Op-Ed
The continuing battle for the soul of York's Comprehensive Plan
By Torbert Macdonald, Jr.
Last week in a letter to the editor I asserted that everywhere one looks, governments are not performing to people's expectations-and our little town is no exception. The citizens of York have, on their initiative, created our growth control ordinance in August, 2000, and then reaffirmed it in November, 2000, and May of both 2003 and 2006. Thus, the people have made absolutely clear their intention that government should control and manage growth in the public interest. Yet a consistent flow of pro-growth/development ordinances and Comprehensive Plan changes continues to emanate from the Planning Department, Planning Board and Board of Selectmen, including this November's warrant, especially items 7-19.To explain this disparity between what the people vote for and what they get, I suggest the organizing principle of two conflicting schools of political thought - what I will call the "Legal/Constitutional" school vs. the "Corporate Model of Municipal Governance." Using such a scheme will hopefully avoid the finger-pointing, name-calling brands of political disagreement that have obviously characterized our recent past. I will define the "schools" as follows.
LEGAL/CONSTITUTIONAL: Under the U.S. Constitution, there are only two sovereign governmental entities - the Federal government, with its three counter balancing institutions and defined powers, and the sovereign states to which all powers not explicitly allocated to the federal institutions are delegated. Thus, municipalities are not a constitutional entity but rather some form of political subdivision of the sovereign state, which in Maine takes the form of a municipal corporation. Thus even under our Home Rule Authority, local autonomy is limited and in the case of land use laws, virtually non-existent. The municipal corporation must meet all appropriate state standards and may only deviate from them by adopting stricter standards, never less strict. While annoying to those who think that the Home Rule concept should be absolute, this hierarchy of government levels is constitutionally based and legally binding.
THE CORPORATE MODEL: This school, of relatively recent origin but dominant in York electoral politics over the last 20 years, seizes on the concept of a municipal corporation not as a political subdivision of the state but rather an analog to the corporation format so common to the business world. In this school of thought, York is a corporation with assets of $3.5-plus billion (assessed real estate value), the town manager is the chief executive officer (CEO) and the Board of Selectmen is the corporate board of directors. While superficially attractive to those of a private corporate management tendency, this perspective tends to relegate the citizenry to the status of mere shareholders. Rather than positing all legitimacy with the people and their legislative body, the shareholder concept reduces the autonomous citizen to merely one of a class of consumers of government services and, even worse, implies more voting power for those who hold a greater share of the municipal corporation's assets - the wealthy, large landowners and big business. Remember, according to the U.S. Supreme Court of the 19th century, a corporation is a legal person with all the rights of an individual. This archaic notion underlies most of the corporate influence wielding that has so distorted our national legislature. When Exxon/Mobil and you are in the same class of entities, you don't exist at all; same with you, as citizen, and real estate development as shareholders in this misperception of the municipal corporation.
Worse still, if your and my property are submerged into the class of real estate "assets" of the municipal corporation, all other values - community, energy, school, natural and environmental values among others - may well be subjugated to the process of "asset enhancement". Asset enhancement could, I admit, be perceived as improved delivery of town services. But for the last 15 or so years, the municipal corporate majority on the Board of Selectmen and the Planning Board has, with the technical assistance of the Planning Department, had an unspoken but obvious enough policy of "growing the asset base" in corporate speak, or more plainly, promoting growth/development even against the demonstrated wishes of the citizenry that growth be controlled and managed for the public good, not private gain.
In fact, these public intentions have been codified since the late 1980s in the state Growth Management Law, under which direction we have been mandated to create a Comprehensive Plan and to make our ordinance body consistent with it. This law is a prime example of the constitutional/legal model of local government - the sovereign state sets the policy framework, the locality adapts it to local circumstances based on natural resource values as discovered and integrated into the planning/ordinance process.
However, the corporate model majority has consistently transformed that planning and regulatory apparatus into a sometimes subtle, sometimes not, tool of development, leaving the intended policy goals of the Growth Management Law - of protecting and preserving the public commons, the oceans, natural waterways, beaches, wetlands and drainage ways, wildlife, etc. - to languish.
With the exception of amendment 17 on the November town warrant, which furthers the protection of the Mount Agamenticus area, all the Comp Plan amendments are helpful to the expansion of development.
Two deserve special scrutiny: amendments 7 and 19. Amendment 7 would, by reference to mapped changes (no copy of these mapped changes was given to the public with the official town warrant), expand the growth area required by law to the western side of Route 1 - in clear contradiction to common sense, good planning and the language of the current plan, which limits the growth area to the east side of Route 1 between the York and Cape Neddick Rivers.
Furthermore, this expansion is to be allowed in an area so stony-boned that in the 17th century it was known as "The Rocky Ground." This area also contains one of the town's largest wetlands, the Whippoorwill Swamp, and an engineered canal that diverts huge volumes of drainage flow from this area to the Cape Neddick River. This flow is already so large that it was a major factor in blowing out the Cape Neddick River Bridge. To expand into this area with growth area densities portends a nightmare for future flooding. In fact, this area is part of a recommended enhanced water storage zone in the new York Beach drainage study. What are we thinking about? "Growing the asset base?"
Amendment 19. This change basically validates the corporate model majority's not benign neglect of the natural resource policy basis for the Comp Plan by removing specifics in the CP that are not reflected in the ordinance body. This is the exact opposite of how the constitutional/legal model dictates that local law change to reflect the CP, the policy document. The corporate model majority would rather change the policy that the state and the York citizenry have mandated. Certainly this is gaming the system at its worst.
I suggest the following to the citizens of York:
- Except for amendment 17, vote No on all Comp Plan amendments, 7-19.
- Demand of your government the implementation of the Comp Plan you created in response to the state mandate.
- Be more involved in your government from a constitutional/legal perspective. VOTE!
- Sponsor new candidates to the Board of Selectmen who do not subscribe to the pro-development, corporate model school of thought.
- Hold your government accountable for growth management and control in the public interest.
