Transcript Overseeing Natural Gas & Other Private Sector Projects

Overseeing Natural Gas & Other
Private Sector Projects
Philip Saucier, Esq.
Maine Rural Water Association
December 9, 2014
Agenda
• FOAA
• Land Use & Planning Tools – General
• Land Use & Planning Tools – Natural Gas
• Phil Saucier
Integrity of the Governmental Process
• Conflicts of Interest
• Relationships
• Bias
Maine Freedom of Access Act
• Public Records
• Public Proceedings
Responding to a FOAA Request
• Acknowledge request and provide an estimate of time and
cost within 5 days
• Denial in writing within 5 working days
• Locate responsive records and redact exempt information
• Respond to requester with the documents within a
reasonable time
• Schedule inspection, conversion, or copying during
reasonable office hours
Public Records Exceptions
Common Exceptions
• Records designated confidential by statute
• Statutory exceptions include personnel records, certain TIF
submissions, forest management plans (tree growth and open
space programs), poverty abatement records applications, and
certain GA applications
• Information contained in a communication between a
constituent and an elected official if the information: is of a
personal nature including medical information, credit or
financial info, personal history, social security number, or
complaints, charges of misconduct or other materials
pertaining to disciplinary action.
• Juvenile records
• Investigations
Fees
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•
$15/hour (up from $10) after the first hour for time spent searching,
retrieving, compiling or redacting
Reasonable fee for copying; actual costs for conversion and mailing
•
If estimate of costs is greater than $30 (up from $20), must notify requester
before proceeding; if costs exceed $100, payment in advance can be
required
•
Fee waivers can be granted if requester is indigent, or the agency or official
considers release of the public record to be in the public interest because
doing so is likely to contribute significantly to public understanding of the
operations or activities of government, and is not primarily in the
commercial interest of the requester
Development Review Building Blocks
• Comprehensive Plan
• Zoning Ordinance
• Site Plan and
Subdivision Ordinances
• Building Permits
Municipal Boards and Officials
• Code Enforcement Officer
• Zoning Board of Appeals
• Planning Board
Variances
• Undue Hardship
• Practical Difficulty
• Disability
Specific Planning Tools
• Conditional and Contract Zones
• Impact Fees
• Moratoria
Specific Planning ToolsConditional and Contract Zones
Specific Planning ToolsImpact Fees
Impact Fees Continued
Specific Planning Tools- Moratoria
Requirements:
• Necessity
• Definite Term
30-A M.R.S. § 4356
Legal Considerations
Conditions of Approval
Koontz v. St. Johns River Water Management District,
133 S.Ct. 2586 (2013)
• The government must show that there is a nexus
and rough proportionality between a demand or
condition of approval for a landowner and the effects
of the proposed land use.
Legal Considerations
Eminent Domain- Economic Development
Kelo v. City of New London, 543 U.S. 469 (2005)
• Fifth Amendment’s public use clause allows taking of private
property to promote economic development by transferring the
property to another private interest for redevelopment
BUT- see Maine law limitations on eminent domain authority
enacted post-Kelo at 1 M.R.S. § 816
Natural Gas
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Where is natural gas
How natural gas gets to Maine
Who the players are
Who regulates this industry
Overview of the Industry – Another
View from the Web
Interstate Pipeline System
Credit: Mexico Institute (TX to Mexico) – on left; Bernard Pipeline Company – on right
NATURAL GAS INFRASTRUCTURE IN NEW ENGLAND
Credit: EIA
Maine Distribution Infrastructure
Four Utilities or Local Distribution
Companies (LDCs) are authorized to
operate natural gas distribution
franchises in Maine:
• Northern Utilities d/b/a Unitil
• Bangor Gas Companies, LLC
• Maine Natural Gas Corporation
• Summit Natural Gas of Maine,
Credit: EIA on left; MPUC on right
Inc.
Who’s on first? Regulation of natural gas service
• Key Federal Agencies
• State Government - Maine Public Utilities
Commission
• Public Utility Formation & Franchise Territories
Regulation of natural gas pipeline services:
FERC
•
Pipeline, storage, and liquefied natural gas facility construction.
•
Natural gas transportation
•
Certificate of Public Convenience
and Necessity
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Facility abandonment
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Wholesale rates
•
U.S. points of entry
•
Market manipulation
Regulation of natural gas pipelines: US Gov’t
• Federal Department of Transportation
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Pipeline and Hazardous Materials Safety Administration
(PHMSA)
• National Transportation Safety Board
• Commodity Futures Trading
Commission
Regulation of natural gas distribution: MPUC
•
Rates and terms of service
•
Sales, acquisitions or mergers
•
Safety
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Gas purchasing strategies and pricing options
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Federal proceedings
Municipal Regulation of Natural Gas
Facilities
• Subject to state and federal preemption
• Local ordinances may control certain
facilities and the documentation of gas
lines
• Street openings
• Safety
Placing Pipelines in Public Ways
Natural gas pipeline utilities and gas utilities have explicit authority
to lay their pipelines “in, along and under the roads and streets in
any municipalities” in which they are authorized to provide
service, subject to the requirement for a written location permit.
35-A M.R.S.A §§ 2302, 2304, 2501 et seq.
Regulation of activities near or in a
street or public way
• Protection of underground facilities - 23 M.R.S.A. § 3360-A
• Location permit. 35-A M.R.S.A § 2503
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Public hearing
May condition approval on issues related to public safety and the public’s
interest in use of the roadway.
•
“requirements deemed necessary in the best interests of the public safety and use of the
right-of-way so as not to incommode use for public travel.” Town of Windham v. Portland
Water District, 537 A.2d 216, 220, n. 9 (Me. 1988).
Regulation of activities near or in a
street or public way
• Dig Safe and notice requirements
• Documenting Pipeline Location – GIS Mapping
• Municipalities may develop a plan with various utilities for
standardized horizontal and vertical locations for the utility
lines.
Zoning and Planning
• Safety
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Risk of explosion and fire
Maintenance inspections
Construction Impacts
• Above ground facilities
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Location
Aesthetic Impacts
Noise impacts
Construction Impacts
Disclaimer
This presentation and the information provided does
not constitute professional legal advice. It does not
form a relationship and cannot take the place of
consulting directly and individually with experienced
and knowledgeable counsel.
The information presented today represents the
opinions of the individuals on the panel only. It is
not intended to represent the opinion or position of
the law firm or any present or future client of
Bernstein Shur.
Thank you
Philip Saucier, Esq.
[email protected]
207-228-7160