When faced with the prospect for an unanticipated commercial or industrial use, many municipalities and citizens ask about how a moratorium can help the Town press the “pause button” and figure out whether this use is something the municipality wants and, if so, how it should be regulated. Moratoriums can be a valuable tool for local governments and municipalities, but they are special types of ordinances that must be carefully drafted to satisfy specific state law requirements. In this article, we’ll explore what moratoriums are, how they can be enacted, and whether they can be retroactive.
What is a Moratorium?
A moratorium is a type of ordinance that a municipal legislative body may enact that temporarily halts certain, specified development to give the municipality time and opportunity to plan for accommodating or managing the development (or banning it all together).
Enacting a Moratorium
The process for enacting a moratorium is provided by statute—30-A M.R.S. § 4356—and must be strictly followed. It generally involves the following steps:
- Identify the Issue: Local officials and authorities should clearly and narrowly define the type of development they want to pause (e.g. solar farms, gravel quarries, aquaculture facilities, etc.). It is important to define the activity carefully so as to not be too broad or narrow, which may have unintentional consequences or alarm the community.
- Determine if a Moratorium is Necessary: A moratorium is only allowed when the legislative body determines it is necessary because either it will “prevent a shortage or an overburden of public facilities that would otherwise occur during the effective period of the moratorium or that is reasonably foreseeable as a result of any proposed or anticipated development” or “because the application of existing comprehensive plans, land use ordinances or regulations or other applicable laws, if any, is inadequate to prevent serious public harm from residential, commercial or industrial development in the affected geographic area.” It is important these findings are supported with some facts and evidence.
- Draft the Moratorium Ordinance: The moratorium ordinance must be drafted carefully to precisely comply with the requirements of the statute. It generally must include the follow:
- A prohibition of a specifically defined use;
- a definite term not to exceed 180 days
- enforcement provisions
- findings of necessity
- legal authority
- a clear effective date and statement on whether the moratorium ordinance is retroactive
- Provide Notice and an Opportunity for Public Participation: Transparency is crucial. Informing the public and affected parties about the proposed moratorium is essential. At least one public hearing should be held in advance of the meeting of the legislative body to vote on the moratorium. Additional requirements for notices and public hearings may be required depending on the type of use being regulated and the ordinances and charters of the municipality. Generally speaking, the same procedures for passing an ordinance must be followed for passing a moratorium ordinance.
- Temporary Suspension: Once enacted, a moratorium temporarily suspends the specific activities in question, providing time for further evaluation and potential regulatory changes. It temporarily repeals any ordinance or local law that conflicts with it.
- Duration: Moratoriums cannot be more than 180 days and local charters may further limit their duration. The municipal officers may extend this for one or more additional 180-day terms, so long as they hold a public hearing and find that (1) the problem necessitating the moratorium still exists and (2) reasonable progress is being made to alleviate the problem.
Can Moratoriums Be Retroactive?
The question of whether moratoriums can be retroactive is a common one. The general rule is that a moratorium does not apply to “pending proceedings”—permit applications for which substantive review has commenced. But this general rule may be overruled by a municipality with very careful planning and drafting. How far back a moratorium may apply is a question that must be discussed with legal counsel because it is an open issue of the law and depends greatly on the specific facts and circumstances. Municipalities should be cautious about retroactivity because it implicates private property rights and vested interests.
In conclusion, moratoriums are a valuable tool in municipal and land use law, allowing local governments to address pressing issues and make informed decisions about development and zoning. However, their enactment and limitations vary depending on your jurisdiction. It’s crucial to work with knowledgeable legal professionals who can guide you through the process and ensure that moratoriums are used effectively and within the bounds of the law.
For more detailed guidance on moratoriums and their application in your specific case, don’t hesitate to reach out to our municipal and land use attorneys. We have a wealth of experience in this area and are ready to assist you in navigating the intricacies of municipal and land use law.