Let’s Talk Municipal Finance – Municipal Lease Purchase Agreements

Wednesday, July 19, 2017

In the last installment of Let's Talk Municipal Finance, I discussed municipalities and governmental entities that issue bonds, a form of municipal debt. An alternative to incurring municipal debt and less onerous option for a municipality that is, for example, looking to purchase a new piece of equipment, is a municipal lease purchase agreement. 

Like ordinary lease purchase agreements, municipal lease purchase agreements require payments for a set number of years to lease a piece of equipment. While some agreements are strictly lease agreements with no option to purchase, more commonly the agreements provide an option to purchase the equipment outright for a nominal price at the end of the term. While a municipality may enter into a lease purchase agreement without a vote of the residents, the allocation to pay the annual lease payments is included as a line item on the annual budget approved by the residents. In addition to the annual appropriation, the agreement must also be duly authorized by the municipality, which commonly means certain resolutions or ordinances must be adopted by the municipality’s governing body authorizing entrance into the agreement by certain officers of the municipality. 

Since payment of the lease is subject to annual appropriation in the municipal budget, municipal lease purchase agreements must contain a provision allowing for termination in the event that the residents fail to approve the appropriation for the following year’s annual principal and interest payments.  This allows the municipality to terminate the lease without penalty. Lending institutions are willing to enter into municipal lease purchase agreements because interest on the annual lease payments is tax exempt as a result of factors such as the municipality’s status as a governmental unit and the use of the equipment being purchased for a municipal or public purpose. 

Municipalities must also consider, however, that the administrative costs of issuing a municipal lease purchase agreement are often greater than those of issuing a bond, primarily because the process is less standardized. The municipality must negotiate individually with a lending institution. Further, the municipality’s legal counsel must review and draft documents and governing body authorizations that are acceptable to the municipality’s chosen lending institution and necessary to issue the opinion of legal counsel, which opines on issues such as due authorization and tax matters. For these reasons, if you are considering entering into a municipal lease purchase agreement, it is best to retain legal counsel at the very beginning of the process to ensure each of the documents and authorizations conforms to the necessary requirements.

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

Maine Superior Court Weighs in on Code Enforcement Appeal

Tuesday, July 18, 2017

Earlier this year, Maine’s Superior Court issued a decision in Blasco v. Town of Southport that provides a useful reminder for municipalities about appeals of code enforcement actions.

The case involved an 80B appeal of a notice of violation that had been issued by the Town of Southport’s code enforcement officer. The plaintiff filed the appeal pursuant to a provision in Southport’s land use ordinance that provided that all enforcement actions taken by the CEO “may be appealed by an aggrieved party only to the Superior Court pursuant to Rule 80B of the Maine Rules of Civil Procedure.” There was no dispute among the parties that the notice of violation at issue was an enforcement action within the ambit of the ordinance.

The question for the Superior Court was whether Southport’s ordinance, which allowed CEO enforcement actions to be appealed directly to Superior Court, was consistent with Maine law. The court answered that question with an unequivocal “no.” The court pointed out that, in 2013, the Maine Legislature enacted a statutory amendment that authorized enforcement orders such as a notice of violation to be appealed, unless there is clear language in an ordinance stating that such decisions are “only advisory.” However, that statute, 30-A M.R.S.A. § 2691(4), also requires that an appeal must be taken to the Board of Appeals prior to any appeal to the Superior Court. In this case, Southport’s ordinance did not state that the CEO’s decisions were only advisory, and so, it did not necessarily preclude an appeal of the notice of violation at issue. But, because the ordinance attempted to allow for appeals of CEO decisions to be taken directly to Superior Court without first being presented to the Board of Appeals, the Superior Court found Southport’s ordinance was inconsistent with Section 2691(4) and remanded the appeal to Southport’s Board of Appeals for its consideration.

For municipalities in Maine, the Blasco decision serves as a reminder to review land use ordinance provisions concerning the appeal of code enforcement actions. Municipalities should bear in mind that, absent any language stating that certain code enforcement decisions are only advisory and not appealable, a notice of violation or similar enforcement order is normally appealable. Any appeal, however, must first be presented to the Board of Appeals before it can be appealed to the Superior Court.

Update on Marijuana Progress at the Maine Legislature

Thursday, June 15, 2017

As of early June 2017, Maine’s implementation of the legalization of marijuana for adult use continues to chug along. The Maine Legislature’s Joint-Select Marijuana Legalization Implementation Committee has been meeting several times per week now for months, poring over the initiated Marijuana Legalization Act and each potential facet of the forthcoming structure it has called for.

