Town Helps Residents End Water Rationing

Tuesday, January 9, 2018

In follow-up to our post last week, a real world example of when it is necessary for a municipality to intervene in a landlord tenant situation arose in Brunswick.

Because the wells were failing to keep up with demand of the 1,200 residents of the Bay Bridge Estates Mobile Home Park, its owners began rationing water by restricting supply during what they considered off-peak times during the day. This caused numerous complaints to the Town office from residents who were unable to adequately bathe, wash dishes, and do laundry. As Town Attorney for Brunswick, we sent a letter to the owners of the park pursuant to 14 M.R.S. § 6026-A, demanding that they provide both a short-term and long-term plan to address the water shortage within twenty-four hours. What followed was an exchange of correspondence, emails, and conference calls, which resulted in the owners agreeing to immediately begin drilling a new well and to pay, in the meantime, for water to be provided by the Brunswick Topsham Water District to fill their twelve 5,000-gallon storage tanks as necessary. The trucking of water allows residents to have full access to water without rationing or other restrictions. 

The new well is expected to be online by January 19, and will meet all anticipated water needs for the park going forward. In this case, on behalf of the Town, we were able to assist the residents through the crisis. The Town did not have to expend the costs of trucking the water, but was willing and prepared to do so and recover its costs under the statute if the owners had not agreed. This is clearly a case where it was necessary and helpful for a municipality to intervene in a dispute between tenants and their landlord.

Habitability of Rental Property – What Can/Should a Municipality Do?

Friday, January 5, 2018

Municipal officials are often asked to intervene when landlords fail to keep up rental properties to the satisfaction of their tenants. But when can—and should—municipalities get involved in these often thorny situations? Generally speaking, towns should make it their practice to simply advise upset tenants that they should consult with legal counsel or a legal services agency to try to resolve the issues. However, when there are significant health and safety issues at hand, such as malfunctioning sewer or septic systems, water shortages, or highly dangerous maintenance issues involved, municipalities do have some authority to intervene. 

Under 14 M.R.S. § 6026-A, a municipality may intervene to provide maintenance, repairs, or utilities if a landlord has failed to meet its obligation to provide them, causing an immediate threat to the habitability of the leased premises. To do so, the municipality must first make an effort to contact the landlord in person, by phone, or by certified mail to inform the landlord of the problem and of the municipality’s intent to intervene. If the landlord cannot be contacted or does not respond by the deadline set by the municipality, the municipality may provide the services and place a lien on the property for the cost of the services and any related administrative costs (this would include legal fees). Note that the lien is neither top-priority nor self-foreclosing, unlike other municipal liens. (See the statute for further details.) Towns with a large number of rental properties may want to consider appropriating money to a designated account to fund these situations.

In certain situations, municipalities may also have recourse through their own property maintenance ordinances, as well as the dangerous building law (17 M.R.S. § 2851), and/or the local health officer statutes (22 M.R.S. §§ 454-A; 1561). The dangerous building law is generally used when a building or rental unit is in such a state of disrepair that it is clearly unsafe for habitation. The laws enforced by the local health officer are more appropriate when dealing with accumulation of trash, mold, or other “sources of filth.” 

When dealing with rental property, municipal officials may enter and inspect leased premises on invitation by the tenant. Any notices should be sent to the property owner and (if any) maintenance company, and copied to the tenants. As long as the municipality makes a good effort to follow the procedures under the applicable statute, there should be no liability to either the landlord or the tenant. Most of the decisions made and actions taken under these statutes are discretionary decisions for which there is immunity under the Maine Tort Claims Act.

Code Enforcement Officer’s Right to Enter Property to Inspect for Code Violations Challenged

Tuesday, December 12, 2017

Title 30-A § 4452 allows code enforcement officers (CEOs) and other local officials who are specifically tasked with enforcing local ordinances the right to go on a potential violator’s property to determine if violations exist. The statute requires permission from the property owner if a local official wishes to inspect inside a building, but specifically states that such an entry onto property under the authority of the statute is not a trespass. Pursuant to the Fourth Amendment, however, there is a question about inspecting the curtilage, being the area directly around someone’s home. Although there is no Maine case law directly on point, a local official should not enter onto property closely in the vicinity of the home without permission.

The bigger question is what should happen when permission to enter property is refused by the property owner even though the local official has the right to go onto the property under the law.

In a recent case that we handled for a Central Maine town, there was a dispute between the local official and the property owner as to whether the CEO was allowed to enter onto the property, although not in the vicinity of a home. When the CEO and the Town Manager arrived for a previously noticed inspection, the property owner called the police and then kept repeatedly jumping in front of the town vehicle when the officials tried to leave. After consultation with the District Attorney, the Maine State Police served criminal trespass orders on the CEO and the Town Manager.

Additionally, by failing to state in his pleadings that the parties allegedly harassing him were town officials, who were at his property on official town business, the property owner was able to obtain a Protection from Harassment Order in District Court against the town officials. 

As the town attorneys, we were able to convince the District Attorney to drop the criminal trespass orders with the agreement that the town would not go back onto that particular piece of property without an administrative consent warrant. The District Attorney was unaware of the statute and thought that the right thing was being done to prevent violence. It was necessary to file motions to dissolve the temporary orders and dismiss the harassment cases in District Court. The cases were dismissed without hearing.

The caveat to broad inspection authority under the statute is that, while town officials have the right to enter onto property to inspect for violations, they should be cautious about exercising this right, and would be wise not to insist on entrance onto property if the property owner objects.

