2014 Municipal Law Update
H. Bernard Waugh, Jr.
Gardner Fulton & Waugh, P.L.L.C.
78 Bank St, Lebanon NH 03766-1727
(603) 448-2221
BWaugh@townandcitylaw.com
October, 2014
Part I – New Statutes.
NOTE: These summaries are meant as "red flags" only – to highlight new laws that municipalities truly need to know about, or may want to take action on. For a more complete list of 2014 Session Laws affecting municipalities, consult the N.H. Municipal Association’s Legislative Bulletin.
A. Land Use
and Environment
New Notice Requirements For Zoning Amendment Hearings. Ch. 161 (HB 1210) imposes new individual notice requirements for planning board hearings on proposed zoning amendments in addition to the existing requirement of publishing notice in a newspaper and posting notice in two public places, as follows:
Notice must now also be given by first-class mail: (1) to the owners of all affected properties if an amendment would change a zoning district boundary and the change would affect 100 or fewer properties; and (2) to the owner of each property in a zoning district if an amendment would change minimum lot sizes or permitted uses in a zoning district that includes 100 or fewer properties.
In addition, the municipality must give individual notice of all zoning amendment hearings by first-class mail or electronically to any property owner who has submitted a “standing” request for such notices. The notices must “describ[e], to the greatest extent practicable and in easily understood language, the proposed changes to the zoning ordinance, the areas affected, and any other information calculated to improve public understanding of the proposal.” [If the Board has drafted a clear and complete “topical description” for purposes of RSA 675:3, that should meet this standard.]
Oddly, the new law says that petitioned zoning amendments are not subject to these new notice-by-mail requirements.
COMMENTS: Among the issues raised, but not answered – and likely to be litigated – are: (a) Does an alteration in, say, how a permitted use is defined count as a change in the permitted use itself for notice purposes? (b) How does a Town prove it sent the notices? (c) Is a zoning amendment automatically invalid if less than 100% of the affected owners were notified? (d) If so, how long does it remain subject to challenge? (Hopefully no more than 5 years, see RSA 31:126). (e) Given that property rights can be just as affected by petitioned amendments as by planning board proposals, is there a potential Equal Protection challenge to the different treatment? (f) Can the planning board relieve itself of the new notice burden by persuading its friends to submit relevant petitions? [Oh come now, nobody would actually do that….would they?]
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Plea-By-Mail For Land Use Offenses. Ch. 77 (HB 347) allows the local ordinance citation (plea-by-mail) procedure in RSA 31:39-d to be used for violations of land use ordinances and regulations (previously excluded from that statute). Also, a violator who fails to respond to such a citation will be subject to “subsequent offence” (higher) penalties under RSA 676:17. Violations of the state building code remain excluded from RSA 31:39-d.
COMMENT: It’s unclear how the plea-by-mail system in RSA 31:39-d is meant to jibe with the existing system of Local Land Use Citation plea-by-mail found in RSA 676:17-b. [Ahem! – did the Legislature forget that other even statute existed?] I’d suggest the legally ‘safest’ way for towns, if you want to utilize plea-by-mail for land use violations, is to devise a system that meets the minimum requirements of both statutes.
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Changed Deadlines For Zoning Hearings In SB 2 Towns. Ch. 7 (HB 1124) eliminates the separate deadline in RSA 40:13 for final hearings on the adoption of zoning ordinances or amendments in official ballot referendum (‘SB 2’) towns. Instead, the ‘normal’ deadline established for all towns in RSA 675:3 (fifth Tuesday before the date voting will occur) will apply. Notice, however, that the hearings must still be held in time to allow the text of any proposed zoning ordinance or amendment to be included in the warrant, which, in an SB 2 town, must be posted by the last Monday in January (or February, or March, if the town has its meeting in April or May).
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Option For Governing Body To Approve New ‘Streets.’ Ch. 125 (HB 1371) allows a town or city – by vote of its legislative body (town meeting in towns) – to transfer to the governing body (selectmen in towns) the authority to approve plans showing the extent to which and the manner in which streets within subdivisions will be graded and improved. In the absence of such a transfer, ‘street’ approval authority remains with the planning board.
