Tax Lien Foreclosure – Rights of Mortgage Holders and Unassessed Owners

Friday, March 10, 2017

Experienced tax collectors and treasurers know that mortgage holders and unassessed owners of record have the right to receive copies of certain notices during the tax lien foreclosure process. But what are these entities’ precise rights, and how can towns and cities address the statutory requirements without spending tons of time doing title searches?

A tax collector is not required to send mortgage holders or unassessed owners a copy of the initial 30-day notice. However, 30-A M.R.S.A. § 942 does require that a copy of the lien certificate be sent to such entities at the time it is recorded. Failure to do so gives those entities an additional three months to redeem the property beyond the date they received actual notice that the tax lien certificate was recorded. Mortgage holders must also receive a copy of the 30-45 day notice of impending foreclosure under 30-A M.R.S.A. § 943. Failure to send this notice gives the mortgage holder an extra 30 days beyond the date the notice is actually provided. Although the statute does not state that unassessed owners must receive a copy of this notice, it is good practice to send one.

A municipality cannot know for sure who is entitled to notice unless a title search is performed on the exact date the notice is being sent out. For municipalities with many delinquent taxpayers, it would be impractical to do a title update on each of the properties for which a tax lien certificate will be recorded. After all, most of these taxes are usually paid well before the foreclosure date. However, a town’s efforts to sell tax-acquired property can become subject to legal challenge if it is found after foreclosure that a bank or unassessed owner was not notified. This is particularly true if the bank finds out about the foreclosure after the town sells the property!

It is always safest to check the Registry before sending out any tax lien notices. However, if this is not practical, we recommend that the Treasurer set a reminder to check the Registry around four months prior to the foreclosure date. This will allow time to send out copies of the lien certificates so that any extension will fall within the redemption period, rather than extend it. It will also help secure the foreclosure process against legal challenge.

Social Media and Public Records Laws

Social media is ubiquitous these days. Facebook alone, for example, has nearly 1.5 billion monthly active users. Given social media’s widespread use, it is not surprising that some municipalities have sought to harness its power as an effective tool for communicating with the public. Municipalities that use social media, however, should keep in mind that communications on such sites are not immune from open access laws. On the contrary, communications on municipal social media may qualify as public records that are subject to freedom of information requests.

Where social media is concerned, the key issue that municipalities must remember is that it is the content of the communication that matters, not its format. Consequently, the fact that social media is often perceived as ephemeral does not categorically exempt social media from public records laws. The definition of “public records” in Maine’s FOAA law, for example, makes this clear. That statute broadly defines a “public record” as, among other things, “any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained” and that is in the possession or custody of a public entity. In short, then, municipalities should apply the same record retention principles to communications on social media that they apply to communications in other formats – and look to the content of the communication, rather than its format, to determine their retention obligations. So, for example, a post from a member of the public containing a substantive complaint would likely need to be retained longer than a post containing a simple request for information or conveying other information of short-term value. To help manage their retention obligations, municipalities can take steps to limit the scope of what may be posted on social media, such as by clarifying that social media is not to be used for filing complaints or for other official communications with the municipality. By doing so, municipalities can ensure that their public record obligations do not become a reason to “unlike” social media.     

Maine's Joint Select Committee on Marijuana Legalization Implementation

Wednesday, February 22, 2017

Possession of up to 2.5 ounces of marijuana for recreational purposes has now been legal in the State of Maine for three weeks. The world as we know it seems unchanged. This, of course, follows the passage of last year’s Question #1 ballot initiative that sought to legalize the use of marijuana and was ultimately successful at the ballot box. Differences of opinion between various legislative factions and Governor Paul LePage over which bureaucratic agency should oversee eventual permitting for the commercial sale of marijuana also led to the late January passage of an emergency bill to make technical changes to the ballot initiative.

The passage of Question #1 led Maine’s 186-member legislature to respectively introduce roughly 70 individual pieces of legislation that would seek to impact the State’s relationship with marijuana in any number of ways. To best deal with this slew of bills that would otherwise be referred to several legislative committees, but chief among them the Joint Standing Committee on Veterans and Legal Affairs, legislative leadership last month agreed to the creation of a Joint Select Committee on Marijuana Legalization Implementation. This temporary, session-only committee will take up these bills in public hearing and continue to work them over the course of the 1st Regular Session of the 128th Legislature, which is likely to adjourn in June.

The Joint Select Committee has scheduled a public forum on the implementation of marijuana legalization that will be held Tuesday, February 28 at 1:00 P.M. in Room 216 of the Cross Office Building.

