65-407 C.M.R. ch. 885
SUMMARY: This Chapter establishes the procedures and standards that govern public utility and energy infrastructure developer requests for exemptions from municipal zoning ordinances and Land Use Regulation Commission regulations.
| § 1 | PURPOSE | 2 |
|---|---|---|
| § 2 | DEFINITIONS | 2 |
| § 3 | PETITION FOR EXEMPTION | 2 |
| A. | Petition | 2 |
| B. | Municipal or LURC Review | 2 |
| C. | Prior Project Approval | 3 |
| D. | Court or Local Review | 3 |
| E. | Contents | 3 |
| § 4 | PROCEDURES FOR REVIEW | 4 |
| A. | Filing | 4 |
| B. | Notice and Opportunity for Intervention | 4 |
| C. | Public Hearing | 4 |
| D. | Commission Order | 4 |
| § 5 | STANDARDS FOR GRANTING EXEMPTION | 4 |
| A. | Impact on Development | 4 |
| B. | Ratepayer or Public Interest | 4 |
| § 6 | WAIVER OR EXEMPTION | 5 |
The purpose of this Chapter is to establish procedures and standards to govern public utility and energy infrastructure developer requests for the Commission to grant exemptions from municipal zoning ordinances and Land Use Regulation Commission regulations.
A. Commission. “Commission” means the Maine Public Utilities Commission. B. Corridor Developer. “Corridor developer” means a person that seeks to develop an energy corridor project. C. Energy Corridor Project. “Energy corridor project” means the development of energy infrastructure as defined in Title 35-A, section 122, subsection 1, paragraph B within an energy infrastructure corridor pursuant to Title 35-A, section 122. D. LURC. “LURC” means the Maine Land Use Regulation Commission. E. Public Utility. “Public utility” has the same meaning as defined in Title 35-A, section 102, subsection 13. F. Public Utility Project. “Public utility project” means the development of infrastructure or other construction by a public utility that is necessary or useful to furnish safe, reasonable and adequate facilities and service.
A. Petition. A public utility or corridor developer may seek a whole or partial Commission exemption from a municipal zoning ordinance or LURC regulation applicable to a public utility project or energy corridor project through a petition for exemption. B. Municipal or LURC Review. A public utility or corridor developer may not file a petition for exemption until after the following has occurred:
1. the public utility or corridor developer has requested the applicable municipal planning board or LURC to issue a permit or other ruling required by a municipal zoning ordinance or LURC regulation or has requested a modification, variance, exception, waiver or other action from the municipal planning board or LURC necessary for the development of the public utility project or energy corridor project;
2. the municipal planning board or LURC has issued a denial of the request in whole or in part or has granted the request with conditions;
3. the denial of the request or the granting of the request with conditions has the effect of prohibiting the development the public utility project or the energy corridor project, rendering the development of the project uneconomic, or significantly increasing the costs of the project.; and
1. 4. the public utility or corridor developer has informed the applicable municipal planning board or LURC of the impact of the granting of the request with conditions on the public utility project or the energy corridor project.C. Prior Project Approval. A petition for exemption for projects that require prior Commission approval must be filed as specified in this subsection.1. 1. Transmission lines. A public utility may not file a petition for exemption for the construction of a transmission line of 69 kilovolts or more unless it has obtained a certificate of public convenience and necessity from the Commission as required by Title 35-A, section 3132.
2. 2. Energy Corridor Projects. A corridor developer may not file a petition for exemption for the construction of an energy corridor project unless it has obtained a corridor use certificate from the Commission as required by Title 35-A, section 122, subsections 4 and 5.
3. 3. Other Utility Projects. A public utility may not file a petition for exemption for the construction of a public utility project that requires prior Commission approval until after that approval is obtained.D. Court or Local Review1. 1. Denied Request. A public utility or corridor developer is not required to seek review, or an appeal from a court or a municipal board of appeal of the municipal planning board or LURC determination or ruling required by subsection B prior to filing a petition for exemption. A public utility or corridor developer that seeks a court or municipal board of appeal review or appeal may not file a petition for exemption while the review or appeal proceeding is pending.
2. 2. Granted Request. A public utility or corridor developers may file a petition for exemption during the pendency of a court or municipal board of appeal review or appeal proceeding filed by an entity other than the public utility or corridor developer.E. Contents. A petition for exemption must include:1. 1. a copy of the municipal ordinance or LURC regulation from which an exemption is sought;
2. 2. a copy of the decision or ruling of the municipality or LURC denying or granting with conditions the necessary permit, or modification, variance, exception, or waiver from the municipal ordinance or LURC regulation, and related decisions of a reviewing body, if any;
3. 3. a statement explaining that the denial of the request or the granting of the request with conditions has the effect of preventing the development of the public utility project or the energy corridor project, of rendering the development of the project uneconomic, of significantly increasing the costs of the project; and
4. a statement explaining that a Commission exemption from the applicable ordinance or regulation is necessary or desirable for the public welfare and convenience and otherwise satisfies the standards contained in this Chapter.
A. Filing. The public utility or corridor developer shall file the petition for exemption with the Commission and provide a copy of the petition for exemption to the municipality or LURC, as applicable. The copy of the petition to the municipality shall be provided the municipal clerk, the chairman of the planning board, and chairman of the board of appeals if an appeal was filed.
B. Notice and Opportunity for Intervention. The Commission shall provide notice of the filing of a petition for exemption and an opportunity for intervention to the municipality or LURC as applicable, the Public Advocate, all parties in any prior Commission proceedings involving the approval of the public utility project or energy corridor project, all parties to the LURC proceeding if an exemption is sought from a LURC regulation, all persons entitled to notice of the request for a municipal permit if an exemption is sought from a municipal ordinance, and to other interested persons.
C. Public Hearing. The Commission shall conduct a public hearing on the petition for exemption and shall provide parties the opportunity to submit evidence and argument.
D. Commission Order. The Commission shall issue an order on the petition for exemption. The Order shall address the relevant evidence and arguments presented by the parties and determine whether the public utility or the corridor developer has met the standards for granting an exemption as stated in section 5 of this Chapter.
To exempt a public utility project or an energy corridor project wholly or partially from a municipal zoning ordinance or a LURC regulation, the Commission must determine that the exemption is necessary or desirable for the public welfare and convenience. A determination that the exemption is necessary or desirable for the public welfare or convenience must be based on the findings specified in subsections A and B.
A. Impact on Development. The whole or partial exemption of the municipal ordinance or LURC regulation is necessary to allow the public utility project or energy corridor project to be developed, to render the project economic or to avoid a significant increase in the costs of the project.
B. Ratepayer or Public Interest. The interests of the general body of ratepayers with respect to a public utility project or the broad public interest with respect to an energy corridor project outweigh the interests represented by the municipal ordinance or the LURC regulation.
Upon the request of any person subject to this Chapter or upon its own motion, the Commission may, for good cause, waive any requirement of this Chapter that is not required by statute. The waiver may not be inconsistent with the purposes of this Chapter or Title 35-A. The Commission, the Director of Technical Analysis, or the presiding officer assigned to a proceeding related to this Chapter may grant the waiver.
STATUTORY AUTHORITY: 35-A M.R.S.A. §§ 104, 111; 12 M.R.S.A. §685-A(11); 30-A M.R.S.A. §4352(4)
EFFECTIVE DATE: This rule was approved as to form and legality by the Attorney General on September 10, 2008. It was filed with the Secretary of State on October 20, 2008 and became effective on October 25, 2008.