Adult Use Marijuana Rules Passed

The Maine Office of Marijuana Policy has adopted final rules regarding the cultivation, manufacture, sale and use of adult use marijuana in Maine. These rules will take effect on December 6, 2019. Municipalities that have been holding off on passing marijuana-related ordinances while awaiting the adult use rules may find this a good time to restart the process. However, the law remains that adult use marijuana facilities may not locate in a community that has not “opted in” to adult use marijuana by passing a town meeting article or ordinance to allow them in some or all areas of towns. For facilities looking to locate in towns that have already opted in, applications for state licenses will be available starting December 5, 2019.

Here is a link to the adopted rules.

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.

Definition of Subdivision

Condominium and other multi-unit projects located within a single structure often pose challenges to municipal planning staff and developers alike, particularly as to whether a certain project should be reviewed under the municipal subdivision ordinance, municipal site plan ordinance, or both. Prior Legislative committee amendments to 30-A M.R.S.A. § 4401 and § 4402 were intended to broaden exemptions to municipal subdivision review by exempting projects reviewed under municipal site plan ordinances. After adoption, however, the Revisors Office included language in the printed bill that review must be in accordance with Title 38, section 488, subsection 19 or Title 38, section § 489-A; i.e., DEP Site Location of Development Act. 30-A M.R.S.A. § 4402, sub-§ 6. Instead of broadening the exemption for certain projects, as the Legislature had intended, the final printed language of the bill limited the exemption to only those projects reviewed under Site Law.

These two statutes where again amended on May 30, 2019, by Legislative Document 550, which will take effect on September 19, 2019, and will be applied retroactively to June 30, 2018. The 2019 amendments delete the reference to DEP Site Law and instead define municipal site plan review as “review under a municipal ordinance that sets forth a process for determining whether a development meets certain specified criteria, which must include criteria regarding stormwater management, sewage disposal, water supply, and vehicular access, and which may include criteria regarding other environmental effects, layout, scale, appearance, and safety” (30-A M.R.S.A. § 4402, sub-§ 6).

The new law also states that the municipality’s reviewing authority shall determine whether a municipal site plan review ordinance meets the requirements previously delineated. It also changes the dates for when definitions of “subdivision” in municipal ordinances must comply with the definition of “subdivision” in state law. The prior statute required municipal ordinances to comply with the state law’s definition of “subdivision” by January 1, 2019. 30-A M.R.S.A. § 4401, sub-§ 4, ¶ H–2. Legislative Document 550 changed this date to January 1, 2021 (S.P. 172, L.D. 550, 129th Leg., 1st Reg. Sess. [Me. 2019]). The prior statute also required municipalities to file their conflicting definitions at the country registry of deeds by June 30, 2018, in order for the definition to remain valid through the grace period ending on January 1, 2019 (30-A M.R.S.A. § 4401, sub-§ 4, ¶ H–2). A municipality now “must file its conflicting definition at the county registry of deeds by June 30, 2020, for the definition to remain valid for the grace period ending January 1, 2021” (S.P. 172, L.D. 550, 129th Leg., 1st Reg. Sess. [Me. 2019]).

Municipalities Await Guidance as to How to Apply New Tax Exemptions for Wind and Solar

The 129th Legislature passed several laws to promote renewable energy in Maine. One of these was LD 1430, enacted as PL 440, which exempts wind and solar energy property from assessment. The exemption applies to both real and personal property, whether used residentially or commercially. It does not apply to “grid-scale” projects that sell energy to the grid for profit. It will apply starting with the April 1, 2020, assessment date.

While the exemption may seem simple on the surface, the law contains some ambiguities that are making it a bit difficult for assessors to plan ahead. The biggest question pertains to renewable energy facilities that are fixtures to real property. For instance, a piece of real estate may be benefitted by solar panels, but the municipality may have not specifically accounted for the value of those panels in making the overall valuation for the property. PL 440 will allow taxpayers to file a “report” with the assessor(s) by April 1 of the relevant tax year “identifying” the property for which exemption is claimed. The law is unclear as to whether it would require the assessor to reduce the assessment by the claimed value of the solar panels even if those panels were not considered in making the assessment.

The new law directs the Department of Revenue Services to provide guidance by December 1, 2019, regarding the methods by which renewable energy facilities should be valued. Although the law does not specifically mandate municipalities to assess renewable energy facilities, the intent appears to be that municipalities will value the facilities (with guidance from Revenue Services), and then that value will then be subject to exemption. For the purposes of the 2019-2020 tax year, municipalities are still free to assess solar and wind facilities according to their standalone value or to their impact on the overall property value. The Cumberland County Superior Court recently upheld the Town of Brunswick’s practice of applying per-panel assessment for solar facilities, finding that the panels did have inherent value and that the taxpayers had not proven otherwise.