Maine Court Reiterates That Private Persons Do Not Have Standing to Enforce Land Use Ordinances

Tuesday, December 5, 2017

The Maine Superior Court recently issued a decision reiterating that only municipalities have the authority to enforce land use regulations. The decision is a reminder that private persons are not entitled to sue for enforcement of a land use ordinance and that, if they do, any such action may be dismissed.

At issue in Emanuel v. Town of Bristol was the use of a refrigerated trailer at a lobster wharf, which several nearby residents objected to because the trailer was loud and ran at unpredictable intervals. After the wharf owner did not respond to the residents’ concerns, the residents contacted the town with their objections, claiming that the trailer was being used without prior review or approval by the Town’s planning board or code enforcement officer (CEO). The residents requested that the Town require the wharf to obtain a planning board permit. In response, the Town’s CEO explained the trailer was not a “structure” requiring a permit and that, because there was no consequent violation of the shoreland zoning ordinance (SZO), the Town would not issue a notice of violation. The residents appealed the Town’s decision to the Superior Court.

On appeal, the Superior Court pointed to two previous decisions from Maine’s Law Court, both of which found that private persons did not have standing to initiate enforcement proceedings against their neighbors. Based on these decisions, as well as the language of the SZO, the Superior Court found that it is the duty of the CEO, not private persons, to enforce the SZO and to investigate complaints of alleged violations. And, if the CEO’s actions do not result in an abatement of the violation, then it is the municipal officers of the Town who have the authority to initiate legal action – not private persons.

Let’s Talk Municipal Finance – Tax Anticipation Notes and Bond Anticipation Notes

Tuesday, November 21, 2017

In this installment of the Let's Talk Municipal Finance series, I will discuss two short-term alternatives to the issuance of long-term bonds for municipalities to access needed funds. These alternatives have a shorter maturity period and are either anticipated to be repaid by long-term bonds or other municipal revenue.

Tax Anticipation Notes

Tax anticipation notes, commonly referred to as TANs, are a form of municipal borrowing with a maturity date often less than one year from the date of issuance, payable from anticipated tax revenues of the municipality. In Maine, the issuance of a TAN is authorized by 30-A M.R.S.A. § 5771. In addition to authorizing the issuance of a TAN, Section 5771 puts certain restrictions on both the amount and the maturity date – the amount of the TAN is limited in relation to the total tax levy of the municipality in previous years and the maturity date is generally limited to one month after the end of the municipal year in which the note was issued.

The interest on payments on TANs is excludable from gross income under section 103 of the Internal Revenue Code. Unlike bonds, most TANs are typically issued directly through a bank to which the payments of principal and interest will eventually be made. As the name suggests, the funds used to make those payments are limited by statute to those raised out of taxes paid to the municipality; however, unlike some bonds, the funds can be used for general municipal purposes and need not be tied to a specific purpose. Therefore, the process required for a municipality to issue a TAN is much simpler than that required of a long-term bond, although certain documents, including a legal opinion on matters such as the tax exempt nature of the interest paid on the TAN, are usually required by the bank.

Bond Anticipation Notes

Bond anticipation notes, commonly referred to as BANs, are also a form of municipal borrowing, but share more characteristics with long-term bonds than a TAN. The key difference between a BAN and a TAN is that the municipality usually cites a specific purpose for issuing the BAN, which must be the same purpose as the anticipated long-term bond that the municipality intends to eventually issue to repay the BAN. BANs are subject to statutory requirements under 30-A M.R.S.A. § 5772, including a maximum face amount of the BAN not exceeding the authorized amount of the anticipated bond and a maximum period of borrowing of three years. Some municipal charters may also contain additional requirements or limitations for the issuance of BANs.

Ethan Anderson practices with Preti Flaherty's Municipal Law and Business Law practice groups, focusing on public finance, mergers and acquisitions, and contract matters.

New Deadline for Calling Secret Ballot Elections in Maine

Thursday, November 16, 2017

One of those deadlines municipal officials tend to know off the top of their heads is that referendum elections must be ordered at least 45 days in advance. This has now changed! The Maine Legislature in its last session changed the filing deadline for nomination papers from 45 days to 60 days prior to the election. Because the deadline for calling a referendum election is, under 30-A M.R.S.A. § 2528(5), the same as the deadline for filing nomination papers, both now fall on the 60th day prior to the election. This new deadline applies both to referendum questions ordered by the municipal officers and those requested by citizens’ petition. If your town has a different deadline under a local charter, that deadline will still apply regardless of this law change.

Maine Superior Court Upholds Refusal to Honor Citizens’ Petition

Tuesday, November 14, 2017

The Town of Brunswick recently prevailed in a case regarding the Town Council’s decision to sell a waterfront property that had been acquired through tax foreclosure. The plaintiffs, several citizens, had presented a petition to the Council which sought a referendum vote to enact an ordinance designating the property as a municipal park. However, the Council had already considered designating the property as a park and ordered instead to put it out to sale. Based on our advice, acting as the town's attorney, the Council chose not to put the question to referendum because it sought to overturn a Council order and there was no authority to do so under the charter. 

This case is a good reminder that municipal charters can strictly limit—or even eliminate—the right to citizens’ petition otherwise available under Maine law. Brunswick’s charter allows only ordinances, and not orders, to be overturned by petition. This makes sense because the Council needs to be able to transact the Town’s more routine business without concern that its every action might be overturned through referendum. Although the petitioners argued that they were seeking to enact a new ordinance, not to overturn an order, the Maine Superior Court justice found that the petition did seek to overturn a Council order and was properly barred. The Court also denied the appeal on the grounds that the Town had already sold the property by the time the case was heard.