Local preference: pricey proposition?
By Gail Geraghty
If the Bridgton Board of Selectmen wants to break new legal ground by requiring developers of apartment projects to give preference to local residents, they have two choices. Either spend a lot of money on legal advice, or forge ahead without it, and hope a local preference ordinance will stand up in court.
Community Development Committee member Mark Lopez believes the town ought to take the risk, and become the first municipality in Maine to adopt a local preference housing ordinance. He said the CDC voted to recommend that selectmen draft a local preference ordinance to go before voters in November, after members attended an informational meeting in Bridgton by Avesta Housing, Inc. on their plans to build a 21-unit affordable housing complex on the former Chapter 11 property on Main Street.
“They (Avesta officials) said that the possibility exists that not a single Bridgton resident would be living there,” Lopez told the board Tuesday.
Lopez argued that local preference is allowed on the federal level when it comes to housing, and since it isn’t specifically prohibited in Maine law, it should be allowed. A third reason for going ahead with bringing a local preference ordinance before voters, he said, is that Maine is a home rule state.
Besides, Lopez said, a legal opinion is, “at the end of the day,” just one man’s opinion. The town could spend many thousands of dollars on legal advice on the town’s right to assert local preference, and it still “could be a black hole that you pour money into.”
Selectmen, acting on a suggestion by CDC member Chuck Renneker, voted to ask Town Counsel Richard Spencer of Drummond Woodsum to give the town an estimate of how much it will cost to research and help draft a legally-defensible local preference ordinance. So far, the town has incurred $4,000 in legal costs from meetings and conference calls between Spencer and the three town employees assigned to research the issue: Anne Krieg, director of planning, economic and community development; Robbie Baker, code enforcement officer; and Georgiann Fleck, executive assistant.
In a memo summarizing a July 18 conference call with Spencer and the town employees, Krieg wrote that “It was clear amongst the group that the level of research required to ensure that the (local preference) requirement is defensible will take considerable time,” and that “the requirement may still be challenged, and the town should be made aware of this likelihood.”
Krieg said that the legal research and review on municipal authority, even under Home Rule, will require “an extensive review, as there is no other known Maine municipality that has this requirement, nor is there case law; local preference in other communities is often a policy of a local housing authority, which is distinct.”
Krieg said she has sent the work she has prepared thus far to Avesta officials, “as their preliminary plan would fall under this requirement.” She said Avesta has not responded with any opinion, but that she may formally ask them to comment, “as it will help the research to know what the arguments or challenges are from a possible applicant.”
Selectman Bob McHatton, while saying “I absolutely believe in local preference,” said “I also believe in knowing how much it will cost.” Selectman Chairman Paul Hoyt agreed, saying, “You took the words right out of my mouth.”
Town Manager Mitch Berkowitz said one problematic factor is that selectmen cannot base a decision on whether or not to draft a local preference ordinance on case law from other states. Some court rulings in other states have upheld a municipality’s right to impose local preference, while others have found such ordinances to be a violation of fair housing laws designed to prevent housing discrimination.
Berkowitz said he has been taking a “conservative” approach in researching the matter thus far, and that the Secretary of State “isn’t going to render an opinion,” and the Maine Municipal Association “wouldn’t touch it.” But he added that if the board requested it, he and Krieg could adopt a more politically-active approach, and “run it up the flagpole” with state officials.
Mchatton said it was possible that the town could spend a lot on legal advice, only to find that Avesta has decided to abandon the Bridgton project. Selectman Doug Taft said that the town needs to look 10 or 15 years into the future, in any case, to address the town’s policy regarding affordable housing projects.
One resident disagreed with Lopez’s suggestion that the board go ahead with drafting a local preference ordinance and deal with any legal challenges that might come from it, saying it would be “really reckless” to pursue such a course of action.