Supreme Court Ruling Affects Maine Public Sector Unions

Wednesday, June 27, 2018

The U.S. Supreme Court ruled today that it is a violation of the First Amendment to require public sector employees to pay union dues if they do not wish to even when they benefit from collective bargaining. Maine is one of 20 states which require all public employees who are eligible to join a union to pay dues even if they object. That law will now be voided. Many employees will now choose not to pay those dues but still receive the benefits and protections negotiated between municipalities, schools, and unions. The viability of public sector unions is in serious jeopardy going forward as it is questionable whether unions will receive enough dues from their members to cover costs and provide any actual advantages for employees.

Maine Legislature Overrides Veto of Retail Marijuana Law

Wednesday, May 2, 2018

The Maine Legislature today voted to override Governor LePage’s veto of LD 1719, “An Act to Implement a Regulatory Structure for Adult Use Marijuana.” This is good news for municipalities eager for some certainty on what they’ll be dealing with when retail (“adult use”) marijuana establishments come to town. 

The Act makes significant changes to the existing Marijuana Legalization Act. It details state licensing procedures and criteria, as well as operational standards that must be followed by marijuana cultivation facilities, products manufacturing facilities, testing facilities, and retail stores. Anyone wishing to operate one of these facilities must first obtain a conditional state license and then receive approval from the local municipality before returning to the state for final approval. Municipal approval cannot be granted unless the municipality has adopted a town meeting article or ordinance allowing some or all types of marijuana establishments within the municipality. This essentially creates an opt-in arrangement for municipalities—meaning that no retail marijuana establishments may be located in a town unless that town has affirmatively voted to allow them. 

The Act gives municipalities broad latitude in regulating marijuana establishments. They may forbid or limit the number of any particular type of marijuana establishment. They may instead choose to adopt land use and licensing regulations and implement application fees. Marijuana establishments may not be located within 1,000 feet of a preexisting public or private school, but that distance may be reduced by ordinance to as little as 500 feet. 

As a practical matter, licenses will not be available until licensing regulations are in place. This is anticipated not to occur until at least the end of summer 2018.

New Hampshire Senate Bill 412 Effects Changes Relating to Agritourism

Wednesday, April 25, 2018

With the passage of Senate Bill 412 in the 2018 Session, the New Hampshire Legislature made two significant changes relating to agritourism. 

The first significant change was an amendment to RSA 674:32-b, II, which added the following language: 
No municipality shall adopt an ordinance, bylaw, definition, or policy regarding agritourism activities that conflicts with the definition of agritourism in RSA 21:34-a. 
The State’s definition of agritourism in RSA 21:34-a was not changed. “Agritourism” continues to be defined in RSA 21:34-a as: 
…attracting visitors to a farm to attend events and activities that are accessory uses to the primary farm operation, including, but not limited to, eating a meal, making overnight stays, enjoyment of the farm environment, education about farm operations, or active involvement in the activity of the farm. [Emphasis added.] 
Thus the State’s definition of agritourism, which local regulations cannot conflict with, retains the requirement that agritourism uses be “accessory uses to the primary farm operation.” Agritourism uses must be minor in relation to existing farm operations, and any attempt to eliminate the accessory use requirement at the local level would violate State law. Senate Bill 412 does not change the result in Forster v. Town of Henniker, 167 N.H. 745 (2015), in which the New Hampshire Supreme Court upheld the Henniker ZBA’s and the Superior Court’s findings that the plaintiff’s proposed weddings and other commercial events were not accessory to plaintiff’s existing tree farm operation. 

The second significant change effected by Senate Bill 412 is that the New Hampshire Commissioner of Agriculture has been given the authority to determine whether or not a municipality’s ordinance, bylaw, definition, or policy on agritourism conflicts with RSA 21:34-a. An applicant may petition the Commissioner for a declaratory ruling as to whether the municipality’s regulations conflict with RSA 21:34-a.

Know Your Ordinance: Enforcement Orders Subject to Appeal

Wednesday, March 21, 2018

One thing we always look for when reviewing a land use ordinance is whether it inadvertently allows for appeal of enforcement orders issued by the code enforcement officer (CEO). We prefer not to have such orders be appealable, because a notice of violation is only a preliminary determination and will always be reviewed by a court before any penalties are assessed. Further, notices of violation are often an important first step in encouraging negotiation and resolution of violations. If a property owner can appeal a decision, he or she will usually take that step instead of trying to work things out with the CEO.

