Are Stay at Home Orders an Unconstitutional Taking?

Friday, April 3, 2020

In the midst of the COVID-19 pandemic, a question some are asking is whether there is a risk that governments will have to deal with claims that they have unconstitutionally taken value from property owners with the various stay at home edicts, closures, and other similar responses to the pandemic. The short answer is that such claims are unlikely to be successful as long as an ordinance and the local charter are followed, but it is a worthwhile discussion to keep in mind as municipalities consider their response to the pandemic.

The Constitution separates takings into two categories: physical and regulatory. A physical taking is, just like it sounds, when a government takes property away from an owner. It is fairly easy to identify physical takings, such as when DOT or a municipality takes property to build or expand public roads. A physical taking is unlikely – I am not aware of any governmental bodies in the U.S. physically taking property in response to the pandemic – but conceivably a municipality could take a building for quarantine or medical purposes. Should that occur, the municipality would need to pay the owner fair market value of the property taken. Since most of the buildings or spaces suitable for such uses are public buildings or spaces (e.g., the tents in Central Park in New York City), it is improbable that municipalities will need to compensate in such a way. 

On the other hand, regulatory takings could, in theory, apply to certain federal, state and local responses to the pandemic. Certain businesses deemed nonessential and specifically ordered to close undoubtedly will take a financial hit. Hair salons, theaters, and gyms, among others, forced to close could make an argument for lost income as a result of government measures to curb the spread of COVID-19 by claiming governments have violated the U.S. and Maine Constitutions in doing so. The Fifth Amendment provides protection against federal takings, while the Fourteenth Amendment protects against state and local takings.

Given what the CDC, the Maine CDC, and most public and private medical professionals have stated concerning COVID-19, governmental stay at home orders, forced closures, and so on are almost certainly a “valid use of police power,” which powers are given to states under the Tenth Amendment to act for the well-being of the public. The most important thing will be to make sure any emergency actions or orders strictly follow a local emergency planning ordinance and the municipal charter.

DOL Publishes Required FFCRA Poster and Guidance

Thursday, March 26, 2020

The federal Department of Labor has released the poster that all covered employers must post to inform them of emergency benefits available under the Families First Coronavirus Response Act (FFCRA). The poster can be found here. Municipalities whose employees are principally working from home during this time should plan to circulate it by email on April 1, the effective date of the Act.

The DOL has also issued helpful guidance regarding the applicability of the Act. However, uncertainty remains and we are happy to answer any questions that arise.

Maine Legislature Passes COVID-19 Omnibus Bill re Public Meetings, Finance, and Other Municipal Concerns

Wednesday, March 18, 2020

The Maine Legislature last night passed emergency legislation, LD 2167 (referred to as the COVID-19 Omnibus Bill), which addresses many of the concerns being faced by municipalities in this unprecedented situation. Following is our summary of the provisions of this law which impact municipal government:


Public meetings

  • During the declared state of emergency, meetings of municipal boards and committees may be conducted remotely by telephone, video, or Internet. The method must be adequate to allow members to hear and speak to one another, and must allow the public to hear what is said.
  • Notice must still be provided (we recommend emphasizing web and press announcements during this time, if offices are closed and physical postings are not possible). The notice must include information on how the public may watch and/or participate. Again, remember that you do not need to make provision to accept public comments unless the meeting will include a required public hearing.
  • The law does not appear to require that you provide a physical space and phone, terminal, or display where the public can attend in person to watch or listen to the proceedings.
  • Votes taken at a remote meeting must be by roll call.


Budget and finance

  • Similar to the process for enacting school budgets, the law allows for a municipality that cannot adopt its budget at the customary time to spend according to the prior year’s adopted budget until the current year’s budget can be passed. If these delays continue to the point at which commitment becomes necessary, taxes may also be committed based upon the prior year’s budget.
  • During the period of the declared state of emergency and for 30 days after, disbursement warrants may be signed by a majority of the municipal officers with no public meeting required. The implication is that the municipal officers may sign individually with no meeting required.
  • If the level of state education subsidy is not finalized before June 1, 2020, the school budget meeting and validation process may be delayed until 30 days after either DOE notifies the school unit of the amount of subsidy or the state of emergency ends. If the budget is delayed under this provision, the school may operate based on the prior year’s budget between July 1 and the date the new budget goes into effect.


