It’s A High-Flying Flag: Shurtleff v. Boston and Municipal Flag Policies

Yesterday, the U.S. Supreme Court issued its decision in Shurtleff v. Boston in which it ruled unanimously that the City of Boston violated the Constitution by denying a request from a religious organization to fly a Christian flag on a flagpole in front of City Hall. The Supreme Court held that Boston’s actions violated the First Amendment by restricting speech based on a religious viewpoint.

The Court’s decision supports the advice that Preti Flaherty has been providing to its municipal clients for several years. While community members may pressure municipalities to fly flags showing support for various causes, there is simply no clear way for municipal governments to avoid expressing impermissible viewpoint preferences when deciding what flags may or may not be flown. As a result, the best policy is to avoid the problem in the first place by only flying federal, state, and local government flags from municipal buildings. 

The full text of the Supreme Court’s decision may be found here.

An Update on the Pending Affordable Housing Legislation (LD 2003)

On March 16, after a marathon eight-hour work session, the Committee on Labor and Housing issued a divided report on LD 2003, Speaker Fecteau’s emergency affordable housing bill. The bill did many things in an effort to address Maine’s continued housing crisis; some good and some bad. On April 7, in response to extensive public comments, Speaker Fecteau introduced a significant amendment to LD 2003. The amendment removes many problematic provisions within LD 2003 and limits changes to residential zoning density requirements but also removes much of the financial and technical assistance offered to municipalities. Brief discussions of the key changes are below.

No More Human Rights Act Provisions

Speaker Fecteau’s amendment entirely removes LD 2003’s earlier provisions that prohibited municipalities from restricting local housing development based on the character of a location, overcrowding, or density. Several commenters had raised issue with those restrictions as they appeared to conflict with established law governing shoreland zoning, comprehensive planning, subdivision review, and zoning variances. Their removal from LD 2003 removes a significant cloud over the impact LD 2003 would have on existing zoning laws and review processes and should come as a relief for most municipalities. The amendment does require municipalities to ensure that zoning ordinances affirmatively further the purposes of the Federal Fair Housing Act and Maine Human Rights Act; however, this more nebulous requirement provides additional leeway for implementation and interpretation of municipal ordinances and regulations.

No More State Review of Local Decisions

Also removed from LD 2003 is the controversial Municipal Housing Development Review Board, which would have had the authority to review municipal decisions on housing development permit applications. It had been unclear how the Review Board would affect existing appeal processes and many commenters had expressed concern that State review of municipal decisions represented a loss of local control over distinctly local matters.

Modification of Local Assistance

Speaker Fecteau’s amendment further modifies the technical and financial assistance offered to municipalities to adopt and implement ordinances promoting housing development. Many municipalities lack the capacity and funding to draft, adopt, and properly administer comprehensive zoning and land use ordinances. State support for these activities has been lacking since the closure of the State’s Planning Office in 2012. As originally drafted, LD 2003 committed over $4,000,000 for the Department of Economic and Community Development to provide municipalities with technical assistance and grants for the development and implementation of zoning and land use ordinances.

The amendment creates the Housing Opportunity Program, administered by DECD, to provide grants to “experienced service providers” providing a range of services to municipalities related to promoting affordable housing development. The amendment commits $3,000,000 to the Housing Opportunity Program. The amendment removes funding originally committed to DECD to provide municipalities with technical assistance and instead authorizes DECD to provide such assistance to the extent possible “with available resources.” Additionally, the amendment removes the incentive funding available to municipalities working to adopt ordinances promoting affordable housing development. Together, these changes will reduce the much-needed technical assistance and funding available to municipalities but will generally expand DECD’s ability to assist municipalities.

While the reduction in available assistance is an unfortunate development, it is offset by the removal from LD 2003 of the requirement that all municipalities adopt zoning ordinances that prioritize areas for housing development. This requirement would have placed a significant burden on many smaller municipalities without comprehensive zoning that would not have been able to comply without technical and financial support from DECD.

