AGO 2009-04.

• Case Date: April 30, 2009
• Court: Maine

Maine Attorney General Opinions 2009. AGO 2009-04. 2009-04April 30, 2009The Honorable Deborah L. Simpson, Senate ChairThe Honorable Stephen R. Beaudette, House Chair Joint Standing Committee on State and Local Government 100 State House Station Augusta, ME 04333-100 Dear Senator Simpson, Representative Beaudette, and Members of the Committee: By letter dated April 16, 2009, you asked for legal advice in response to testimony presented by Curtis Webber, Esq., at the public hearing on L.D. 242 suggesting that the Informed Growth Act violates the dormant Commerce Clause as well as antitrust laws. Specifically, Mr. Webber takes the position that these violations result from a provision in existing law requiring the developer of a new big box store to demonstrate that it will not have a negative impact on existing businesses and jobs. For the reasons that follow, we believe that the Informed Growth Act can be defended against these challenges. The Informed Growth Act The Informed Growth Act (the "Act"), 30-A M.R.S.A. § 4365, et seq., imposes certain restrictions on large-scale retail development in Maine (i.e., retail business establishments with at least 75,000 square feet of floor area). The Act does not prohibit such development, but does provide that the local planning board or other municipal reviewing authority may issue a land use permit for large-scale retail development only if it determines that there is likely to be no "undue adverse impact," which is defined as follows:

"Undue adverse impact" means that, within the comprehensive economic impact area, the estimated overall negative effects on the factors listed for consideration in section 4367, subsection 4 outweigh the estimated overall positive effects on those factors and that the estimated negative effects of at least 2 of the factors listed in section 4367, subsection 4, paragraph A outweigh the positive effects on those factors.

30-A M.R.S.A. § 4366(10). The referenced language in § 4367(4) provides:

4. Comprehensive economic impact study. The comprehensive economic impact study must be completed within 4 months of the filing of the application and must be made available to the municipal reviewing authority, the applicant and the public. It must estimate the effects of the large-scale retail development as set out in this subsection.

A. The comprehensive economic impact study, using existing studies and data and through the collection and analysis of new data, must identify the

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