Elections

  • During calendar year 2020, the municipal officers may postpone a municipal secret ballot election by posting a notice in a conspicuous public location at least two days prior to the election. The notice must either indicate the new date of the election or indicate that the municipal officers will schedule it at a date to be determined. Ballots already printed for that election may be reused for the rescheduled election (despite including the wrong date), and absentee ballots already cast for the election must be held by the clerk and processed on the rescheduled election date.


Employment

  • If an employee is laid off as a result of the state of emergency, unemployment benefits paid to him/her will not be charged against the employer’s experience rating.
  • Employees will be eligible for unemployment benefits if they are (1) subject to a quarantine or isolation requirement; (2) have been temporarily laid off due to COVID-19 related closures; or (3) are on temporarily leave due to quarantine, isolation, or need to care for dependent family members as a result of COVID-19.


Education

  • The Governor and Commissioner of Education may develop a plan to waive compulsory attendance requirements and/or allow remote learning to take the place of in-person instruction requirements.
  • The Governor and Commissioner of Education will also implement a plan to continue to provide nutrition services during any period of COVID-19 related school closures.


Other municipal business

  • Vehicle registrations, liquor licenses, and dog licenses are deemed extended until 30 days after the end of the state of emergency.
  • Vehicle registrants may use the Rapid Renewal program even if their municipality does not already participate.

Municipal COVID-19 Update

Monday, March 16, 2020

We are understandably getting many questions from our municipal clients regarding how to handle public meetings, annual meetings, and public transactions given the Governor’s order prohibiting large gatherings. The other significant area of concern involves questions about how to balance serving the public while protecting your workforce. Several municipalities, including Portland and Augusta, have declared local states of emergency invoking powers only contemplated in times of crisis.

We are expecting that the emergency legislation being considered by the State Legislature tomorrow will include provisions suspending all or some of the FOAA requirements related to public meetings. For now, our best guidance as to how to handle meetings is as follows:
  • Postpone non-essential board and committee meetings.
  • If a meeting must be held, consider using Facebook Live, YouTube Live, or another streaming service. Remember that the public has the right to view all meetings, but not the right to speak (unless it is an advertised public hearing). For those members of the public who demand to attend in person, reduce risk by spacing out seating and/or providing a secondary room or location where the meeting will be streamed for those who do not have internet access from home.
  • Members of boards who are particularly vulnerable due to age or underlying medical conditions may participate in the meeting by phone, Skype, Facetime, etc.. At this time, you should not worry if a quorum or majority of the board is participating remotely.
  • (For town meeting towns only) If your annual town meeting falls within the next two months, consider having a special meeting only to make appropriations to fund municipal government as necessary to allow extension of the annual town meeting. Even if your charter requires that the annual meeting be held on a certain date, delay is very unlikely to impact the legality of the meeting whenever it is held. We expect this issue to be addressed by the Legislature.
Employee issues must be dealt with on a case-by case basis with an eye to consistent policies and fair treatment.

We will be in touch tomorrow evening or as soon as possible thereafter with clear, updated guidance following the Legislature’s vote. In the meantime, please do not hesitate to contact us with any questions.

Be well,

Stephen Langsdorf and Kristin Collins

Superior Court Ruling Supports Municipal Authority

Wednesday, March 11, 2020

Michaela Murphy of the Kennebec County Superior Court recently issued a decision in favor of the Town of Readfield. The case was brought by a property owner whose occupancy permit for a residential structure had been revoked by the Code Enforcement Officer because he had misrepresented its intended use.

