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.

Maine Superior Court Upholds Refusal to Honor Citizens’ Petition

The Town of Brunswick recently prevailed in a case regarding the Town Council’s decision to sell a waterfront property that had been acquired through tax foreclosure. The plaintiffs, several citizens, had presented a petition to the Council which sought a referendum vote to enact an ordinance designating the property as a municipal park. However, the Council had already considered designating the property as a park and ordered instead to put it out to sale. Based on our advice, acting as the town's attorney, the Council chose not to put the question to referendum because it sought to overturn a Council order and there was no authority to do so under the charter. 

This case is a good reminder that municipal charters can strictly limit—or even eliminate—the right to citizens’ petition otherwise available under Maine law. Brunswick’s charter allows only ordinances, and not orders, to be overturned by petition. This makes sense because the Council needs to be able to transact the Town’s more routine business without concern that its every action might be overturned through referendum. Although the petitioners argued that they were seeking to enact a new ordinance, not to overturn an order, the Maine Superior Court justice found that the petition did seek to overturn a Council order and was properly barred. The Court also denied the appeal on the grounds that the Town had already sold the property by the time the case was heard.

Lis Pendens Only Available when Title to Real Estate is Involved

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.