A New Twist in the Road for Road Disclosures

While intended to make real estate transfers more opaque, 33 MRSA section 193 likely will result in more demands upon municipal public work’s directors, CEOs, assessors, and planners.

On August 1, 2018, 33 MRSA § 193 went into effect, requiring sellers of nonresidential property to disclose “information identifying any abandoned or discontinued town ways, any public easements and any private roads located on or abutting the property, if known by the seller” along with “information identifying the party or parties responsible for maintenance of any abandoned or discontinued town way, public easement or private road on or abutting the property identified pursuant to subsection 1, including any responsible road association, if known by the seller” (Me. Stat. tit. 33, §193). It was subsequently repealed by Legislative Document 1151 on March 7, 2019. 

On September 19, 2019, a new statute, 33 MRSA §193, sub–§3, will take effect, requiring sellers of nonresidential property to disclose information “describing the means of accessing the property by a public way” and “any means other than a public way, in which case the seller shall disclose information about who is responsible for maintenance of the means of access, including any responsible road association, if known by the seller” (H.P. 622, 129th Leg., 1st Reg. Sess. [Me. 2019]).

While the prior act required disclosures of known information about abandoned or discontinued town ways, public easements, private roads, and their maintenance, the new rule requires sellers to disclose information about all means of accessing the property, but only requires disclosure of who is responsible for maintenance for means other than a public way. Thus, the disclosure requirements are no longer limited to abandoned or discontinued ways, public easements, and private roads. Rather, sellers must disclose “any means” of accessing the property.

Since the answers to these questions are often unclear, it is likely that municipalities will field more phone calls and inquiries about the status of roads.

Notice Under Maine Tort Claims Act Increases to One Year

A new law passed by the Maine Legislature goes into effect on January 1, 2020. Under the Maine Tort Claims Act, Title 14. § 8101, et seq., within 365 days after any tort claims or cause of action arising under the Maine Tort Claims Act, a claimant must send a written notice to the municipality. Formerly, notice had to be filed within 180 days. The notice must contain the name and address of the claimant and claimant’s attorney, if any; a precise statement of the basis for the claim and the circumstances; identifying information about the governmental employee involved; and a statement regarding the extent and nature of injury and monetary damages. There is an exception if the claimant is able to show good cause why the notice could not reasonably have been filed within the 365-day limit. 

The Maine Tort Claims Act provides immunity to municipalities except in specific situations outlined in the statute. The areas for which a municipality is responsible include ownership, maintenance or use of vehicles; construction, operation or maintenance of buildings or the appurtenances to any public buildings; the discharge of pollutants; and, during the active performance of construction, street cleaning or repair operations on a road. There are specific exceptions under the Act, depending on the circumstances.

While formerly a municipality was in the clear if a notice was not received within 180 days, now it must wait a full year.

Maine Bicentennial Grants Available to Municipalities

In preparation for Maine’s celebration of the 2020 Bicentennial (I am sure everyone remembers that we became a State in 1820 because of the Missouri Compromise), the State is offering grants to state and local governments, including municipalities, nonprofit organizations, schools and other organizations in partnership with the above. The Maine Bicentennial Commission will be distributing $500,000 as part of this program, with up to 10% of funds set aside for small grants of $500 or less, up to one large grant per county of $10,000, with the remaining funds used to fund grant applications in amounts that range between $500 and $10,000 until all funds are dispersed.

The grants will fund public programs such as lectures, storytelling workshops, discussion groups, and other programs to provide context to the Bicentennial Commemoration and will sponsor events such as parades, fairs and festivals, exhibitions, history projects, curriculum development for schools, student projects and activities, preservation projects and arts performances. Priority will be given to projects that are directly tied to the commemoration of Maine’s Bicentennial, are supported through local matching funds or in-kind contributions, are designed to reach and engage as many members of the diverse communities as are possible, create lasting resources, and involve multiple community partners such as schools. The following four themes are strongly encouraged: 

• Living in Maine 
• The Business of Maine 
• Maine Leads 
• The Maine Character 

Grant applications must be submitted to the Maine Bicentennial Commission, in care of the Maine Arts Commission, to be reviewed by a panel of representatives from the Maine Cultural Affairs Council and from practicing educators. There are three cycles, with application deadlines of September 21, 2019; February 1, 2020; and June 1, 2020. The screening committee will make awards based on the priorities and a distribution geographically across the state. Commemoration activities must involve a public component for participation in the grants and recipients must upload a photo of activities to the Bicentennial Facebook page and complete a brief summarizing of how funds were expended. The money must be expended by March 30, 2021.