CAUTION! The word ‘street’ in the planning & zoning laws does not mean the same as ‘public highway.’ Planning boards often approve subdivision ‘streets’ which no one (at the time) intends to be ever taken over as town highways. And case law has made clear that planning board ‘street’ approval does not obligate a town to later accept such a ‘street’ as a public highway (see Beck v. Town of Auburn, 121 N.H. 996 (1981)). I can’t help having doubts whether the Beck rule will still apply in a town where the Selectmen themselves approve the ‘street,’ rather than the planning board. Towns should tread lightly!
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Private Funding For Sewer Construction. Ch. 4 (SB 223) allows a city or town, if first authorized by a vote of its legislative body, to enter into contracts under which a private party pays for the design and construction of a new public sewer system, or an addition or modification to an existing system, and under which the municipality repays the private entity using user fees and other charges received from those benefitting from the project. Charges collected from those served by the sewer project must be accounted for separately, and no repayment to the private entity may be made from funds other than the separate account. The contract must state that no municipal general funds may be appropriated for the repayment obligations under the contract.
HMM?? I do not, off-hand, see anything new here, which municipalities couldn’t already do under the “Revenue Bond” statute (RSA 33-B – which specifically contemplates sewer facilities paid for through user fees). It again raises the question of a function covered by two overlapping statutes – must they both be followed?
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B. Municipal Administration, Finance and Taxation Laws.
Management of Trust Funds & Capital Reserve Funds; Investment Authority of Library Trustees. Ch. 32 (HB 287) clarifies that local trustees of trust funds may maintain their records in electronic format. It also requires their annual reports be filed with the Department of Revenue Administration and the governing body of the city or town, in addition to being filed with the Attorney General. The new law also allows the local governing body to authorize the trustees to charge brokerage and management investment fees directly against capital reserve funds, rather than budgeting separately for those fees (similar to the manner in which trust fund fees are handled). Finally, the bill authorizes library trustees to invest under the "prudent investor" rule pursuant to RSA 31:25-d.
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Alternate Trustees of Trust Funds. Ch. 70 (SB 216) authorizes the appointment of no more than two alternate trustees of trust funds. The alternates are to be appointed by the local governing body upon recommendation by the sitting trustees, and are to be appointed for one-year terms.
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Use Of Funds From Cemetery Sales. Ch. 71 (SB 219) adds a new section to RSA 289 authorizing the local legislative body to vote whether funds received from the sale of cemetery lots will be deposited in the general fund as a sale of town property or deposited with the trustees of trust funds for the maintenance of cemeteries under RSA 31:19-a.
[Hmm! In which town was this issue “undead” enough that the Legislature needed to step in? – ♫♫ Ain’t no grave gonna hold me down! ♫]
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Authority To Abate Taxes Without Application. Ch. 175 (HB1196) amends several sections of RSA 76 and RSA 81 to clarify the authority of selectmen or assessors to abate property taxes assessed by them or their predecessors for good cause shown. The law reverses a 2013 Board of Tax and Land Appeals decision which ruled that a timely application by the taxpayer is a prerequisite for all abatements.
[NOTE: A timely abatement application is still required before appealing a municipality’s failure to abate. Thus a town’s refusal to abate prior years’ taxes won’t normally be subject to challenge (unless, say, there’s been blatant discrimination). Retroactive abatement can occasionally be a useful tool – for example in cases of true poverty and inability to pay, if the alternative is that the person loses his/her home, and becomes a burden on the welfare budget.]
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Lease-Purchase of Buildings Related to Equipment. Ch. 60 (HB 1245) says that building or facility improvements related to the installation, purpose, or operation of leased equipment are deemed to constitute equipment and may be financed through lease-purchase agreements under RSA 33:7-e.
[I wish I knew the history of this bill. Is there a town out there that needs to lease-purchase a garage? Maybe the idea is that ‘equipment’ doesn’t somehow cease to be ‘equipment’ for purposes of RSA 33:7-e merely because it’s stationary enough to become a real estate ‘fixture.’]