Modified Density Requirements

Much of the controversy around the original LD 2003 involved its changes to municipal density restrictions. As drafted, LD 2003 required municipalities to permit affordable housing developments with dwelling unity densities at least 2.5 times greater than what was otherwise allowed in the underlying zone and allowed structures within residential zones to have up to four dwelling units, subject to some limitations. The amendment substantially narrows the density requirements of LD 2003 by only applying the 2.5 density multiplier for affordable housing developments in zones that permit multi-family dwelling units, and which are either within a designated growth area or served by public water and sewer systems. Additionally, the density requirement for residential zones has been reduced to two dwelling units for lots without an existing dwelling unit and four dwelling units for lots without an existing dwelling unit that are also within a designated growth area or served by public water and sewer systems. Municipalities are also required to permit lots with an existing dwelling unit to add up to two additional dwelling units, subject to certain restrictions.

Delayed Implementation

Maine’s long-standing shortage of readily available, affordable housing became a full-blown crisis over the past three years, as the COVID-19 pandemic greatly increased demand and housing costs throughout the State for both home ownership and rentals. Nevertheless, bowing to concerns regarding the timeline for implementation of the changes in LD 2003, Speaker Fecteau’s recent amendment removes the emergency preamble from the bill and delays implementation of many requirements related to affordable housing and residential zone density requirements to July 2023. The delayed implementation should come as welcome news for many municipalities, which would have had very limited time to amend local ordinances and policies and would have had to call special town meetings to adopt them within that timeframe.

Speaker Fecteau’s amendments address many of the concerns raised about LD 2003 and should largely come as welcome news to Maine municipalities. However, the bill will still need to proceed through the House and Senate, where it is likely to undergo additional changes.

What Can the IIJA Do for Your Internet?

As you may have heard, Congress has appropriated $65 billion for broadband projects within the Infrastructure Investment and Jobs Act (IIJA). Of that, $42 billion is being dedicated to the Broadband Equity, Access, and Deployment (BEAD) Program administered by the National Telecommunications and Information Administration (NTIA). Under the BEAD Program, Maine and every other state will receive at least $100 million to use for broadband projects in unserved (areas without 25/3 Mbps speeds) and underserved areas (those with below 100/20 Mbps speeds). The remaining $37 billion will be distributed among the states based on their share of the nation’s unserved areas. Overall, Maine should expect a significant influx of funding for broadband expansion projects over the next five years. These funds may be utilized by the State or distributed to municipalities through a grant-making program, presumably administered by the newly established Maine Connectivity Authority.

So, what does this mean for municipalities? Notably, the IIJA makes it possible for recipients to fund an eligible broadband project without spending a dime of their own funds. The BEAD Program requires recipients to pay for at least 25% of any project but allows them to use CARES Act and ARPA funding to do so. As a result, municipalities will no longer need to dedicate a significant portion of their coronavirus relief funds to broadband expansion. This should provide significant motivation for communities that may have been hesitant to undertake broadband expansion to reconsider.

Additionally, the IIJA will reduce the overall cost of and increase the potential locations for broadband expansion projects. The IIJA appropriates $1 billion for the aptly named Enabling Middle Mile Broadband Infrastructure (EMMBI) Program. The EMMBI Program funds the expansion and extension of middle mile infrastructure to reduce the cost of connecting unserved and underserved areas. Previously, one of the largest obstacles to any broadband project was finding a way to connect to the internet backbone from more remote locations. ARPA discouraged recipients from investing in middle-mile infrastructure and instead favored the use of relief funds for last-mile projects. The goal was to connect as many people as possible to existing broadband infrastructure as quickly as possible. However, that prevented many more remote recipients from investing in fully wired broadband expansion or required them to invest in wireless or gap network projects. The EMMBI Program will, hopefully, allow Maine to extend critical broadband infrastructure into new areas, reducing the cost of local broadband projects and opening up new areas for future-proof wireline broadband projects.

Though the timeline is not yet fixed, the NTIA will begin notifying states of their share of BEAD Program and other funding this spring. Once those funds are received, Maine will be able to begin the process of distributing them through a grant-making process. To capitalize on this opportunity, municipalities should start developing realistic and competitive broadband project proposals as soon as possible. Time is of the essence.

