Municipal COVID-19 Update

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

NH Supreme Court Weighs in on Short-Term Rentals

In an opinion issued on September 27, 2019, the New Hampshire Supreme Court addressed the regulation of short-term residential rentals. The Court’s decision provides guidance for municipalities in regard to the allowance of short-term residential rentals, such as through websites like Airbnb, Home Away, and VRBO. 

In Working Stiff Partners, LLC v. City of Portsmouth, single-family, two-family, and multi-family dwellings were allowed in the applicable zoning district. The Portsmouth Zoning Ordinance (PZO) defined a “dwelling unit” as follows: 

… A building or portion thereof providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation. This use shall not be deemed to include such transient occupancies as hotels, motels, rooming, or boarding houses. (Emphasis added.) 

The Court found that short-term rentals of as little as one day at a time constituted “transient” occupancy and were thus explicitly excluded by the PZO definition from being a “dwelling unit.”

However, many zoning ordinances in New Hampshire have a definition of “dwelling unit” similar to Portsmouth’s definition except that they do not expressly exclude transient occupancy. The Court’s decision thus leaves open the question of whether short-term rentals may be prohibited where the local ordinance definition does not expressly exclude transient occupancies. 

There were other facts in the Portsmouth situation which may have influenced the Court’s decision. The property in question was advertised on Airbnb as allowing occupancies of as little as one day; and was also advertised as being suitable for “family parties, wedding parties, and corporate stays.” The Court may have reached a different result if the property in question could only be rented for longer periods of time (e.g., a minimum of one week), or if the property’s use did not include wedding parties, corporate stays, and other events, but was limited to single-family residential usage.

Thus, while the Court’s decision appears to allow municipalities to regulate short-term residential rentals, municipalities may not want to prohibit them, or may only want to prohibit them in specific zoning districts, or may only want to regulate them, for example: 

• By allowing short-term residential rentals but prohibiting wedding parties, corporate stays, or other commercial uses; or 
• By requiring residential rentals to be a minimum duration (say, one week); or 
• By requiring short-term rental owners to register as such and be subject to inspections for health and safety purposes. 

Whatever municipalities decide, they should consult counsel to make sure that their zoning definitions and provisions accomplish the result they want to achieve.

Animal-Related Ordinances – Out of Sight and Out of Mind?

When was the last time you checked your animal-related ordinances to confirm that they were keeping up with, and meeting the needs of, your ever-changing community? These ordinances are easy to overlook until you need them and then, unfortunately, the tools you need may not be there. Maine law provides broad authority to enact and enforce animal-related ordinances. 

We see in our state, municipalities that include within their borders urban, residential, industrial, rural, and agricultural areas. We also see municipalities entering into contract zones or approving conditional zoning ordinances as appropriate when faced with development projects. Our rapidly changing communities need animal-related ordinances that will keep up with the new realities. For example, the person who has for many years kept horses on his or her property that may have escaped from their fenced in area from time to time, finds that his or her property is now near a road with increased traffic—an escaped horse puts both the drivers of automobiles and the horses at risk. Or, how about the person that keeps their dogs tied outside all the time. While every municipality should consider having an ordinance that puts some parameters around this, especially in the heat of the summer and the frigid winters, what do you do about the barking? Maybe you rely on your noise ordinance, but will it be enough? 

New realities include how animals are viewed, especially pets. The pet business is growing and raking in billions of dollars, which evidences the evolving view of animals kept in the household. You may recall the outrage generated when the Town of Scarborough was discussing enacting ordinances that would ban dogs from certain of its beaches during certain times. Even though this was in response to an incident related to a bird and the IF&W threatened to fine the Town, members of the community demanded that the Town act proportionately. The Town created an Animal Control Advisory Committee who generated a report attempting to balance the environmental issues with the rights and needs of dog owners. 

Also for consideration: Do you allow residents to keep a small number of chickens, even in urban areas, to provide eggs to the family? Does your ordinance contain reasonable requirements for dog day care and boarding facilities, a service used by so many people? 

Finally and importantly, are your animal-related ordinances humane and actually help you get the results you wish to achieve? Do they impose the punishment on the right party—the person violating the ordinance as opposed to the animals he or she is supposed to care for? Do you have the tools you need?

Municipal Officers Can Pass Certain Ordinances

Even in towns where all legislative authority rests with town meeting, the Selectmen or Town Council have authority to pass certain kinds of ordinances. Following is a list of those topics: 

Traffic Control Ordinances – Title 30-A M.R.S. § 3009 allows the municipal officers to enact ordinances governing: 

• Pedestrian traffic, including the use and maintenance of sidewalks and crosswalks. (Yes, the municipal officers can pass an ordinance requiring property owners to clear snow from sidewalks.)
• The operation of vehicles in the public ways and on publicly owned property. (Towns have used this to pass Jake brake ordinances, motorcycle noise ordinances, and various other issues that aren’t covered by state law).
• Parking in public ways or public parking areas.