After the MLA’s passage last November, the incoming 128th Maine Legislature submitted more than 70 marijuana-related bills pertinent to all areas of legalization and the state’s existing medical marijuana program. More than 30 of these bills have been carried over for the MLI Committee’s work later this summer, fall, and next session. However, the Committee also has the power to report out its own legislation, which it has already done, passing LD 243 (assigning licensing authority to DAFS) and a recently passed bill to mandate laboratory testing of marijuana and marijuana products and set up a licensure program for these laboratories. Both of these bills have yet to be signed by the governor and enacted into law.

In the meantime, the Committee has been engaged in in-depth discussion around everything from what cultivation, retail, enforcement, and implementation timing will look like. Amid these proceedings, the Legislature will be eager to make use of any potential revenue collected from the taxation of marijuana. Following adjournment of the First Regular Session, the Committee’s plan is to meet in July and August and report out an omnibus bill, establishing an adult use program, to a Special Session of the Legislature in the fall.

While the Legislature has been working on implementation of the Adult Use Program, the Department of Health and Human Services has been undergoing a rewrite of rules for the Maine Medical Use of Marijuana Program (MMUMP). Through this rewrite, DHHS is seeking to provide patients, caregivers, dispensaries, municipalities, and Maine citizens more clarity and guidance in the MMUMP. Participants in the MMUMP and municipalities, especially, have been seeking this guidance for quite some time, as the rules have not been amended since 2013, despite numerous statutory changes.

On June 14, DHHS held a public hearing at the Augusta Civic Center to take public comment on these rules. Fewer than 50 folks, mostly caregivers, testified at the public hearing. Most of their comments were in support of the program and in opposition to DHHS’s efforts to bring greater clarity and effective enforcement to the program. The deadline to provide written comments to DHHS is June 26.


Here is a link to further information on the rules and the rulemaking process:

Accessory Uses and Their Pitfalls

Wednesday, May 10, 2017

Municipalities put a lot of thought into comprehensive plans and zoning ordinances to make sure that no uses are allowed which will cause negative impacts on a given neighborhood. However, we often see ordinances that inexplicably allow any type of use in a district as long as it is an accessory use. “Accessory uses” are usually defined as being incidental and subordinate to the principal use of the property.

A municipality will often have a table of uses in its ordinances that allows only specific types of use in a particular zone, but allows accessory uses in all zones. Let’s think for a second about what this might mean. Consider a residential zone in which a nursing home is an allowed use, but a restaurant is not an allowed use. The nursing home has a cafeteria that is open to the general public. If “accessory uses” are allowed in all zones, the nursing home now has a back-door (yet perfectly legal) way to run a restaurant without violating the ordinance. Neighbors who thought they were living in a restaurant-free zone might complain, as might would-be restaurateurs who do not have the same opportunity.

Home occupations are also frequently given broader latitude than the same type of use conducted outside the home, even though the impacts on the neighborhood might be the same. Is that auto repair shop in someone’s home garage any less noisy than a principal use of the same type that might not be allowed in the same zone?  This matters because zoning restrictions are a limitation on property rights, and there has to be a rational basis supporting all such restrictions.

What can be done? Planning boards and staff should consider carefully their definitions and ordinance provisions pertaining to accessory uses. One simple solution is to include a provision that accessory uses are only permitted to the extent they would be permitted as a principal use in the given zone. Consider also the types of uses such as hospitals, civic centers, schools, churches and other campus-type facilities that may encompass several accessory uses. It often makes sense to include the more common elements of these facilities in the definition of the primary use, rather than trying to figure out which uses are subordinate and accessory. Generally speaking, planning officials should put the same degree of thought into the impacts of these accessory activities as they do into the impacts of their principal use counterparts.

Can the Deliberative Session of Town Meeting in a Senate Bill 2 Town Change the Intent or Purpose of a Petitioned Warrant Article?

Wednesday, April 19, 2017

Cady v. Town of Deerfield


In Cady v. Town of Deerfield, decided January 18, 2017, the New Hampshire Supreme Court dealt with the question of the extent to which the deliberative session of the Town Meeting in a Senate Bill 2 municipality may amend a warrant article.  A Senate Bill 2 town is one which has adopted the provisions of RSA 40:13 and which accordingly conducts its town meetings in two sessions:  the first session is deliberative in nature and consists of “explanation, discussion, and debate” on each proposed warrant article; and the second session involves voting by official ballot on each of the warrant articles, as amended at the first session.