Please contact us if you have any questions on the IIJA or other broadband funding opportunities to expand broadband access in your community.

What Do the Supreme Court's Vaccination Rulings Mean for Your Business?

Reflecting the deep rift in public opinion concerning the government’s role in dictating how businesses, health care entities and public sector employers ought to act to stem the spread of COVID-19, a divided U.S. Supreme Court yesterday blocked an injunction of OSHA’s emergency rule which would have required an estimated 80 million employees to either fully vaccinate or submit to a regular testing program and mandatory onsite face covering requirement. The Court let a separate rule take effect requiring vaccinations for employees in nursing homes, hospitals and other facilities that receive Medicare and Medicaid payments.

With respect to OSHA’s ETS, the Court determined that the Sixth Circuit's decision to lift the injunction on the ETS was unwarranted and re-imposed a stay. Although that ruling does not technically dispose of the underlying legal challenges to the ETS, the decision relieves employers from complying with the ETS during the pendency of the litigation at the Sixth Circuit, and any further appeals. OSHA may opt to push ahead to implement some form of national standard regulation aimed at workplace pandemic prevention, although for now that is unclear.

In determining that OSHA lacked authority to issue the ETS, the Court noted that COVID-19 is not exclusively an occupational hazard, but rather something that everyone faces in their daily lives. Given that OSHA is principally tasked with regulating workplace health and safety, the Court determined that the regulation was likely beyond OSHA's legitimate reach. And, in holding that the balance of equities favored a continuation of the Sixth Circuit’s injunction, the majority opined that employers stood to incur billions of dollars in compliance costs and the ETS would cause thousands of workers to quit their jobs. The Court found that the ETS operated outside of OSHA’s authority by regulating public health more broadly rather than within its authority, which is limited to occupational hazards. The Court found that, although mandatory vaccination requirement would likely save lives and prevent hospitalizations, it was not the Court's role to weigh such trade-offs, which instead, was a responsibility better left to the legislative branch.

Although the Supreme Court’s ruling might settle the question of whether a federal mandate will be imposed on the private sector, at least through agency rulemaking, in Maine, the public sector will be keeping a close eye on a meeting of the Board of Occupational Safety & Health (BOSH) scheduled for January 18, 2022. BOSH, which has jurisdiction over Maine public sector employers, had intended this meeting to adopt an emergency rule replicating the ETS rule. The question will be whether BOSH has any intention – or authority – to move forward with a state-based rule in the absence of the federal mandate.

The Court’s decision to uphold the vaccination mandate imposed by the Centers for Medicare and Medicaid Services (CMS) did not come as a big surprise given the trend of lower court decisions on the subject. While in states like Maine this ruling has no practical impact because a state mandate has already been imposed and upheld, in many other states the ruling lifts injunctions that had blocked the federal mandate from applying. New Hampshire is one such state. Nationwide employers in the healthcare sector are now mandated to impose vaccination mandates on all their workers, regardless of location. The general guidance provided by CMS should be followed by all subject to the rule. That guidance, dated December 28, 2021, sets certain compliance thresholds to be achieved within 30 and 60 days, with 100 percent vaccination compliance required within 90 days of that date. It is unclear whether CMS will allow additional time to covered employers in the states affected by the Court’s decision.

Where does all this leave employers below the 100-worker threshold and those which would have been obligated to implement the ETS had the Court upheld the Sixth Circuit’s stay?

Private sector employers have the flexibility to develop and implement their own strategies or do nothing, subject of course to existing state and local laws which were unaffected by the Court’s ruling on the ETS. To date, either through executive orders or legislative action, 20 states have enacted prohibitions on the imposition by businesses and localities of proof-of-vaccination requirements or so-called vaccine passport programs. By contrast, another 5 states have taken action to facilitate the creation of digital vaccination status applications or have passed laws exempting fully vaccinated individuals from some COVID-19 restrictions if they can provide proof of vaccination. For now, the only common denominator is this -- because OSHA cannot impose its ETS on employers any policy decisions with respect to workplace pandemic prevention are being left to individual states.