The Legislature recently highlighted this issue when it added language to the Board of Appeals statute, 30-A M.R.S. § 2691, which reads as follows:
Absent an express provision in a charter or ordinance that certain decisions of its code enforcement officer or board of appeals are only advisory or may not be appealed, a notice of violation or an enforcement order by a code enforcement officer under a land use ordinance is reviewable on appeal by the board of appeals and in turn by the Superior Court under the Maine Rules of Civil Procedure, Rule 80B.
It is now clear that by default, enforcement orders may be appealed. If that is not your municipality’s intention, ordinances should be amended ASAP to clearly state that there is no jurisdiction to allow such appeals.

One positive thing to note is that at least one court has refused to read the new language so broadly as to allow appeal of a CEO’s failure to find a violation. In Rappos v. Town of York, AP-16-34, abutters submitted a complaint against their neighbor and then appealed the CEO’s decision not to take action on that complaint. The Court held that neither the Zoning Board of Appeals nor the Court had jurisdiction to issue a binding order on the appeal.

The Gift That Doesn’t Keep on Giving? How Municipalities Can Make Funds Held in Trust for a Public Purpose More Manageable

Wednesday, March 14, 2018

Many municipalities are the recipients of generous monetary gifts to be held in trust for various public purposes. Such gifts can range in size from a few hundred dollars to a few hundred thousand dollars or more, and may be accompanied by very specific instructions for how they are to be spent or by no instructions at all. While important to serving their various public purposes, these funds can also pose a problem for municipalities with limited financial management resources, particularly when sums given or restrictions imposed decades ago become obsolete and make it difficult for municipalities to efficiently carry out the wishes of their donors. 

One viable alternative for municipalities is to seek out a private, third-party nonprofit organization that specializes in administering funds of the nature held in trust by the municipality and seek approval from the Consumer Protection Division of the Office of the Attorney General to transfer the funds. Depending on certain factors, the funds held in trust may be subject to the Maine Uniform Trust Code, 18-B M.R.S.A. § 101 et seq., which prescribes certain rules for matters such as the creation, validity, modification, or termination of a trust. In this particular situation, the municipality may need to seek approval from either the Probate or Superior Court to modify or terminate the trust in question on the basis of circumstances not anticipated by the settlor of the trust, with consideration being given to the settlor’s probable intent. Although in some cases, decedents of the original settlor may object to such modification or termination, as a practical matter, the Consumer Protection Division is often the only party in a position to challenge such action. Therefore, approaching the Division prior to petitioning the court to obtain their informal approval is advisable. 

Our firm has previously assisted with seeking court approval of similar transfers of trusts, including the relocation of Cony High School in Augusta, Maine, in 2007, which drew significant community attention, but ultimately resulted in a favorable outcome. 

Municipalities that choose to administer funds independently or are unable to identify a viable private third-party recipient of such funds are subject to certain statutory guidelines regarding the management and disbursement of trust funds held by the municipality for charitable public purposes. Under Maine law, two different laws appear to govern such activities, which appear to create ambiguities and practical difficulties for municipalities; however, after working with the Consumer Protection Division, we have determined that Maine’s Uniform Prudent Management of Institutional Funds Act, 13 M.R.S.A. § 5101 et seq. (“UPMIFA”), is a proper authority under which to manage and invest such funds. 

While Subchapter 3-A of Chapter 223 of Title 30-A of the Maine Revised Statutes Annotated, regarding municipal investments, also applies to public purpose funds held in trust by a municipality, the Division recently stated informally that they would not object to a municipality managing and investing funds held by the municipality for public purposes under UPMIFA because it is both more recent than Subchapter 3-A and specifically applies to charitable funds held by government institutions. UPMIFA additionally offers a standard of prudence by negative inference with regard to the expenditure of funds. UPMIFA provides, in part, that any appropriation for expenditure of an amount greater than 7% of the fair market value of the fund, calculated over certain time periods, creates a rebuttable presumption of imprudence. 