In Cady, the Town of Deerfield’s deliberative session considered two petitioned warrant articles, the first of which was to make the Welfare Director an elected position at a salary no greater than $5,000 per year; and the second of which was to make the Police Chief an elected position to be paid $65,000 per year, subject to cost of living increases.  The deliberative session of the Town Meeting changed the petitioned warrant articles to “express an advisory view that the position of Welfare Director [Police Chief] be an appointed position as it is at the present time.”

RSA 40:13, IV(c) provides that warrant articles may be amended at the deliberative session, provided that “no warrant article shall be amended to eliminate the subject matter of the article.”  Cady argued that changing the petitioned articles, from making the Welfare Director and the Police Chief elected positions to having them remain as appointed positions, improperly changed or eliminated the intent or subject matter of the petitioned articles.  The Court rejected this argument, finding that the plain meaning of RSA 40:13, IV(c) prohibited only amendments that “eliminate” the subject matter of a warrant article, not amendments that change the “intent”  of a warrant article.  In addition to the plain meaning of the statute, the Court was also persuaded by a 2016 bill that was rejected by the Legislature.  That bill would have modified the language of RSA 40:13, IV(c) to provide that: “No petitioned warrant article shall be amended to [eliminate] change the subject matter or the intent of the article.”  (Words that were proposed to be added to RSA 40:13, IV(c) are in bold and words to be removed appear in brackets and are struck through.)

Thus, unless and until the Legislature amends RSA 40:13, IV(c), the deliberative session of a Senate Bill 2 “or official ballot” municipality may change warrant articles so long as the basic subject matter is not eliminated, even if the intent or purpose of the article is changed. This applies both to the deliberative session of a Senate Bill 2 town and to the traditional town meeting in a municipality that has not adopted the “official ballot” form of town meeting. 

THE ABOVE IS APPLICABLE ONLY TO NEW HAMPSHIRE MUNICIPALITIES.  MAINE HAS A SUBSTANTIALLY DIFFERENT BIFURCATED WARRANT ARTICLE PROCEDURE.

Social Media Policies and the First Amendment

Tuesday, April 18, 2017

Over the last several years, the National Labor Relations Act has driven much of the discussion around the legalities of social networking policies. Since 2011, for example, the NLRB’s Office of General Counsel has issued three reports concerning employer social media policies, all of which emphasize the importance of drafting social media policies narrowly so as not to infringe on activities protected under the NLRA.  For municipalities and other public employers, however, an equally important consideration when preparing and enforcing social media policies is the First Amendment.

Social Media Policy in the City of Petersburg


As a case in point, the Fourth Circuit Court of Appeals recently held in Liverman v. City of Petersburg that a city’s social media policy was overbroad under the First Amendment where it prohibited in “sweeping terms” the dissemination of any information that had a tendency to discredit or reflect unfavorably on the city or its employees.  The policy applied to the city’s police department and prohibited officers from making “negative comments” on the operations of the department, which the policy explained did not constitute protected speech. Another provision prohibited officers from making comments online that “disrupted the workforce” and further discouraged officers from posting any information about their off-duty activities. The policy explained that violations of the policy would be judged on a case-by-case basis. 

At issue in the case was a Facebook exchange between two officers while off-duty, which criticized the way rookie cops were being promoted to instructors based on special interests rather than experience. After the learning of the exchange, the department disciplined the officers for violating the social media policy. The discipline ultimately made the officers ineligible for promotion to open sergeant positions.  The officers subsequently sued and claimed that the city’s social media policy infringed on their free speech rights. 

The Fourth Circuit found that although social media presents novel issues, it is the scope and restriction on speech that matters under the First Amendment – not the medium of the speech. Here, the court found that there was no doubt that the social media policy regulated the officers’ rights to speak on matters of public concern, as it was effectively a “blanket prohibition on all speech critical of the government employer.” Because the policy imposed a significant burden on expressive activity, the court looked to whether it was justified by real, not merely conjectural harms to the department’s operations.  The court acknowledged that divisive social media use had the potential to undermine the department’s interest in maintaining camaraderie among officers and trust within the community, but it nonetheless found that these concerns were too speculative to justify the policy’s sweeping restrictions and chilling effect on protected speech.   Having found the policy itself unconstitutionally overbroad, the court turned to the officers’ discipline and found that it, too, was unconstitutional.   The court found the officers’ posts dealt with issues of public import and were not merely personal grievances.  According to the court, whether the officers were correct in their views was not the issue, because the issue they addressed in their posts – i.e. the risks posed by inexperienced supervisors – was a matter of public concern.