Private sector employers in Maine, New Hampshire and Massachusetts remain subject to whatever state and local regulations are in place concerning workplace pandemic prevention requirements. Beyond those, employers have a myriad of choices in crafting how to supplement those requirements if at all. Employers that wish to implement vaccination incentives for their employees, those who want to set up a periodic testing program, and even those who wish to implement some form of mandatory vaccination requirement, are in a position to develop and implement policies and procedures scaled to their operations.

Preti's Labor and Employment team can guide employers through these options and help determine which workplace pandemic prevention strategies achieves the best balance between worker safety, your operational demands and legal compliance.

Treasury Department Expands ARPA Funding Eligibility for Broadband Development

On January 6, 2022, the Treasury Department issued its final rule on the American Rescue Plan Act State and Local Fiscal Recovery Funds (“SLFRF”) program and it contained good news for municipalities considering broadband infrastructure investments. In response to concerns raised by broadband advocates and recipients, Treasury has significantly broadened the scope of eligible broadband infrastructure projects, granted recipients more discretion in the use of funds received, and acknowledged the importance of affordable broadband access.

Under the interim final rule issued by Treasury in May 2021, recipients could only use SLFRF funds for broadband infrastructure projects in unserved or underserved areas (those with broadband speeds of less than 25 Mbps download and 3 Mbps upload). Additionally, the interim rule discouraged investment in areas with existing broadband infrastructure projects. Though these requirements were based on reasonable evidence about broadband use and needs, they prevented municipalities from deploying SLFRF funds for many worthy projects. Treasury has loosened many of these restrictions in the final rule.

First and foremost, the final rule permits SLFRF-funded projects in any area with an “identified need” for broadband infrastructure investment. Recipients now have broad discretion to identify areas with need and the final rule indicates that areas without a wireline connection reliably delivering 100/20 Mbps speeds or without affordable or stable broadband service are considered to have an identified need. The increased minimum speed will allow municipalities to utilize SLFRF funds in much broader areas and to strengthen broadband infrastructure in those that already met the speed standard of the interim final rule. The updated speed standard in the final rule exceed those employed by ConnectME and other grant makers and may allow municipalities to further leverage SLFRF and other state funding for their broadband infrastructure projects.

Additionally, the final rule acknowledges that, for many people, affordability, rather than lack of service, is the primary obstacle to broadband access. In addition to making lack of affordable broadband service an identified need, Treasury will now require recipients to ensure that any service provider using SLFRF-funded broadband infrastructure offers affordable service and provides at least one low-cost option without data caps and with speeds that enable modern broadband usage.

Lastly, the Final Rule has loosened the prohibition on using SLFRF funds in areas that are already receiving federal funding for broadband infrastructure projects. Treasury will now permit recipients to use SLFRF funds in existing project areas, provided the SLFRF funds are addressing an identified need that will not be remedied by the other project.

Together, these changes have opened the door for municipal broadband infrastructure investments and development. Please contact us if you would like any additional information or guidance on the Final Rule’s impact on your planned or proposed project.

Broadband Funding Options: Show Me the Money!

The federal government’s recent largesse has made broadband infrastructure development a focus of discussion in many communities. The pleasing number of zeroes contained in the American Rescue Plan Act (ARPA) and more recent infrastructure bill may, however, distract from other available sources of broadband development funding. There are several existing state and federal loan and grant programs that may ultimately be better suited to certain projects or needs. It is critical for anyone exploring broadband expansion or improvements to understand the full spectrum of funding opportunities now available and whether you meet the qualifications.

Maine now has two primary grant-making agencies—the ConnectMaine Authority (ConnectME) and the Maine Connectivity Authority (MCA). ConnectME offers two types of grants to counties, municipalities, and community groups seeking to invest in broadband expansion. Community Broadband Planning Grants are made available to help communities plan for broadband service expansions. Those seeking a Planning Grant must first complete ConnectME’s Startup Grant program, which provides a small infusion of funds and support services to help the recipient build the community and legislative support necessary for a successful broadband project. ConnectME’s Infrastructure Grants are made to support investment in physical infrastructure through provider expansion or community-driven broadband projects. Infrastructure Grants are typically made to service providers that partner with community groups or municipalities to expand or improve broadband service within a given area. In addition to its grants, which range in size depending on the scope and nature of the proposed project, ConnectME provides a level of experience and expertise that makes it a valuable initial or supplemental funding source for anyone exploring local or regional broadband development projects.