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Recreational Vehicles Under The Property Tax. Ch. 228 (SB333) says that a recreational vehicle is exempt from the property tax if it is less than 8'6" wide, is registered as a motor vehicle, and is located at a recreational campground or camping park. The campground owner must provide local assessing officials annually (by April 1) with the name and address of each owner of a recreation vehicle at the campground and identify which vehicles meet the criteria for exemption. A campground owner is not liable for payment of any taxes imposed on an RV located at the campground unless the campground owner also owns the RV.
[UNANSWERED QUESTIONS: What about RVs that aren’t in ‘campgrounds’? Will those be treated under existing case law (which generally says that if they’ve become ‘fixtures’ – such as by having foundations, or being connected to utilities – then they’re taxable)? If so, does this create an Equal Protection problem?]
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Adopting or Amending Municipal Charters. Ch. 292 (HB 422) makes several changes to the process for adopting or changing a city or town charter. Among other things, this new law does the following:
(1) Reduces the number of signatures required to place a charter question on the ballot in a town that has not already adopted a charter;
(2) Eliminates the need for a petitioners’ committee to place a question about electing a charter commission on the ballot;
(3) Allows a charter commission to continue for a second year if it does not complete its work in the first year;
(4) Clarifies the difference between a ‘revision’ and an ‘amendment’;
[A ‘revision’ is now defined as a change from one of 10 listed forms of local government to another. Any change which isn’t a ‘revision’ is now an ‘amendment.’ The new law thus appears to do away with the ‘single-subject’ rule established by case law for amendments.]
(5) Allows a charter revision commission to propose charter ‘amendments’ if it determines that a ‘revision’ is not needed; and
(6) Increases the majority required to approve a new charter or a charter ‘revision’ to 60 percent. The new law will apply to any charter process that begins after the effective date.
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C. Elections and Voting.
Filing For Incompatible Local Offices Prohibited. Ch. 99 (HB 1320) prohibits a person from filing declarations of candidacy for any two or more elected local offices that are incompatible under RSA 669:7.
Up to now, one was only prohibited from serving in both offices (hence one could conceivably run for incompatible offices, and if elected to both, then choose which to serve in). Note: The new law does not apply to write-in candidates – thus it’s still possible to be elected to two incompatible offices. The new law also doesn’t apply to someone who’s already serving in one of two incompatible offices, and wants to run for the other. In either event, if the two offices are incompatible, current law holds that one person cannot take the oath of office for both offices.
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Voter ID Challenger Must Now State Reason In Writing. Ch. 131 (SB 206) says that when a challenge is issued to a form of voter identification approved by an election official, or to personal verification of a voter’s identity by an election official, the person issuing the challenge must state the reason for the objection in writing and must give the specific source of the information or knowledge upon which the challenge is based. (The upshot of such a challenge is that the voter is required to fill out a challenged voter affidavit. Note that some forms of ID, such as driver’s license or passport, are not subject to the ID challenge procedure at all.)
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Affidavit As Method For Same-Day Registrant to Prove Qualifications. Ch. 260 (HB466) allows a voter who is registering to vote at the polling place on the date of a state election (by contrast with a local election), to prove his or her qualifications by swearing to a statement on the voter registration form.
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Spouses Of Those In Service To Their Country Don’t Lose Domicile. Ch. 104 (HB466) clarifies that, if a person is temporarily absent from his/her domicile by reason of his/her spouse being employed in the service of the United States, this doesn’t result in the loss of her/his domicile.
SO… exactly why couldn’t common sense have taken care of this problem? Can you truly envision a town clerk who would allow the person serving his/her country to stay on the checklist, but not the spouse? (Probably not, but municipal clerks are exactly the folks who want the law to be letter-perfect on points like this.)
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Part II – The Courts.
These summaries are digested from NH Supreme Court advance sheets, without any additional background knowledge. Pages and citations are omitted. Procedural aspects not crucial to the central holding are left out, as are factual issues not germane to a grasp of evolving legal principles. These are “red flags” only. If your interest is grabbed, read the whole thing! Comments here are meant as purely generic, and should not be construed to be aimed at any pending controversy, or as a substitute for legal advice.