For municipalities, this decision highlights the need to consider the restrictions contained in social media policies and the potential chilling effect of those restrictions on protected speech (and, similarly, the exercise of rights under the NLRA).  Wherever possible, municipalities should avoid restrictions that are ambiguous, vague, or susceptible to interpretation, as they are more likely to be viewed as unlawfully overbroad.  Municipalities can further reduce that risk by providing examples of the specific conduct prohibited under the policy.  Although doing so provides no guarantee, it is more likely to result in a narrowly tailored policy that avoids running afoul of the law.

Maine Municipal Law Update: Biennial Budget, Marijuana Legalization & Opportunity Agenda

Friday, April 14, 2017

Maine's Biennial Budget


Legislative work continues to steadily flow in Augusta, Maine as more bills are taken up by policy committees and many of them are meeting passage or being killed. In addition, the state’s biennial budget is slowly inching forward as the Appropriations & Financial Committee has accepted non-controversial initiatives, and will soon tackle the more contentious ones.

The Marijuana Legalization Implementation Committee


In the meantime, the implementation of adult-use marijuana legalization continues to pose interesting and as-yet undecided policy questions to the Marijuana Legalization Implementation Committee (MLI) and the State House’s respective party caucuses.

The MLI has thus far held a series of public hearings allowing any and all members of the public to voice a range of opinions around marijuana policy, including the state’s preexisting medical program. However, only LD 243 has been taken up in MLI. This bill, after being extensively worked by the committee received a 16-1 “ought to pass as amended” vote.  It is now poised to establish a “hub and spokes” model of licensing that would be centered on the Department of Administrative and Financial Services (DAFS) with major “spokes” extending to the Bureau of Alcoholic Beverages and Lottery Operations (BABLO) and the Department of Agriculture, Conservation, and Forestry (DACF). BABLO, an organization that exists within DAFS, would regulate packaging and retail, while DACF would regulate cultivation. 

The Committee will continue to meet regularly through the end of session and continue through the interim period between sessions.  The Committee is likely to hold several more large public hearings throughout the spring that will cluster individual bills based on their proposals and the different aspects of legalization implementation.

Opportunity Agenda


In other news, Legislative Democrats unveiled the “Opportunity Agenda” last week, a counter-proposal to the most recent LePage biennial budget. The program is touted by Democrats as providing the largest property tax cut in history, funded partially through new revenues created by adult-use marijuana legalization.

Lis Pendens Only Available when Title to Real Estate is Involved

Thursday, April 6, 2017

In the pending case of Brunswick Citizens for Collaborative Government, et al. v. Town of Brunswick, (Cumberland County Superior Court) the Petitioners claim that the Town of Brunswick failed to follow its Charter procedure to hold a public hearing and potential referendum election after receiving signed petitions.  

The case involves a piece of property that the Town Council had voted to sell. The point of the petitions was to hold a referendum election so the Town would retain the property. The case was brought as a Rule 80B Appeal and a Declaratory Judgment action. It explicitly does not involve title to real estate. It was not so noted on the Complaint nor was that checked in the civil cover sheet.  Nonetheless, the plaintiffs obtained a notice of lis pendens from the Clerk and recorded it in the Registry of Deeds, describing the property at issue in the lawsuit. The Town of Brunswick filed a Motion to Cancel the Lis Pendens arguing that a lis pendens under the law, 14 M.R.S. § 4455, only applied where title to real estate was specifically involved. The Court agreed and ruled that it was appropriate to cancel the notice of lis pendens. The Court noted that a lis pendens is a specific statutory procedure used to put title examiners on notice of issues involving the title to real estate.  It is not a general tool for advising the world of the pendency of lawsuit, in an improper effort to discourage the sale of real estate.

Preti Flaherty represents the Town of Brunswick in this case.

Let's Talk Municipal Finance - Issuing Bonds

Tuesday, April 4, 2017

In my previous installment, I discussed several financing alternatives available to municipalities and certain other governmental entities to supplement revenues from their tax base or user fees. One common option is the issuance of bonds, either independently, or through a pooled issuance. 