LePage Demands Stall Marijuana Law

Friday, January 27, 2017

Yesterday the already tumultuous story of LD 88, "An Act To Delay the Implementation of Certain Portions of the Marijuana Legalization Act" took an increasingly intriguing turn when the bill was enacted by the Legislature but failed to meet Governor LePage's policy demands.

LD 88 was introduced by Rep. Louis Luchini (D-Ellsworth) earlier this month in response to last November's passage of referendum Question 1, which legalized recreational marijuana use. The ballot initiative failed to include language that could ensure minors would not be able to legally purchase or possess marijuana and this necessitated an amendment broadly accepted by the marijuana industry and community.

A more contentious aspect of the bill was to delay implementation of rule-making for three months, which was widely regarded as a heavy-handed delay of the implementation of the entire referendum. This common misconception frustrated stakeholders and many lawmakers during the bill's public hearing and work sessions as marijuana activists lambasted what they considered nefarious intent.

During the Legislature's Joint Standing Committee on Veterans and Legal Affairs' time working the bill Governor LePage made relatively little comment and did not get directly involved in goings-on around the document. That all changed during the middle part of this week, however, when the Blaine House began making noise that the Governor would veto an otherwise smooth ascendency of LD 88 if it did not hand retail licensing authority to the Bureau of Alcoholic Beverages & Lottery Operations rather than house it under the Department of Agriculture, Conservation & Forestry.

The left flank of the House Democratic Caucus was always uncomfortable with any mention of "delay" in relation to Question 1 and so the ground was fertile for knee-jerk disagreement when House Republicans sponsored a floor amendment proposing to make LePage's demanded changes, which also included 1.6 million dollars to better fund rule-making. The amendment was rejected in the House yesterday morning and both bodies of the Legislature moved swiftly to enact the bill in its original form.

There continued to be much uncertainty, though, as Governor LePage's threat to veto LD 88 loomed large over the Legislature. He is capable of holding the bill for ten business days without signing it or allowing it to become law and has been known to wait till the last hour to issue vetoes.

At 4 pm yesterday afternoon legislative leadership met with the Governor to try to avert an impending "crisis." They feared failing to have the bill signed by the Governor before the January 30 implementation of Question 1. The Governor indicated he might not issue a veto, and the media has reported he has refused to sign or veto it but there is broad consensus within the State House that any gubernatorial action during the next ten business days is possible.

Land Use Boards/Subsequent Application Doctrine

Tuesday, January 24, 2017

Land use boards, especially planning and zoning boards, are often faced with applications to develop property that are similar to prior applications to develop the same property. Since the New Hampshire Supreme Court’s decision in Fisher v. City of Dover, 120 N.H. 187 (1980), the law in New Hampshire has been that a zoning board of adjustment (“ZBA”) should not consider a subsequent application unless a material change of circumstances affecting the merits of the application has occurred or the application is for a use that materially differs in nature and degree from the prior application. The Supreme Court refers to this doctrine as the “subsequent application doctrine” (sometimes referred to as the “finality doctrine”).

Until April 2016, the Supreme Court had not applied the subsequent application doctrine to applications before a planning board. In CBDA Development, LLC v. Town of Thornton, 168 N.H. 715 (2016), the Court held that the Town’s Planning Board had properly decided that it could not consider the plaintiff’s second application because it did not materially differ in nature and degree from its initial application, which had been denied. The Court rejected plaintiff’s argument that the subsequent application doctrine applied only to applications before a ZBA.

The Court in CBDA Development, LLC v. Town of Thornton established or reiterated a number of principles that should be of interest to members of all land use boards, including:
  1. That the subsequent application doctrine is alive and well and applies to decisions of all land use boards. In addition to applications before ZBA’s and planning boards, the doctrine would also apply, for example, to applications before a building code board of appeals.
  2. The burden of proof is on the applicant to show that the subsequent application involves a material change of circumstances affecting the merits of the application or is for a use that materially differs in nature and degree from the original application.
  3. The land use board itself should determine, as a threshold question, whether the subsequent application doctrine applies to preclude consideration of the second application. If it applies, then the board should not proceed to a consideration of the merits of the application. If it does not apply, then the board may proceed to consider the application’s merits. It is within the sound discretion of the land use board to determine whether the second application has been changed sufficiently, or whether the circumstances have changed sufficiently, to warrant hearing the merits of the second application.
Land use boards should be cautious about applying the subsequent application doctrine too zealously. For example, where a subsequent application is changed to address specific concerns that the land use board raised when considering the merits of the first application, the board should hear the merits of the second application. In Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553 (2011), the Court held that there had been substantial changes in the law applicable to variances so that the ZBA should have heard the subsequent application.