NOTE: This is the first time in the 28 years I’ve been compiling these summaries that there was not one published planning or zoning board appeal decision issued by the N.H. Supreme Court. I suppose it was the delayed arrival, at the Court, of the development hiatus engendered by the Great Recession.
A. Real Estate Case.
JURISDICTION OVER TITLE MATTERS Lies Exclusively With Superior Court. Friedline v. Roe (May 16, 2014).
Eugene Roe had lived in the same house since 1959. But the property was now owned by his son Zebadiah and Friedline. Zebadiah had given Friedline a power of attorney to act as his agent. Friedline served Eugene with an eviction notice.
During the eviction proceeding in the district division, Eugene claimed that a constructive trust should be imposed, because his 2004 conveyance to Zebadiah had been with the understanding that he could live there for life. The district division held that any life estate was unenforceable – not having been reduced to writing – and issued a writ of possession to Friedline.
The Supreme Court (Justice Bassett) held that the district division had no authority to make such a ruling. A claim of title – even one not based on a writing – can only be heard in superior court. The eviction proceeding isn’t halted automatically, but if the defendant promises to file in superior court, and posts whatever bond the district division requires, then the case is transferred (RSA 540:17).
Who Must Sign Eviction Notice? Eugene had also challenged the eviction notice, because it was not signed by his son (a co-owner). The Court said it’s true one co-owner cannot issue a valid eviction notice without consent of all owners. But that doesn’t mean all owners must sign the notice. Here Friedline had authority, under the power of attorney, to sign on Zebadiah’s behalf.
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B. Ordinance Preemption.
SCRAP METAL DEALERS: Local Record-Keeping and Fee Req’ts Not Preempted. Prolerized N.Eng Co. v. City of Manchester (Aug. 28, 2014).
To help combat the problem of scrap metal theft, Manchester passed an ordinance imposing dealer record-keeping requirements stricter than those under RSA 322 – including the keeping of records in electronic form, transferring them to a 3rd party designated by the City, and the charging of a 50-cent fee per transaction. Prolerized challenged the ordinance as preempted by state law.
Justice Bassett explained the several forms of preemption: (a) express preemption, where State law clearly states local regulation is prohibited; (b) “field” preemption, where the state scheme is so comprehensive as to imply an intent for the State to occupy the entire field; (c) Preemption implied by a direct conflict between the State law and local ordinance; and (d) Preemption implied because the local ordinance frustrates the purposes of the State law.
Based on a close analysis, the Court found none of those applied here. On the contrary the RSA 322 licensing law delegates control to municipalities, including the authority to enact rules and regulations.
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C. Governmental Liability.
1. MUNICIPALITIES IMMUNE From Personal Injury Liability, Absent Any Nexus To Vehicle or Premises. Dichiara v. Sanborn Reg. Sch. Dist., 165 N.H. 694 (November 8, 2013).
Dichiara, a student, was injured from a collision with another student during basketball tryouts. He sued the coach and the school district.
RSA 507-B was enacted in the wake of the general abolition of common-law municipal immunity in Merrill v. Manchester, 114 N.H. 722 (1974). Section 5 establishes a general rule of municipal immunity, unless excepted elsewhere. Section 2 (the main exception) then permits recovery in “an action to recover for bodily injury, personal injury, or property damage caused by its fault…, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.” Here both sides agreed there was no nexus between the injury and any motor vehicle or premises.
The Court (Justice Hicks) held that the statute means what it says. Dichiara argued that such an interpretation would lead to the “absurd result” of municipalities being immune for all “personal injury” even though that term is included in Section 2. The Court disagreed, pointing out some examples of personal injury for which municipalities would not be immune.
[NOTE: No constitutional claim was raised in the case, hence none was discussed by the Court. But see the Huckins case, below.]
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2. TORT OF ‘NEGLIGENT INVESTIGATION’ Rejected By The Court. Lahm v. Farrington (March 14, 2014).