The Issuance of Bonds


The first step to issuing a bond is the approval process at the local level.  The process varies depending on the municipality or governmental entity’s charter, enabling statutes, and other protocols that may be applicable to the issuer. It may require a formal recommendation from the governing officers followed by a vote of approval at a meeting of the residents of a municipality, or an approval only from the governing  body of a governmental entity.  Municipalities should note that their ability to incur debt is not unlimited.  For example, municipal debt it is capped by statute at an aggregate of 7.5% of the municipality’s last full state valuation, subject to certain exceptions for, by way of example, debt incurred for school purposes, storm or sanitary sewer purposes or for energy facility purposes.  Certain bonds, such as those for school purposes, may be funded primarily through payments from the state rather than from tax revenues at the local level.

Independent vs. Pooled Issuance


A municipality or governmental entity may choose to issue bonds completely on its own or through a pooled issuance, such as those with the Maine Municipal Bond Bank or New Hampshire Municipal Bond Bank. Bonds issued independently are done so via either a “directed sale” using a financial adviser or a “negotiated sale” using an underwriter.  The use of a pooled issuance, however, can help decrease costs and achieve a higher credit rating, which translates to lower interest rates.  According to the Maine Municipal Bond Bank, while the average cost of an individual municipality’s issuing a bond on its own would be approximately $15,000-18,000, a pooled issuance costs a municipality only about $2500 to $5000 (the cost of local bond counsel).  

Following a pooled issuance, however, the municipality is subject to on-going administrative fees while the bond is outstanding, which are not incurred by the municipality if it chooses to issue the bonds independently. If the municipality or governmental entity chooses to issue bonds using a pooled issuance, it must go through an application and approval process with the entity facilitating the pooled issuance and, if approved, follow the issuance schedule of the facilitating body, which often limits the number of issuances each year.

Regardless of whether a municipality or governmental entity decides to issue bonds independently or as part of a pooled issuance, it is subject to certain obligations following the issuance of the bonds until their maturity date. These obligations include, in the case of tax-exempt bonds, adopting a post-issuance compliance policy intended to maintain the tax-exempt nature of the interest on the bonds.  The municipality or governmental entity may also be required to enter into a continuing disclosure agreement or continuing disclosure certificate, which require the issuer to comply with certain Securities and Exchange Commission reporting requirements.


In my next installment in this series, I will discuss anticipation notes, which are commonly issued directly through a bank.  Anticipation notes are a short-term financing alternative used in anticipation of upcoming bond proceeds or tax revenues.

Superior Court Rejects Disappointed Bidder’s Claim

Thursday, March 30, 2017

Whether required by state law or by local ordinance or practice, municipalities often use the competitive bidding process to purchase property, equipment and most types of services. 

In the recent case of Design Dwellings, Inc., d/b/a DDI Construction v. Town of Windham, (Sup. Ct. Cumberland County, March 13, 2017) the plaintiff challenged an award of a road construction contract by the Town of Windham to a contractor who was not the low bidder.  In denying DDI’s request for preliminary injunction, the Court reiterated that Carroll F. Look Construction Company v. Town of Beals, 2002 Me. 128, ¶9, 802 A.2d. 994, holds that when a municipality sends out a request for bids it is making a request for an offer, not an offer which may be accepted to form a contract. By soliciting responses to the bid, the municipality then has the right to make a choice of whether or not to enter into a contract by accepting one of those bids as an offer.  This is particularly so when a municipality makes it clear that it is free to accept or reject any and all bids.

After the preliminary injunction was denied, the Town of Windham filed a Motion for Judgment on the Pleadings on an amended complaint.  The plaintiff argued that even if the request for bids was just a request for offers, a disappointed bidder may still recover its bid preparation costs and possibly lost profits if they rely on statements made in the bidding documents. Justice Lance Walker ruled that for the same reasons that a request for bids is not an offer, it is not reasonable to rely on any statements made in those requests for bids, and granted the Motion for Judgment on the Pleadings.

The point of all this is that municipalities simply need to be careful about how they use language in requests for bids, to ensure that the process being followed is simply a request for offers.  After the offer is received, the municipality can then make a decision as to whether or not to enter into a contract, and with which bidder.


Preti Flaherty represented the Town of Windham in this case.

What can your Animal Control Officer do for you?