 The permit was revoked because the property owner was openly using the site as a commercial concert and events center where it was not allowed per zoning map. The Town also refused to put a rezoning question out for town meeting vote despite receiving the required number of signatures on the petition because the rezoning would have violated the comprehensive plan. 

Justice Murphy ruled in favor of the town on all counts. She strongly reinforced a municipality’s right to revoke a permit when clear misrepresentations had been made regarding its use and the use was in violation of applicable land use restrictions. This is an alternative way to enforce a claim rather than going to District Court for an 80K action. The Court also upheld the Select Board’s right to make a determination that certain questions not be put to a Town meeting vote.

This case was handled by Kristin Collins and Stephen Langsdorf of Preti Flaherty.

NH Supreme Court Clarifies Law Relating to Highways by Prescription

Friday, February 21, 2020

Public highways established by prescription are only those that have been used for public travel for 20 years prior to January 1, 1968. (See NH RSA 229:1.)  In Town of Dunbarton v. Guiney et al. (decided February 5, 2020), the New Hampshire Supreme Court clarified the nature of the proof needed to establish a highway by prescription. The trial court in that case found that a highway by prescription had been established; however, the Supreme Court reversed, finding that there had been insufficient proof as to the “adversity” of the public’s use of the way. 

The Supreme Court first cited the general law that to establish a highway by prescription it must be shown that the general public used the way continuously for a period of 20 years prior to 1968 and that the public use was adverse (i.e., without the owner’s permission). The primary evidence introduced to show the highway by prescription was maps that pre-dated 1968 by more than 20 years. The Court held that the maps, by themselves, were competent evidence to support an inference of continuous and uninterrupted public use but were not sufficient to support a finding that the public use was adverse to the owner over whose property the way traversed. 

The Court held that to meet the adversity requirement, the nature of the use must be such as to show that the owner knew, or ought to have known, that the right was being exercised, not in reliance upon the owner’s permission, but without regard to the owner’s consent. The only evidence introduced in that regard was that the Town had used the area in question to allow its plow trucks to turn around safely. The Court held that this was insufficient to put the owner on notice that the use was adverse and being made under a claim of right by the Town. The Court appeared to establish the standard as whether or not a reasonable person would understand the municipality to be making a claim of right to the property by its use of the way. 

Lessons learned from this recently decided case include: 
  1. Maps predating 1968 are insufficient by themselves to meet the “adversity” requirement for establishing a highway by prescription; 
  2. There must be some further indication of adversity, of a claim of right without the owner’s permission, such as stone walls or commercial enterprises along the road; and 
  3. To establish the requisite adversity, the general standard is whether a reasonable owner would understand the public to be making a claim of right by its use of the way.

Regulating Tiny Homes

Monday, February 10, 2020

On January 30, the Joint Standing Committee on Transportation heard public testimony regarding LD 1981, An Act Regarding the Regulation of Tiny Homes. The concept draft bill proposes to define a “tiny house” and allow for the titling of a tiny house as a camp trailer or trailer.

This bill comes after the Maine State Bureau of Motor Vehicles ceased registering, assigning vehicle notification numbers, and titling tiny homes on wheels in June 2019, preventing tiny home buyers from securing financing from traditional lenders. Prior to June 2019, the Bureau of Motor Vehicles registered and titled tiny homes as camp trailers or trailers under Title 29-A. Owners could freely move their tiny houses as often as they wished. 

Currently, owners of tiny homes must obtain a one-time transit permit from the Secretary of State in order to move their homes. The Bureau of Motor Vehicles has taken the stance that tiny homes do not fall within the definition of a camp trailer or trailer, nor do they fall within the definition of manufactured housing. 

Tiny homes may present an environmentally friendly solution to the rising cost of housing and, for some, play into a desire to live a more minimalist, “off the grid” lifestyle. However, their ambiguous status under state law has traditionally made it difficult to say where they fall under municipal land use ordinances and building codes, and whether they should be taxed as real or personal property. If tiny homes with wheels can be titled and registered as vehicles, this may provide some clarity regarding both issues.