Is There a Right to a Jury Trial for Land Use Enforcement Actions in Maine?

According to a recent decision from Maine’s Superior Court, the answer depends on whether a municipality is seeking injunctive relief, such as an abatement of a zoning violation, or whether the municipality is seeking only monetary penalties. Where a town is seeking primarily injunctive or equitable relief, there is no right to a jury trial.

In Town of Lebanon v. McDonough (York County, Aug. 21, 2018), the town issued a notice of violation (NOV) finding that a property owner had continued construction in the shoreland zone after receiving a stop work order. After the owner failed to comply with the NOV, the town filed a Rule 80K complaint in the District Court alleging various violations of the shoreland zoning ordinance. In terms of relief, the town requested a permanent injunction and removal and abatement of the violations, as well as civil penalties and attorneys’ fees. The owner removed the case to the Superior Court and requested a trial by jury.

The Superior Court found that the town’s primary pursuit in the case was the removal or abatement of a zoning violation. Because the town’s primary claim was for injunctive relief, the court found that the defendants did not have a right to a jury trial. Although the town also sought civil penalties, the court found that this was an ancillary claim and did not make the town’s primarily equitable claim into a legal claim for damages that would entitle the defendants to a jury trial. Because the only basis for removing the case to Superior Court was “for a jury trial,” and because no jury trial was available given the primarily equitable nature of the town’s claims, the court found the removal improper and sent the case back to the District Court.

“Opt In” Begins for Medical Marijuana Stores

December 13 was the effective date for bills passed by the 128th Legislature, including LD 1539, An Act to Amend Maine’s Medical Marijuana Law. Prior to this amendment, medical marijuana stores had gotten around the five-patient limit by eliminating one patient from their roster when the next one walked through the door. The law now formally allows medical marijuana caregivers to serve an unlimited number of patients, eliminating the need for them to maintain these “rolling rosters.” The law also specifically prevents medical marijuana storefronts from locating in a municipality unless that municipality has affirmatively passed a zoning or other ordinance which specifically allows them.

If a municipality already has one or more medical marijuana storefronts which are operating with some type of land use approval, the law does not allow that municipality to now prohibit those particular stores. However, new stores and existing stores operating without municipal approval will not be considered legal unless and until the municipality “opts in” by enacting an ordinance to allow them. We are working with many of our municipal clients to develop licensing and zoning ordinance provisions to address both adult use and medical marijuana establishments now that we have a solid legislative framework governing the scope of municipal authority.

Supreme Court Ruling Affects Maine Public Sector Unions

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

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

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

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

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

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

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.

Maine Legislature Allows Recreational Marijuana Law to Go Fully into Effect

The Maine State Legislature today voted against legislation extending the moratorium that had held the citizens’ enacted recreational marijuana law from going into full effect since its enactment in November 2016 (it has been legal since early 2017 to possess up to 2.5 ounces of marijuana, grow your own plants, and to give gifts of marijuana to other people). The immediate effect of the law should be to spur the required state licensing rulemaking process to be completed. The law provides for licensing systems for retail and social clubs, and mandates that rulemaking procedures occur before those licenses are issued. Licenses will be required for retail sales, social clubs, production, and testing facilities. The State rulemaking proceeding will take a considerable amount of time to develop the rules. Under the new law, a municipal license is also required before any retail establishment can open. The State must provide all license applications on State forms.

The medical marijuana law is unaffected by the recreational marijuana law.

Undoubtedly many questions and issues will be arising about this and we will be updating this blog as things happen.

Town Helps Residents End Water Rationing

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

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

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

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

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

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

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

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