Extension of Moratoria – While town meeting must enact the original moratorium, the municipal officers may act to extend the moratorium for additional 180-day periods upon a finding that the conditions which called for the moratorium still exist. (30-A M.R.S. § 4356)

Cable TV Ordinances – The municipal officers may enact ordinances governing the franchising and regulation of cable TV within the municipal boundaries. (30-A M.R.S. § 3008)

General Assistance Ordinances – These ordinances govern the processing and application requirements for receiving general assistance from the municipality. Each year, the municipal officers must also amend the local maximum levels of assistance. (22 M.R.S. § 2305) (Note that Maine Municipal Association provides a model ordinance as well as annual suggested maximums.)

Local Snowmobile and ATV Access Routes – Under state law, snowmobiles and ATVs may not travel within the public way. However, 12 M.R.S. 13106-A(5)(G) gives the municipal officers authority to pass ordinances allowing for such travel if they determine that it can be done safely.

Standing to Appeal Requires “Continuous Participation”

Local appeals boards are usually in the habit of considering the particularized injury prong of the standing test, but often brush over the participation prong. The Lincoln County Superior Court recently issued a decision in Our Town, et. al. v. Town of Damariscotta, et. al. (Lin. Cty. Super. Ct. Dkt. WISSC-AP-2018-3), which serves as a good reminder to local boards of appeals that they have jurisdiction to review and determine whether the appellants before them have sufficiently participated in the hearing process. 

Most municipal ordinances allow for an “aggrieved party” to appeal local administrative decisions. To be “aggrieved,” a party must show that he or she participated throughout the administrative process, and that the decision causes him or her to suffer a particularized injury or harm. Participation generally requires the party to have attended the relevant meetings (whether in person or through written comments) and raised any issues he or she may have. When the appellant is an individual, participation is usually easy to demonstrate through examination of the meeting record. However, as discussed in the Our Town case, it can be more complicated when a group or coalition is appearing as an appellant. 

In Our Town, a group of affected individuals presented an appeal of a site plan approval issued by the Damariscotta Planning Board. When the Board of Appeals considered whether the group had standing, it noted that one of the members had appeared at a pre-application workshop, that none of the members had appeared at the Planning Board meetings on the application, and that one of the members had submitted written comments after the close of the hearing. Accordingly, it found that Our Town did not have standing because its members had not continuously participated in the review process. The Court agreed, holding that because it was the group that was asserting standing, the individual members had to have identified themselves as members of the group when they appeared. The Court also held that participation before and after, but not during the hearing, was not sufficient to demonstrate continuous participation. 

Appeals boards should, as a preliminary matter, evaluate both prongs of the standing test before proceeding to the merits of an appeal. If, on review of the record, it is clear that the appellant did not sufficiently participate in the review process, the Board is free to deny the appeal, and a court is likely to give that decision a good degree of deference.

“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.

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.

Maine Court Reiterates That Private Persons Do Not Have Standing to Enforce Land Use Ordinances

The Maine Superior Court recently issued a decision reiterating that only municipalities have the authority to enforce land use regulations. The decision is a reminder that private persons are not entitled to sue for enforcement of a land use ordinance and that, if they do, any such action may be dismissed.

At issue in Emanuel v. Town of Bristol was the use of a refrigerated trailer at a lobster wharf, which several nearby residents objected to because the trailer was loud and ran at unpredictable intervals. After the wharf owner did not respond to the residents’ concerns, the residents contacted the town with their objections, claiming that the trailer was being used without prior review or approval by the Town’s planning board or code enforcement officer (CEO). The residents requested that the Town require the wharf to obtain a planning board permit. In response, the Town’s CEO explained the trailer was not a “structure” requiring a permit and that, because there was no consequent violation of the shoreland zoning ordinance (SZO), the Town would not issue a notice of violation. The residents appealed the Town’s decision to the Superior Court.

On appeal, the Superior Court pointed to two previous decisions from Maine’s Law Court, both of which found that private persons did not have standing to initiate enforcement proceedings against their neighbors. Based on these decisions, as well as the language of the SZO, the Superior Court found that it is the duty of the CEO, not private persons, to enforce the SZO and to investigate complaints of alleged violations. And, if the CEO’s actions do not result in an abatement of the violation, then it is the municipal officers of the Town who have the authority to initiate legal action – not private persons.

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.