Note that while this entry addresses New Hampshire law, the Maine Supreme Judicial Court issued a similar ruling in the 1994 case of Silsby v. Allen’s Blueberry Freezer, Inc., 501 A.2d 1290, 1295 (Me. 1985). The guidelines discussed above are generally applicable in both states.

VLA Reports out Marijuana Amendment

Friday, January 20, 2017

The Veterans and Legal Affairs Committee (“VLA”) held a public hearing on Tuesday of this week on LD 88, which lasted for just under four hours with several dozen members of the public testifying. There were more people there to testify against the bill, mainly organized by Paul McCarrier and Legalize Maine.

VLA met yesterday to work LD 88 a second time. They voted unanimously to support amendments and completed language review. The bill will be on the House calendar on Tuesday, so it can get it to the Governor as soon as possible.

The Committee addressed several issues:
  1. Definitions: the amendment replaces the initiative definitions with definitions that mirror the criminal definitions. They try to refer to both marijuana and marijuana concentrate together mostly throughout the amendment when possible.
  2. Minor issue: the Committee adopted their own provision specifically tied to prohibiting possession and applying tiered penalties. They opted to pass the comprehensive minor provisions on to the joint select committee to address.
  3. Non-public definition: the Committee opted to limit to private residence "including curtilage" or "private property, not generally accessible to the public." There was a lot of discussion around use in motor vehicles (while in operation, buses, RVs, etc.), but they settled on focusing the language on consumption in a motor vehicle while the vehicle is in operation. They prohibit use on property used for daycares and in designated smoking areas under the Workplace Smoking Act. They apply fines for violations.
  4. Rulemaking: adoption "shall" occur 9 months after the effective date of the MLA. The Department of Agriculture will be allowed to delegate rulemaking to the Department of Administrative and Financial Services and the Bureau of Alcoholic Beverages and Lottery.
  5. Amounts: they used the MA language 2.5 oz of marijuana "except that no more than 5 grams may be in the form of marijuana concentrate." They opted to defer the weight issue - distinguishing this weight from the weight of the product (brownies, butter, etc.) - to the joint select committee. 

Municipal Land Use Appeals – Ripe for Confusion?

For the past decade, Maine's Supreme Judicial Court has been struggling to find a way to reduce – and expedite – the number of land use appeals going through the courts. It took the opportunity to make a sweeping new rule in the case of Bryant v. Town of Camden, decided last year. In Bryant, an abutter appealed the decision of the Town of Camden's Zoning Board of Appeals to issue a special exception permit to a local inn that wished to expand. The Town's Zoning Ordinance gave jurisdiction to the Board of Appeals to decide such applications by reviewing certain criteria aimed at evaluating whether the development plan would cause undue burdens on the neighborhood. Since the ZBA issued the decision, it was appealed directly to Superior Court. The Superior Court upheld the ZBA's decision and the abutter appealed to the Law Court.

To the surprise of the parties, the Law Court ended up dismissing the appeal based upon issues that had not been raised by either party. The decision begins:
In an effort to reduce confusion, costs, and delay in municipal appeals, we today announce more clearly the need for finality in municipal decisions before a municipal entity’s action may be appealed to the courts. Specifically, we consider when a municipal agency’s decision constitutes a final action subject to immediate judicial review and when, instead, additional municipal decision making is necessary before an appeal is ripe for consideration by the courts.
The Court went on to find that because the inn would still need site plan approval from the Planning Board and Code Enforcement Officer before it could go through with the planned expansion, the appeal was not ripe for consideration by any court. The inn's owner would essentially have to get all of its permits and approvals before the abutter could appeal the issues from the first decision.

Municipal and land use attorneys across the state have been trying to determine the best way to respond to the Bryant decision. All are concerned about the amount of time and expense that might be spent on proceeding through a review process when the first step has already been challenged. I represented the Town of Camden in Bryant, and have been participating in a working group aimed at finding a legislative or procedural compromise to the concerns raised by the Court. The group has presented a proposed change to Rule 80B (which governs appeals of municipal decisions) to allow the Superior Court to decide whether it is appropriate to proceed with review despite any requirement for additional permits. The group is also working on proposed legislation to at least provide that a decision is final for appeal purposes once it has been before any board with jurisdiction over the development (as opposed to final building and occupancy permits issued by the Code Enforcement Officer or other officials).

Until there is some clarification regarding the reach of the Bryant decision, we are helping our clients implement ways to streamline or consolidate their review process on multi-stage approvals. There are a few simple strategies to do so that will reduce the burden on applicants, abutters and municipal officials alike. Please contact us if you would like more information.

*Please note that this post addresses Maine law only. To the best of our knowledge, no courts in New Hampshire or Massachusetts have applied the ripeness rule in this way.