and private equity.”

Do we really know that when she says CHOM, she means CHOM, or does she mean the parent organization, CEI? It is important because according to the CEI 990 Audit 2021 CHOM was transferred to an unaffiliated third party and “Transfer for Net Assets of CHOM are listed as (1,002,820), leaving the question - What happened to the other 99 million dollars worth of assets that Ms. Cooperrider developed for the corporation? CEI does not list assets of an amount so high. Did the asset distribution go to private investors?

From The role of the NonProfit Sector Burton A Weisbrod

A for-profit organization may establish a nonprofit subsidiary; a nonprofit may establish a for-profit subsidiary. They may operate a joint venture. Such combinations are capable of enhancing the profit of the proprietary partner in a number of ways. They therefore require careful watching. Although they generate virtually no tax revenue, nonprofits are a major expense for the IRS staff, which handles more than 50,000 annual applications for tax-exempt status, deals with the complex Constitutional issues

Yes- if the Boothbay Region Development Corporation is a 501 C3 it will generate no property tax revenue while costing the Town massively in community services. Based on that consideration alone, why did our Town selectmen give the Boothbay Region Development Corporation $50.000.00 of public funding?

There were three commissioners that wrote the framework (Appendix Q) for LD 2003 but only two of those commissioners contributed to the general discussion in In Appendix P, titled List of Suggested Recommendations from Commission Members. Commissioner Dana Totman served as President and CEO of Avesta Housing for 22 years. Avesta Housing does not have subsidiaries according to its 990 report. Avesta Housing develops affordable rentals and offers homeownership support. Commissioner Totman spoke for the needs of low-income and affordable housing, including establishing pathways to ownership. When Totman brought up workforce housing, he described it as “housing must be targeted to persons at or below 80% median income.” this is a workforce inclusive of the free enterprise sector that subsidizes the State’s targeted sector but is not included in it. The State’s targeted sector is consistent with Ms. Cooperrider’s definition of workforce housing- those making a median to 20% above the median income. Mr. Totman also suggested that it be required that municipalities establish limitations on Airbnb residences, but such suggestions, if raised are typically ignored in state and regional discussions. The sales tax revenue that the state collects on the aggressively expanding Airbnb industry is more than enough to finance the grants to municipalities willing to work under state leadership in enacting municipal ordinances.

The third Commissioner, Jeff Levine has a company called Levine Planning Strategies geared toward municipal development. He was advocating for priority zones and density bonuses.

All three Commissioners that wrote the framework for LD 2003 are in the development industry and have something to gain from a state mandate to build priority zones in every community. Developers have been pushing for more crowded densities for quite some time. LD 2003 is a density bonus for the corporate developer industry.

The report continues

In 2020, the median home price in Maine was $256,000, a 14% increase over 2019, and the number of housing units sold in the same year was 19,921, a 10% increase. This median home price is unaffordable for median income households in all Maine counties except Aroostook, Kennebec, Penobscot, Piscataquis, Somerset and Washington counties

The Commission’s solution does nothing to solve the unaffordability of homeownership for those at or below the median income in Maine. Instead, LD 2003 sets up a gold rush for developers of corporate-owned single-family homes.

Erin Cooperrider is the spokesperson for the Boothbay Region Development Corporation pushing a 36-acre housing development zone on the Boothbay Peninsula at 3.5 the density of the surrounding area. The corporation is targeting 40% public subsidies. In Ms. Cooperrider’s own words, the properties will primarily be corporate-owned housing. The Boothbay Town selectmen have already awarded the Boothbay Region Development Corporation $50,000.00 of American Rescue Plan funding, with no public input. There was no public vote required. Edgecomb Selectmen have also pledged to donate American Rescue Plan Funding to the Boothbay Region Development Corporation, a corporation that is not found in a corporate name search on the Secretary of State website. The Corporation is angling for American Rescue Plan funding from Boothbay Harbor and Southport as well.

We have only the reporting of the Boothbay Register in evidence that the Boothbay Region Development Corporation is a 501 C3 and not a for-profit subsidiary of a 501 C3. We have seen that subsidiaries freely take on the corporate category of their parent in the example of CHOM, formerly directed by Ms. Cooperrider. Is this lack of verifiable information about a corporation planning a massive transformation of the Boothbay Peninsula and already ahead of the line in reeling in public money acceptable? When do we do something about local inhabitants’ rights, if not now?

If you feel the public deserves to have a voice in community development, and that transformational community development should not be advanced merely by private deals struck between Town officials and private developers, then consider helping to form a constitutional party in Maine by contacting Mario Mariotti, organizer, Constitution Party Services, He can be reached at 781-386-1889 and by email at constitutionparty@yahoo.com

Thanks, Mackenzie