Lahm was arrested by a Farrington, a Tilton police officer, and spent the weekend in jail on a charge of sexual assault. He hired his own investigators who quickly found evidence that the ‘victim’ – upon whose statements a justice had found probable cause to arrest – had lied. Lahm sued Farrington and the Town, claiming they could easily have discovered the same evidence prior to arresting him. Lahm did not dispute that probable cause had existed. But he claimed the police owed more – a duty of “reasonable investigation.”
The Court (Justice Hicks) disagreed, following courts around the US which have rejected such a duty for negligence law purposes. Citing the recent case of Everitt v. Gen. Elec. Co., 156 N.H. 202 (holding police immune for discretionary decisions within their scope of authority, unless wanton or reckless), the Court said the public interest in protecting officers from fear of liability extends even to situations where the decisions are not of the ‘split-second’ variety.
“The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating these often opposing interests”
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3. MUNICIPAL IMMUNITY: RSA 507-B:2 And :5 Are Constitutional As Applied To Intentional Torts. Huckins v. McSweeney (April 11, 2014).
Huckins claimed McSweeney (a Sanbornton police officer) had fired a stun gun at him multiple times. He sued both McSweeney and the Town for civil battery (an intentional tort). RSA 507-B:2 and :5 (discussed above under the Dichiarra case) permit suits against municipal employees for intentional torts, but protect the Town itself against any claim based on respondeat superior. Huckins challenged that prohibition as unconstitutional – both on its face and as applied – under Part I, Art. 14 of the N.H. Constitution (Right to a Remedy).
The Court (Justice Conboy) addressed only the as-applied claim – reasoning that if the statutes are constitutional as-applied, they logically cannot be facially unconstitutional.
The Court then said that a right to a remedy is not a “fundamental right” for constitutional purposes, and that the statutes as applied do not violate Part I, Art. 14 because they don’t deprive Huckins of a claim against McSweeney personally, and that such a suit provides a constitutionally-adequate remedy (citing Ocasio v. Fed. Express Corp., 162 N.H. 436 (2011)).
McSweeney also claimed a violation of Equal Protection, in that his available remedies were different from those available to someone injured by a State employee. The Court, however, construed RSA 507-B and RSA 541-B (State immunity) as providing exactly the same remedies in these circumstances.
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4. ‘FIREFIGHTER’S RULE’ Prevents Suit By Police Officer Against Attacker’s Employer. Bouter v. Cohen Camps (June 20, 2014).
Michael Feld, a camp counselor employed by the Camp, had become erratic and ‘manic’ in his behavior He had broken into a neighbor’s home, and when Officer Bouter tried to arrest him (as he ran naked down the road), he attacked and injured her.
The Court (Justice Conboy) held that a suit against the Camp was barred by the “Firefighter’s Rule” (RSA 507:8-h), which bars a claim by a public officer when the officer’s injuries are caused by the same conduct which required the officer’s official presence, in the absence of reckless and intentional conduct. The Court pointed out that there was no allegation that the Camp had acted recklessly or intentionally (on the contrary, the claim against the Camp was based on negligent hiring and negligent training).
Bouter argued that her suit against the Camp should not be barred, because it was Feld’s conduct, rather than the Camp’s, which required her official presence. But that distinction is not relevant under the statute – rather, the question is whether the injury arose from the risk that required the officer’s presence. If it does, the statute bars all suits arising from that injury.
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D. Constitutional Issues.
1. FREE SPEECH: ‘Offensive To Good Taste’ Standard For Vanity Plates Is Unconstitutionally Vague. Montenegro v. N.H. Dept. of Motor Vehicles (May 7, 2014).
David Montenegro applied for vanity plates reading “COPSLIE.” DMV rejected the request, based on a regulation prohibiting wording “…which a reasonable person would find offensive to good taste.” The Court (Justice Conboy) held that the regulation was unconstitutionally vague.