Tuesday, March 28, 2017

I remember the days (and I don’t mean they were necessarily the good old days) when Animal Control Officers were called “dog catchers”.  They had a truck, picked up stray dogs, and did not try to help the dogs or reunite them with their families.  They instead took the animals to the “pound”, the owners may or may not have been informed, and if the dog was not timely picked up by the family, the dog was euthanized.   


An Evolving Role


Animal Control Officers’ roles have evolved quite a bit since that time and, in my opinion, for the better.  A “good” Animal Control Officer (ACO) will do much more for a municipality than just keep stray animals off the streets.  An ACO can be a community relations officer for the municipality, maybe even an educator, helping the community he or she serves understand their obligations as pet owners – vaccination requirements, pet and kennel licensing requirements, leash laws and the like.  ACOs can help identify community cat colonies, hoarding situations, and people in need of assistance for the spaying and neutering of their pets. 

Of course, ACOs are also enforcement officers, and their positions are often within the applicable police department. ACOs are not armed with guns, but they do have the ability to request subpoenas and warrants working the District Attorney’s office in their jurisdiction.   ACOs can accompany police officers on calls when animals are involved because ACOs are trained to deal with animals in stressful situations.  

Training in Maine and Beyond


In Maine, ACOs must go through a four-day training program (about 4 to 5 hours of training per day) and then are required to satisfy on-going continuing legal education requirements. With the support of their municipality, some ACOs will further their education by taking additional classes to enhance their value to the community. Although this observation is mostly anecdotal, it seems that there is a shortage of trained ACOs to fulfill the needs of Maine’s municipalities.  Positions are often part-time, with some ACOs being spread thin because of having to serve multiple municipalities.


In The Neighborhood


Given the current popularity of pets, my bet is that members in a community welcome a well-informed, friendly ACO, ready to assist with helping them understand their obligations as pet-guardians, but also looking to the ACO to be their eyes and ears for cases of neglect, cruelty, and when other enforcement actions are required.


Next up – a discussion of the help available to municipalities to address community cat colonies.

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.

Legal Marijuana – High on the Legislative Agenda

Tuesday, January 17, 2017

In the wake of Question 1's passage on last November's referendum ballot in Maine, marijuana legalization must now be implemented via programs overseen by the Legislature and Executive Branch. This has led to a spate of proposed legislation —65 individual bills in total—that now seek to modify forthcoming programs, rein in or loosen legalization, make slight tweaks to the referendum language, or affect any number of other contours within the marijuana debate.

While the conversation in popular culture often remains a base assessment of marijuana's "effects" and if it should or should not be considered a drug, the policy story is a much different one. The vast majority of debate that has and will continue to rage at the Maine State House will center on which proponents of marijuana will see it regulated as they would most like.

This regulatory debate coupled with the sheer number of marijuana related bills has led legislative leadership to tentatively agree on a "joint-select committee" on marijuana. As opposed to the Legislature's regular "joint-standing committees" the joint select will exist only so long as it is intended to by its enactors and will specifically deal with marijuana legislation. They will have the full powers of a legislative committee in that area and will be able to hear, work, and report out bills. Legislative leadership is expected to announce the committee's membership next week. The irony that it is a joint committee is appreciated by one and all.

One of the 65 proposed bills has garnered the lion's share of interest, ire, and media attention thus far. LD 88 would delay the implementation of the Question 1 for one year as language changes were made to the impending statute. LD 88 had its first hearing today at 1 p.m. before the Veterans & Legal Affairs Committee.

Service Animals and the Maine Human Rights Act

Monday, January 9, 2017

Do you have to let that animal in here? The law might just say that you do.

The Maine Human Rights Act (“HRA”) is broad in its reach and is intended to cover municipalities and their properties. In a law that became effective this year, the Legislature created a new definition of “service animal”, thereby distinguishing between the rights of a person with a service animal and those with an assistance animal.

A service animal “is a dog that is individually trained to do work or perform a task” for a person with a disability, which tasks are directly related to the disability. By way of example, a dog that provides navigation assistance to the visually impaired or assists by pulling a wheelchair qualifies as a service animal. Services to a human such as providing emotional support, well-being, comfort or companionship do not qualify as “work or tasks” for purposes of a service animal. The exclusion of these types of support services, however, can apply to animals that may qualify as assistance animals under Maine law. Assistance animals are those animals that either are (a) determined to be necessary to mitigate the effects of a physical or mental disability by certain health professionals or a licensed social worker or (b) individually trained to perform work or tasks for the benefit of an individual with a physical or mental disability. Only dogs can qualify as service animals, a limitation that does not apply to assistance animals, which means that cats, ferrets and other animals may qualify as assistance animals.

