by Jon Lund
The process for consideration of Plum Creek’s Moosehead Lake development plan has gone badly astray and would set a dangerous precedent that Maine people would live with for years to come. That’s the substance of what I and seven other attorneys with decades of experience with Maine’s environmental and land use laws said in a recent letter to Maine’s Land Use Regulation Commission (LURC).
A follow-up discussion by this group of attorneys with LURC staff and consultants did nothing to allay our concerns. Rather, we remain as convinced as ever that the deal that LURC is trying to work out with Plum Creek is going in the wrong direction.
Here’s the problem: Plum Creek has proposed a very large development in one of Maine’s most special places, the Moosehead Lake region. The proposed development would have negative environmental impacts, so PlumCreek is required by statute and regulation to offset, or mitigate, those negative impacts by donating conservation lands to strike a “publicly beneficial balance.”
Because the area of the proposed development has spectacular wildlife, aesthetic, recreational and natural resource values, the company has an obligation to propose significant mitigation. Plum Creek has offered as mitigation conservation easements on 91,000 acres of land where timber harvesting would be allowed, but most but not all development would be prohibited.
LURC evaluated both Plum Creek’s proposed development and their proposed conservation and concluded that the conservation side of the equation was insufficient. The “publicly beneficial balance” required to earn a permit had not been achieved. And here is where the process went off track.
Rather than require more conservation, or less development, the commission decided to consider a separate, privately-negotiated, paid-for land conservation deal between Plum Creek and The Nature Conservancy (TNC). In a set of proposed amendments to the Plum Creek plan, LURC would allow Plum Creek to claim conservation land in that deal as credit to offset the harm caused by the Moosehead Lake development plan. This is a bad idea that could haunt Maine’s land use and regulatory agencies well into the future.
TNC will pay Plum Creek $35 million for the land conservation deal, known as the Conservation Framework, near Moosehead Lake. That’s fine. Nobody objects to a privately negotiated contract to conserve land. But the TNC deal is irrelevant to Plum Creek’s application for rezoning around Moosehead Lake.
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 land 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.
Having served as Maine attorney general, I can anticipate just what will happen. If Plum Creek is allowed to double-dip in this fashion, then any attorney advising a future developer would be negligent if they didn’t encourage them to do the same thing. Shortchange the public with your proposed mitigation lands, negotiate a separate conservation deal with a land trust, threaten to walk from the conservation deal if you don’t get your permit, and then hope that you end up getting paid for land that you otherwise would have been required to donate as mitigation. What a deal — sell your land for cash and get mitigation benefits, too.
LURC is proposing that Plum Creek be required to complete the deal with TNC before they can receive a development permit. But unless one believes that TNC wasn’t serious about completing the transaction, this requirement would provide the public with no value that was not otherwise expected. More important, insisting on completion of the Conservation Framework does not make it any more relevant from the perspective of ensuring that Plum Creek’s Moosehead Plan meets the “publicly beneficial balance” test required by law.
The Conservation Framework is now having a prejudicial influence on the commission. Plum Creek has cleverly set this trap, and now it is up to LURC to find its way out. The proposed $35 million deal between TNC and Plum Creek cannot and should not be considered as mitigation, eligible to be balanced with the adverse development impacts from Plum Creek’s Moosehead Lake plan.
Although LURC has not made its decision, the commission’s staff and consultants seem prepared to accept this scheme. And that’s what is so unsettling to me and the seven attorneys who signed our letter to LURC.
The proper path for this proceeding would be for LURC to require that Plum Creek reduce its proposed development, preferably at an area like Lily Bay, which has received such strong opposition, and insist that Plum Creek donate additional, new conservation. That is how a publicly beneficial balance could be met.
It would be a tragedy if LURC fell for Plum Creek’s gambit. No developer should get paid for land that it should instead be required to donate as mitigation for the negative environmental impacts of a proposed development. Fortunately, it’s not too late for LURC to get back on track.