The Court said it didn’t matter what kind of speech ‘forum’ vanity plates are, since the vagueness doctrine applies independently of forum analysis. The Court said:
“The vagueness doctrine, originally a due process doctrine, applies when the statutory language is unclear, and is concerned with notice to the potential wrongdoer and prevention of arbitrary or discriminatory enforcement….Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked…. Free public expression cannot be burdened with governmental predictions or assessments of what a discrete populace will think about good or bad ‘taste.’”
[While this case involved State regulations, the same principle applies to local ordinances. Indeed, given that some local ordinances are drafted by, for example, petitioners at town meeting, I suspect vagueness problems may be even more of a risk at the local level.]
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2. PARK CURFEW: Upheld Against Free Speech Challenge By ‘Occupy New Hampshire.’ State v. Bailey (August 8, 2014).
Manchester has a curfew prohibiting occupancy of its public parks between 11 p.m. and 7 a.m. The ‘Occupy N.H.’ defendants had sought to camp in a park around-the-clock until their demands were met. When arrested, they challenged the curfew on Free Speech grounds (N.H. Const., Pt.1 Art. 22). The Court upheld the curfew.
The Court (Justice Conboy) assumed – without deciding – that the occupation constituted ‘speech,’ and that the park was a ‘traditional public forum.’ Even so, a reasonable time, place and manner restriction on speech which is content-neutral will be upheld as long as it is narrowly tailored to serve a ‘significant’ governmental interest, and as long as alternative channels of communication are left open. Here the Court said the alternative channel was the use of the park during the hours it was open.
The defendants agreed the interest in preserving the parks for the use of the public, and protecting them from overuse and unsanitary conditions, constitutes a ‘significant’ governmental interest. They argued, however, that they themselves had been careful not to interfere with other users, and to keep the park in a condition cleaner than they found it. They argued the requirement of “narrow tailoring” thus required them to be granted an exception to the curfew. The Court’s response goes to the fundamental nature of law itself – the axiom that any exception must be capable of being administered impartially to all who are similarly situated:
“The defendants’ argument suggests that the city was required to make an exception to an otherwise legitimate regulation because they were thoughtful and considerate in their use of the park….[But] determining, on an ad hoc basis, whether a specific individual our group poses a threat to the city’s interests… [would] create a risk of granting exceptions to favored speakers….
The inquiry as to whether Manchester’s park curfew ordinance is constitutional must involve not only the defendants, but all other groups of individuals that would be entitled to use the park if the ordinance were not enforced with respect to the defendants.”
COMMENT: Hurrah! These defendants were basically asserting a “situation ethics” defense – viz., “Who are we really hurting by doing this?” (The same question often asked by someone who’s about to lie, cheat or steal.)
To put it another way, the bedrock concept of impartiality entails more than just the ‘golden rule’ (imagining the shoe on the other foot). It also entails consideration of the cumulative impact if everybody similarly situated were free to do the same. See, e.g., Bacon v. Town of Enfield, 150 N.H. 468 (2004) (‘Spirit of the Ordinance’ test – one of the 5 tests for a variance – allows the ZBA to consider the potential cumulative impact if multiple similar variances were granted.)
Thus the morally-relevant (and as Justice Conboy observed, constitutionally-relevant) question is not “Who am I really hurting by doing this?” Instead it’s “What if everybody were allowed to do this under these circumstances?” It sometimes astounds me how many people seem to be blind to this public “cumulative impact” aspect of both moral rules and rules of law.
[Please pardon my digression. As a college philosophy major, I can’t help getting excited when a court opinion provides a lesson in ethical theory!
By the way, nothing in this comment should be construed as opposition to the overall goals of the “Occupy” movement.]
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3. U.S. SUPREME CT: Prayer At Legislative/Governing Body Meetings Does Not Violate Establishment Clause. Town of Greece, NY v. Galloway, ___ U.S. ___, (May 5, 2014).
By contrast to, say, prayer at high school graduations (Lee v. Weisman, 505 U.S. 577), the Supreme Court held that opening prayers at meetings of town governing bodies are not per se unconstitutional – although it’s possible they could become so, if the totality of the circumstances pointed to an intent to coerce or proselytize, or to disparage a specific faith or belief. But the fact that some attendees may be offended does not, by itself, count as evidence of coercion.
