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

Superior Court Ruling Supports Municipal Authority

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

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

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.

Abandoned Roads: Not Abandoned Yet

This week, the Legislature will hold a public hearing on LD 1415, “An Act to Improve the Laws Regarding Discontinued and Abandoned Roads.” The status of formerly maintained public roads has been (and almost certainly will continue to be) perennially and vociferously debated at the Statehouse. Few issues coming before the State and Local Government Committee raise emotions like former public roads do. Nor are few issues so repeatedly and substantively revisited by the Committee.

Under current law, a presumption of abandonment exists if a municipality fails for a period of 30 or more years to keep a way passable for the use of motor vehicles at the expense of the municipality. LD 1415 eliminates that presumption for ways that have not met that statutory requirement by January 1, 2020, and instead specifies that the only process that a municipality may use to terminate its interests in a public way is through the discontinuance process established in 23 M.R.S.A. section 3026-A.

The public hearing on this bill is scheduled for 11:00 am on Wednesday, January 29, 2020, in the State and Local Government Committee Room.

Bill to Allow Public Sector Strikes Meets Opposition in the Legislature

LD 900, which was introduced in February 2019, and carried over to the short 2020 session of the 129th Maine Legislature, would allow public employees the right to strike. Strikes by public sector employees are illegal by statute in Maine. All that would be necessary is for a majority of the membership of the union to vote in favor within three days prior to the date upon which the strike is intended to start. The bill does not set forth any standards which must be met in order to call a strike. The only exception to the bill is that employees whose duties include public safety would not be allowed to strike. 

If this bill was enacted, it would be a major change in public sector labor law and would dramatically affect the balance of power in Maine between municipalities and other governmental bodies and labor unions. 

It is apparent that the bill will not have an easy time passing at the Legislature. A work session scheduled for January 15, 2020, was cancelled. All indications are that Governor Mills would veto the bill if it somehow passed both the House and Senate. 

To be blunt, this legislation would be devastating for municipalities and would have a detrimental effect on employee relations. You are urged to let your Legislative representatives know that you as a municipality or other public sector employer are opposed to this potential legislation.

An Introduction to Green Bonds

For starters, “green bonds” are not issued pursuant to any governmental program like, for example, the federal program for Qualified School Construction Bonds. Rather, the issuer of a bond requests a non-governmental organization to evaluate (there is a fee involved) the project being financed to determine if those bonds are eligible for a green bond designation. 

Green bonds are attracting investors with an appetite or need to invest in projects that have positive environmental effects. There is no subsidy or credit associated with a green bond designation, but there is potentially a marketing advantage that could lead to lower costs – in particular, lower interest costs. 

Over time, the process for attaining green bond status is becoming more uniform. For example, Climate Bonds Initiative (www.climatebonds.net) and S&P Global Ratings (www.spglobal.com) have programs for evaluating eco-friendly projects. Just last year, the City of Portland obtained a green evaluation score from S&P Global Ratings in connection with refunding certain of its 2010 bonds. The bonds were issued in connection with a U.S. Green Building Council Leadership in Energy and Environmental Design (“LEED”) Gold Certified Jetport terminal expansion project. While the “green bond” designation was related to the LEED certification, S&P Global Ratings evaluated and scored the environmental benefits. 

Next time your municipality is considering financing or refinancing an eco-friendly project, including a green construction, transportation, water, waste, or energy-efficient project, it might be worthwhile investigating the benefits of a green bond designation.