UPMIFA is also the statute applicable to municipalities managing and investing charitable funds for private purposes, meaning that management under UPMIFA could be consistently applied to funds designated for both public and private purposes, an additional benefit to municipalities with limited resources to manage those funds under different statutory schemes.

Superior Court Clarifies Grandfathered Status of Non-conforming Structures

Tuesday, March 6, 2018

Maine’s Superior Court recently issued a decision that provides clarification on the grandfathered status of non-conforming structures and, more specifically, the circumstances under which that status may be lost. 

At issue in Plourde v. Town of Casco was the non-conforming status of a dock. In 2005, the town had issued a building permit for a dock to a family that owned property in a subdivision. The permit identified the family’s lot as the relevant lot associated with the permit. In 2016, the plaintiffs, who also owned property in the subdivision, purchased the dock from the family. The family then sold their lot separately to a new owner. After the new owner filed a complaint with the town regarding the dock, the code enforcement officer (CEO) conducted an inspection. Unable to determine who owned the dock, the CEO issued a notice of violation ordering the removal of the dock and invalidating its permit. Among other violations, the CEO cited the width of the dock and fact that the permit for the dock had been issued to the prior owner of the lot. After receiving notice of the violation, the plaintiffs filed an application seeking to construct a new temporary dock in the same location as the former dock. Ultimately, the town’s Zoning Board of Appeals (ZBA) denied the building permit, finding that the plaintiffs’ application was for a new dock and not a grandfathered replacement dock, and that the dock was located in a beach area in violation of the town’s ordinance. 

On appeal, the plaintiffs argued that it is structures that are grandfathered, not owners, and so the dock and its location were grandfathered regardless of any ownership interest in the lot formerly associated with the dock. The Superior Court disagreed, however, pointing out that the rights conferred by a building permit attach to the land. Here, the 2005 building permit made the dock appurtenant to a specific lot. The court explained that although a change in ownership in the lot would not affect the non-conforming status of any appurtenant structure, that status may not be separated from the lot and sold in a transaction independent from a sale of the lot. Consequently, when the plaintiffs purchased the dock in an independent transaction, “they did not validly obtain any right or privilege to place the dock in its current location and never obtained any non-conforming status associated with the dock’s location.” As a result, the court found that the town’s ZBA appropriately denied the plaintiffs’ application for a building permit where the application was for a new dock and not a replacement for a grandfathered non-conforming dock.

A New Way to Deal with Dilapidated Mobile Homes

Tuesday, February 20, 2018

The Municipal Law and Finance Group recently advised a client regarding the use of a relatively new statute – 30-A M.R.S. § 3106 – which provides municipalities with authority to take possession and dispose of mobile homes that have been abandoned. While the statute uses the term “abandoned,” it seems to also include mobile homes that are in a substantial state of disrepair. Code Enforcement Officers should consult municipal counsel before using the statute for a mobile home that is still inhabited. 

Section 3106 provides that the municipal officers may take corrective action after determining at a hearing that a mobile home has been abandoned. Notice of the hearing must be published or delivered at least seven days prior. 

The standards for making this determination are listed in 14 M.R.S. § 6326 and allow for a determination of abandonment if doors and windows have been boarded up, broken, or left unlocked; trash and debris has accumulated on the mortgaged premises; the premises constitute a threat to public health or safety; or the premises are unfit for occupancy. Only one of these must be proven true in order for the municipal officers to make a lawful finding of abandonment. 

After making such a determination at the hearing, the municipal officers must order that the conditions be addressed. Contents for the order are outlined in the statute. The order must give the property owner 60 days to correct the situation. If that deadline passes without action, the municipal officers are authorized to take possession of the mobile home and dispose of, it as well as any personal property located inside. Costs of doing so, including legal and administrative costs, may be assessed to the owner as a special tax if they remain unpaid after 30 days. 

Experienced CEOs will notice many parallels between this procedure and the more commonly used “dangerous building” statute (17 M.R.S. § 2851). Both allow for the process to be conducted either by the municipal officers or in court, and both allow for costs to be assessed as a personal tax. However, because Section 3106 sets a lower trigger for action, provides clear authority to dispose of personal property, and is more directly addressed to mobile homes, we recommend its use when dealing with dilapidated mobile homes.