If the town invites local clergy to lead such prayers, such an invitation cannot be discriminatory toward any faith or belief. However, if local clergy are predominately of one type of faith (e.g. Christian), the Constitution does not require reaching out beyond the local area to seek clergy of other faiths.
The Supreme Court rejected the notion that the Constitution requires such prayers to be “non-sectarian.” The Court doubted there could be a consensus on what that means, and any attempt by the courts to refine it would result in courts regulating the content of prayers, which itself would offend the Establishment Clause.
NEW HAMPSHIRE LAW does not appear to be contrary to the result in Town of Greece, the most recent N.H. case being Lincoln v. Page, 109 N.H. 30 (1968).
By contrast, in Vermont, in the case of Hackett v. Town of Franklin, in a decision of May 29, 2012, a superior court judge ruled that prayer at town meetings violates Article 3 of the Vermont constitution. Though the case was not appealed, Vermont towns have generally accepted it as the law in Vermont.
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E. Property Tax Cases.
1. CURRENT USE: Town Has Authority To Remove From Current Use Land Which Was Mistakenly Enrolled. Appeal of Town of Charlestown (July 11, 2014).
Charlestown discovered three parcels which had been enrolled in Current Use even though they were being used as part of a hydroelectric project, and did not qualify.
The Town applied to the Board of Tax and Land Appeals under RSA 79-A:2, II to remove the parcels from Current Use. The BTLA refused the request, holding that the Town itself could remove the parcels. The Town appealed, arguing that it was left without a remedy, because RSA 79-A:7, I‑a says that land which is classified as open space land must be assessed at current use values until a change in use occurs.
The Supreme Court, in essence, ‘reinterpreted’ the statute, saying that although it prohibits the land use change tax from being assessed absent a change of use, it does not overtly prohibit reclassification due to mistake.
[Note that the Town made no attempt to try to apply the reclassification retroactively.]
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2. UTILITY TAX ON USE OF RIGHT-OF-WAY: Omission To Tax All ROW Occupants Doesn’t Violate Equal Protection, Absent Conscious, Intentional Discrimination. Fairpoint Comm’s NNE v. City of Concord (August 29, 2014).
Fairpoint challenged the City’s tax upon the use of City rights-of-way, because the City hadn’t charged the same tax to Comcast (believing at the time that its franchise agreement superseded the tax), and because some other companies had escaped taxation due to the City’s lack of knowledge that they were even using its right-of-way. Fairpoint claimed these mistakes constituted an Equal Protection violation, thus voiding the tax against Fairpoint. The trial court (MacNamara, J.) had agreed, based on the so-called “Rochester III” decision (156 N.H. 624 (2007)).
The Supreme Court reversed. Since Fairpoint’s argument entailed the premise that the law required taxation of all occupants, their challenge was plainly not to the tax scheme on its face, but rather was based upon selective enforcement. However it is established law that selective enforcement does not violate Equal Protection unless the discrimination is conscious and intentional (citing Anderson v. Motorsports Holdings, 155 N.H. 491 (2007)).
Justice Hicks pointed out that under Fairpoint’s reasoning (i.e. that a mere mistake violates Equal Protection), a town’s erroneous failure to tax even one taxpayer would give all others an Equal Protection claim. He referred to this as an “absurd result.”
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3. EFFECT OF P.I.L.O.T. AGREEMENTS ON EQUALIZATION. Appeal of Coos County Commissioners (June 18, 2014).
The County had entered into a PILOT (payment in lieu of taxes) agreement for those portions of the Granite Reliable Power wind farm located in the unincorporated places of Dixville and Millsfield (populations 1 and 25 respectively). Because the utility appraisal performed by DRA (Dept. of Revenue Administration) resulted in much higher valuations for the wind farm than those utilized for the PILOT, the result was very high comparative valuations for these two places for purpose of equalization throughout the County, hence imposing a very high share of the county tax upon landowners in those two places who were not subject to the PILOT.
The County argued, in essence, that DRA should have used the PILOT figures when calculating equalization within the County. In a long and complex opinion, the Court disagreed, holding that DRA had followed the applicable statutes.