The recently established MCA is charged with deploying $150 million Maine received through the American Rescue Plan Act (ARPA). The MCA was created to ensure that all Maine people have access to secure, affordable, and reliable broadband access. The Maine Legislature has given the MCA expansive powers to improve broadband infrastructure, to provide funding directly or through other State agencies to others for the same, and to operate its own broadband networks. The MCA is still developing its rules and funding process and will likely not begin distributing funds until mid-2022.It will surely, however, serve as an important source of funding for local and regional broadband initiatives moving forward and we are paying close attention to MCA’s activities.

In addition to the well-publicized ARPA funds made available to counties and municipalities, the federal government has reinvigorated several existing programs that offer loans and grants for broadband development projects. These include the U.S. Department of Agriculture’s Rural Utility Service which administers the Community Connect Program (CCP) and Rural E-Connectivity Program (ReConnect). The CCP provides grants for broadband expansion within eligible rural communities. The RUS has recently reserved and solicited applications for 10% of its CCP funding, approximately $60 million, for multi-jurisdictional projects, while ReConnect has received an additional $100 million to provide loans to local governments within eligible service areas for the construction or improvement of broadband infrastructure and facilities. Though both programs are limited to certain rural communities, the CCP and ReConnect offer significantly more funding than ConnectME grants. As a result, the CCP and Reconnect programs have been important resources for larger broadband infrastructure developments, including those in Roque Bluffs, Cranberry Isles, Arrowsic, and Monhegan Island. And, well, as they say, with great financing comes onerous compliance. CCP and ReConnect recipients must be prepared to perform significantly more compliance and reporting work than they would under Maine programs.

As more funding becomes available for broadband infrastructure development, knowing which funding sources are appropriate and beneficial to any given project, and available to the applicant, will be more important than ever.

FOAA Changes Now in Effect

Several changes to Maine’s Freedom of Access Act quietly went into effect on October 18, 2021. Passed in the waning days of the Legislature’s special session, L.D. 1345 and 1346 expanded mandatory FOAA training requirement for municipal officials, modified the Right to Know Advisory Committee membership and responsibilities, and limited the fees that officials and agencies may charge for compiling FOAA responses.

Upcoming FOAA trainings will need added seating. Under L.D. 1345, an expanded list of municipal officers and officials must complete a mandatory FOAA training within 120 days of assuming their duties. The newly added officials include municipal clerks, managers, administrators, code enforcement officers, and their deputies; planning board members; and superintendents, assistant superintendents, and school board members of school administrative units. As a result, these officials must complete the training and file a certificate of completion as required under Title 1, section 412. The law isn’t clear about how it pertains to sitting officials; to be safe, we recommend that all officials receive this training within 120 days from the law’s effective date.

There are also changes to the FOAA’s permitted staff time and per-page copy fees. L.D. 1346 increased the maximum hourly charge for staff time spent compiling responsive records from $15 to $25. However, it also increased the “no charge” period for staff time from one hour to two hours. In addition, L.D. 1345 limited the per-page copy fee for black and white copies of records to $0.10 and entirely prohibits per-page copy fees for records provided electronically (note, we think it is defensible to charge where printing is required to fulfill a request, even if the ultimate production is sent electronically). While L.D. 1346 explicitly authorized agencies to retain any fees charged under the FOAA, these other changes are likely to reduce the total amount of fees municipalities and agencies receive for FOAA responses. For example, due to the increased “no charge” period for staff time, responses requiring less than three and a half hours of staff time to complete will incur a lower fee than under the previous system. These modifications may ultimately reduce the costs borne by individuals who request records under FOAA but will also reduce the ability of municipalities and agencies to defray staff and material costs incurred to produce those records.

These changes to the FOAA may require updates to employee manuals, trainings, and general practices. Please contact us for additional information or guidance on this topic.