October 6, 2008
Conservation Double Dip
Plum Creek has until Oct. 14 to decide whether to accept a generous offer from the Land Use Regulation Commission to endorse its application to rezone land around Moosehead Lake for development. The company must decide whether to accept modest changes to the plan recommended by LURC staff.
LURC, by moving some development away from water bodies and setting standards for both development and conservation, has improved the plan. At the same time, approval of Plum Creek's plan sets a dangerous precedent because the commission will have gutted a cornerstone of such rezoning requests. A lake concept plan - Plum Creek's is by far the largest that LURC has considered - allows landowners to develop their property more quickly in exchange for required conservation.
In its plan, which calls for 975 house lots and two resorts, Plum Creek proposed 91,000 acres of conservation offsets. Earlier this year, some LURC members indicated they felt this was inadequate. They had three options: They could have required more land to be conserved; they could have scaled back the development; or they could have required a combination of the two.
Instead, they accepted a private, paid conservation agreement as an adequate offset.
After submitting its development plan, Plum Creek signed a private agreement with The Nature Conservancy, Forest Society of Maine and Appalachian Mountain Club to preserve nearly 340,000 acres near the proposed development. The company would be paid $35 million for a 270,000-acre easement and two land purchases totaling nearly 75,000 acres.
This agreement will likely enhance wildlife habitat and recreational opportunities. But it needed to remain separate from the rezoning application.
In a 2006 letter to Plum Creek, LURC staff encouraged the company to avoid confusion by either eliminating all references to the so- called conservation framework in its concept plan or explicitly stating that the framework is nonregulatory and voluntary. The commission did not follow up with a firm request to keep the two separate. In fact, it went along with the company's efforts to mingle the two.
"This is a bad idea that could haunt Maine's land use and regulatory agencies well into the future," former Attorney General Jon Lund wrote in a column in this paper last month.
"Linking the two creates the problem because it means that Plum Creek would receive $35 million from TNC and then also receive a development permit from LURC on the basis of the same transfer of development rights. This amounts to double-dipping: Plum Creek would get two benefits for the price of one and escape the need to reduce its proposed development or increase its donated conservation," Mr. Lund wrote.
He predicts that other developers will look for similar arrangements to get paid for what they are required to do as mitigation.
As for criticism that LURC did not listen to public comments, the commission's work should not be driven by the popularity or unpopularity of a project. Rather, commissioners must decide whether a proposal meets its requirements, namely that it is compatible with existing development and will not have adverse impacts.
By allowing a private, paid conservation agreement to balance adverse impacts, LURC risks weakening this standard.
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