NEW STATUTE. Undoubtedly in response to this litigation, the Legislature enacted Chapter 277 of 2014 (HB 1549). In the case of renewable generation facilities which are subject to a PILOT under RSA 72:74, the new law requires the DRA to use the PILOT payments as the basis of equalization, rather than the actual market value of such properties. (That was already the rule with respect to other types of PILOT agreements.)
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F. Municipal Employment Cases.
1. BARGAINING UNITS Remain Certified, Even If Membership Falls Below Ten. Appeal of Town of Brookline (April 18, 2014).
Under RSA 273-A:8, I, the Public Employee Labor Relations Board cannot certify a bargaining unit of fewer than 10 employees with a community of interest. Here the bargaining unit – over 10 when certified – had dropped below 10. The Town of Brookline unilaterally decided it no longer had to bargain. The PELRB found this was an unfair labor practice, and the Court affirmed.
Brookline argued that because the unit had fallen below 10 members, the PELRB had no jurisdiction even to make such a finding. The Court (Justice Lynn) disagreed. A bargaining unit remains certified (and must be bargained with) until and unless the Town applies to decertify the unit.
The statute doesn’t sent forth the criteria for decertification, hence the Court left that issue to the PELRB. But…the court said the fact that a unit falls below 10 should not automatically justify decertification. “Applying the ten-employee requirement rigidly in such circumstances would make the obligation to bargain an ‘on-again off-again’ proposition that would frustrate the PELRA’s goal of harmonious labor relations.”
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2. TOWN’S UNILATERAL SETTING OF WAGES For New Positions Covered By A Bargaining Unit Is Unfair Labor Practice. Appeal of Town of North Hampton (May 7, 2014).
North Hampton’s Firefighters, including its EMTs, are unionized. The Town decided to adopt a paramedic program, and went on to set the initial wage/benefits to be paid to paramedics. The PELRB held that this was an unfair labor practice, and the Supreme Court agreed.
The Town argued that the creation of a new program falls within “managerial prerogative” under RSA 273-A:1, XI – and that the cost of a program is part of the discretionary legislative act of creating the program. No one disagreed that the creation of a new program is managerial prerogative. But the overall cost of program is simply not the same issue as the wage/benefits to be paid to individuals hired for the program.
The key question was whether the program’s participants were subject to bargaining. The answer was yes, because under state law a paramedic is also an EMT, and EMTs were already included in the certified bargaining unit.
COMMENT. The distinction between a program’s overall cost, versus the individual wages & benefits covered under a collective bargaining agreement, also helps explain why multi-year CBAs can be ratified by the local legislative body without the supermajority required for bonds or notes. The legislative body is permitted (at least legally!) to cut appropriations in future years, even though due to a CBA, such a cut may require reductions in program personnel.
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3. CHIEFS OF POLICE: Non-Renewal Of Set Term Contract Does Not Constitute ‘Dismissal.’ Kassotis v. Town of Fitzwilliam (August 28, 2014).
RSA 105:2-a prohibits a municipality from “dismissing” an appointed chief of police without good cause and a written statement of reasons. Such a chief is also entitled to a hearing in superior court.
The question here was whether that statute prohibits a town from entering into a definite-term contract with a chief of police (here 2 years), and then deciding not to renew it without triggering with the “for cause” provisions. The Court (Justice Hicks) held that non-renewal is not a “dismissal” and hence does not trigger the “for cause” standard. The Court’s opinion is based on a close exegesis of the word “dismissal,” and cites several decisions from other jurisdictions. The Court even held that the statute was unambiguous, and hence that evidence of legislative intent was not relevant.
COMMENT: Several municipal clients of ours have wondered whether – in light of RSA 105:2-a – it is permissible to hire a chief of police using a probationary period (or instead, whether such a chief becomes subject to a “for cause” standard if the Town wishes to terminate at the end of the probationary period).
This case would appear to sanction such a “probationary period” for police chiefs – as long as the contract is very carefully drafted.
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[End of Waugh, 2014 Municipal Law Update]