Municipal buildings are “places of public accommodation” under the HRA and, therefore, municipalities cannot discriminate against people because of a disability, including that person’s use of a service animal. In addition, the HRA requires that landlords allow tenants with disabilities to have the use of a service animal or an assistance animal.

The right to the benefit of service animals and assistance animals are limited if it can be shown that such an animal poses a direct threat to the health and safety of others. It is interesting to note that the potential adverse effects to a person with an allergy to the animal is not a sufficient reason for excluding such an animal. Rather, accommodations need to be made to allow for both the presence of the service or assistance animal and the person with the allergy.

It is a civil violation to mispresent an animal as a service or assistance animal, with the fine being not more than $1,000 for each occurrence.

So, the next time someone comes into town hall with an ostrich claiming it is a service animal, you really don’t have to let that ostrich in.

Let's Talk Municipal Finance – An Introduction

Sunday, January 8, 2017

This is the first in a series of posts discussing financing alternatives available to municipalities and certain other governmental entities, such as school, water, and sewer districts. 

Municipalities and other governmental entities throughout Maine and New Hampshire are primarily dependent on real estate tax revenues to finance their municipal projects, however, at times the cost of a certain project may require a lump sum of capital that exceeds revenues. When such a situation arises, those entities may choose to borrow money, which is then repaid over time from tax or other revenues.

For long-term financing, municipalities and other governmental entities frequently issue bonds, either on their own or through a pooled issuance, such as those with the Maine Municipal Bond Bank, the New Hampshire Municipal Bond Bank or the United States Department of Agriculture. Generally speaking, there are two types of bonds – general obligation bonds and revenue bonds. Although municipalities may issue either type of bond, they most frequently issue general obligation bonds, which are payable from the general tax revenues of the municipality. On the other hand, other governmental entities usually issue revenue bonds, which are payable only from the revenues of the specific issuer. For example, an airport that issues a revenue bond to construct a new runway may only use revenues from the airport’s operations to repay the bond, rather than the general tax revenues of the municipality where it is located.

At times, a municipality or governmental entity may not be able to wait until a long-term bond can be issued or annual tax revenues are collected. In that case, they may turn to bond anticipation notes or tax anticipation notes obtained directly through a bank, each of which serve as interim financing until funds can be raised either through a full bond offering or from tax revenues. In other cases, a municipality or governmental entity may choose to avoid debt financing altogether through the use of a municipal lease purchase agreement for new equipment, which is similar to a lease-to-own agreement.

In our next installment in this series, we will discuss the bond application and issuance process and in later installments, other forms of financing such as anticipation notes and municipal lease purchase agreements.   

Governor Certifies Marijuana Legalization Law

Saturday, January 7, 2017

Governor LePage has certified the vote on the legalization of marijuana in Maine, which is now going into effect on January 30, 2017. It will be legal to possess up to 2.5 ounces of marijuana and grow your own six plants. There is no system in place to distribute recreational marijuana. It will be legal to give it away.

A number of municipalities, including our clients in Augusta, Brunswick and Windham, have enacted moratoria against the development of retail businesses and social clubs. This allows Towns to determine whether to ban retail sales and social clubs and to decide whether there are good reasons to treat retail differently from other retail stores and social clubs differently than bars. At least one town, Oakland, has enacted a ban because it believed it did not have the authority to enact a moratorium because it did not have an adequate Comprehensive Plan.

At this point there is no great benefit nor downside to enacting a moratorium. This is because under the law, the Legislature has nine months to establish a system for legal sales and social clubs and will need to correct some of the errors in the law, including a loophole pointed out by Attorney General Janet Mills, which could be read to allow sales of marijuana to people under the age of 21. There will be an intense lobbying effort in the upcoming Legislature by numerous parties, including the established dispensaries, caregivers and other interested parties, to make changes to the law. The Governor has already proposed a one-year moratorium. Many people think the Department of Agriculture is not the best agency to administer the program. How will the medical marijuana law be affected? MMA has already put in a bill to clarify municipal home rule authority to regulate medical marijuana.

This blog will track the process of the legalization bill and other marijuana and municipal related issues through the Legislature on a weekly basis.